APPENDIX - SECTION 19 ADVISORY COMMITTEE
19.1 Functions of Advisory Committee. There shall be formed a committee of the Partnership (the "Advisory Committee") consisting only of Limited Partner representatives determined by the General Partner in its sole discretion, provided, however that no member of the Advisory Committee shall be an Affiliate of the General Partner or an employee or member of the General Partner. The Advisory Committee shall consist of three members. The General Partner shall disclose to the Advisory Committee reasonably detailed information about (A) investments made by the General Partner, a Managing Director or an Affiliate of a Managing Director in Portfolio Companies (other than through the Partnership), (B) transactions entered into between the Partnership and the General Partner, a Managing Director or an Affiliate of a Managing Director other than transactions contemplated herein, and (C) such other conflict of interest matters as the General Partner may from time to time submit to the Advisory Committee for approval, including but not limited to any material conflict of interest that comes to the General Partner's attention. The Advisory Committee shall, without limitation, approve any extension of the term of the Partnership in accordance with Section 4, review the valuation of the Portfolio Secunties as set forth in Section 15 at least annually, and, upon the Step Down Date, approve the amounts reserved for additional investment in Portfolio Companies, at least annually, and advise the General Partner on such matters about which the General Partner may from time to time in its sole and absolute discretion determine to consult the Advisory Committee. Except as set forth herein, the recommendations of the Advisory Committee shall not obligate the General Partner to act in accordance therewith but shall be advisory only. Any member of the Advisory Committee may resign as such by giving to the General Partner thirty (30) days' written notice of such resignation. The General Partner shall promptly give written notice to the Limited Partners of (l) any death or resignation of a member of the Advisory Committee, and (ii) the identity of each member added to the Advisory Committee. The Advisory Committee shall meet at least twice per year.
19.2 Procedures for Advisory Committee. Effective action by the Advisory Committee may be accomplished either at a meeting at which at least two members of the Advisory Committee is present (including without limitation a telephone conference meeting at which a majority of the members of the Advisory Committee participate and are able to hear one another through telephone conference or similar equipment) by a vote of at least two members or by action approved in writing by at least two members of the Advisory Committee.
19.3 Exculpation. The members of the Advisory Committee shall exercise their best judgment in carrying out their functions for the Partnership. No member of the Advisory Committee shall be liable to the Partnership or any Partner except to the extent that such member acted in
bad faith. Each member of the Advisory Committee shall be fully protected and justified with respect to any action or omission taken or suffered by him in good faith if such action or omission is taken or suffered in reliance upon and in accordance with the opinion or advice as to matters of law of legal counsel, or as to matters of accounting of accountants, or as to matters of valuation of investment bankers or appraisers, selected by any of them with reasonable care.
SECTION 20. GENERAL PROVISIONS
20.1 Amendments.
(a) This Agreement may be amended by an instrument in writing signed by the General Partner and Two-thirds in Interest of the Limited Partners (excluding any Interest held by the General Partner);provided, however, that:
(1) the General Partner may amend this Agreement without the approval or consent of the Limited Partners:
(A) to amend Exhibit A to reflect the name, number of Units held and Required Capital of each Partner as the same may change from time to time in accordance with the express provisions of this Agreement;
(B) to allow the admission of a successor to the General Partner as the general partner of the Partnership in connection with a reorganization of the General Partner accomplished in accordance with Section 17;
(C) to take such action in light of changing regulatory conditions as is necessary in order to permit the Partnership to continue in existence, subject to the requirement that the Limited Partners not be materially and adversely affected;
(D) to add to the representations, duties or obligations of the
General Partner, or to surrender any right granted to the
General Partner herein, for the benefit of the Limited
Partners;
(E) to cure any ambiguity, or to correct any clerical mistake or
to correct or supplement any immatenal provision herein
and to make changes that will not be inconsistent with this
Agreement, to satisfy any requirements, conditions or
guidelines contained in any opinion, directive, order, ruling
or regulation of any federal or state statute, in both cases,
subject to the requirement that the Limited Partners not be
materially and adversely affected and that the Advisory
Committee has approved such amendment (which
approval shall not be unreasonably withheld);
(F) to make changes to ensure that the Partnership will not be
treated as an association or a publicly traded partnership
taxable as a corporation for federal income tax purposes or
to prevent the Partnership from in any manner being
deemed an "investment company" subject to registration
under the Investment Company Act or in connection with
qualifying the Partnership to permit limited liability under
the laws of any state or foreign junsdiction or to prevent
the Partnership or any Partner from being materially and
adversely affected because of legal restrictions applicable
to any Partner or to the Partnership with respect to any
Partner, provided that such change does not cause any BHC
Partner to violate the BHC Act or otherwise materially and
adversely affect the Limited Partners;
(G) to change the name of the Partnership;
(H) to take such action as may be necessary or appropriate to avoid the assets of the Partnership being treated for purposes of ERISA or Section 4975 of the Code as the assets of any "employee benefit plan" as defined in and subject to ERISA or of any plan or account subject to relative to other Limited Partners shall be permitted without the consent of each ERISA Partner.
(f) Without the written consent of each Partner directly and adversely affected (or any of whose owners are so affected), no amendment to this Agreement shall: (1) provide any Partner with a preference or pnonty over any other Partner as to a return of its Capital Contribution or any other distribution of assets of the Partnership to Partners, (n) increase or decrease the Required Capital of any Partner, (in) make any Limited Partner a General Partner, or (iv) amend Sections 9.1(d), 9.11 or 9.12.
(g) Section 9.9 shall not be amended to increase the Management Fee unless such amendment is approved by the General Partner and Limited Partners holding at least 90% of the Limited Partners' Voting Interests.
(h) No amendment may change a required percentage for consent or action required hereunder unless approved by Limited Partners holding such percentage of the Limited Partners' Voting Interests equal to or greater than such percentage.
20.2 Notices. Any notice, demand, or other communication required or permitted to be given by any provision of this Agreement shall be in writing and shall be deemed to have been delivered and given for all purposes (l) if delivered personally to the party or to an officer of the party to whom the same is directed, (n) whether or not the same is actually received, if sent by registered or certified mail, return receipt requested, postage and charges prepaid, (in) if sent by regularly scheduled overnight air courier service or (iv) if sent by facsimile or electronic transmission; if to a Limited Partner, at such Limited Partner's street address or to such Limited Partner's facsimile number or electronic mail address set forth on Exhibit A hereto, or to such other street address, facsimile number or electronic mail address as such Limited Partner may from time to time specify by written notice to the General Partner. Such communication shall be deemed to have been given (w) as of the date so delivered to the Partner to whom the notice is given if delivered personally, (x) five (5) Business Days after the date on which the same was deposited in a regularly maintained receptacle for the deposit of United States mail, addressed and sent as aforesaid, or upon receipt if this occurs prior to the expiration of such five (5)-day period, (y) upon transmission if sent by facsimile or electronic transmission and receipt of such transmission is acknowledged by answerback or other means, and (z) the next Business Day after timely delivery to a regularly scheduled overnight air couner service if sent for next business day delivery.
20.3 Survival of Rights. This Agreement shall be binding upon and, as to permitted or accepted successors, transferees and assigns, mure to the benefit of the Partners and the Partnership and their respective heirs, legatees, legal representatives, successors, transferees and permitted assigns, in all cases whether by the laws of descent and distnbution, merger, reverse merger, consolidation, sale of assets, other sale, operation of law, or, without limitation, otherwise.
20.4 Construction. It is the intent of the parties that the language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against the Limited Partners or the General Partner.
20.5 Section Headings. The captions of the sections in this Agreement are for convenience only and shall not be used in construing or interpreting this Agreement.
20.6 Agreement in Counterparts. This Agreement and any amendments hereto may be executed in multiple counterparts, each of which shall be deemed an original agreement and all of which shall constitute one and the same agreement, notwithstanding the fact that all Partners are not signatones to the onginal or the same counterpart.
20.7 Governing Law. This Agreement shall be construed according to the internal laws, and not the laws pertaining to choice or conflict of laws, of the State of Delaware.
20.8 Additional Documents. Each Partner, upon the request of the General Partner, agrees to perform all further acts and execute, acknowledge and deliver all further documents which may be reasonably necessary, appropnate or desirable to carry out the provisions of this Agreement, including but not limited to acknowledging before a Notary Public any signature heretofore or hereafter made by a Partner.
20.9 Severability. Should any portion or provision of this Agreement be declared illegal, invalid or unenforceable in any junsdiction, then such portion or provision shall be deemed to be severable from this Agreement as to such junsdiction to the extent practicable while preserving the economic intention of the parties (but, to the extent permitted by law, not elsewhere) and in any event such illegality, invalidity or unenforceability shall not affect the remainder hereof.
20.10 Pronouns. All pronouns and defined terms and any variations thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person, persons, entity or entities may require.
20.11 Implications of Endorsement. The General Partner shall use its commercially reasonable efforts to prevent the Partnership and each Portfolio Company from in any way stating or implying (or permitting to be stated or implied) that an investment by a Limited Partner in such Portfolio Company indirectly through the Partnership indicates in any way an endorsement, scientific or otherwise, of the product or services offered by such Portfolio Company.
20.12 Entire Agreement. This Agreement, together with the Subscription Agreements and any other written agreement between the General Partner and any Limited Partner concurrently with or after becoming a Limited Partner and relating to the subject matter of this Agreement (it being acknowledged and agreed that the General Partner, on its own behalf or on behalf of the Partnership, without the consent of any other Person and notwithstanding the provisions of this Agreement, including Article 11, or of any Subscnption Agreement, can enter into side letters or similar agreements to or with a Limited Partner which establish rights under, or alter or supplement the terms of, this Agreement or any Subscnption Agreement), constitutes the entire agreement between the parties pertaining to that subject matter and fully supersedes any and all pnor agreements or understandings between them pertaining to that subject matter. Any provisions of any side letter or similar agreement to or with a Limited Partner will govern with respect to the Limited Partner, notwithstanding the provisions of this Agreement or any Subscription Agreement.
20.13 Arbitration. To the extent permitted by law, any dispute relating to this Agreement or the Partnership which cannot be amicably resolved among the parties shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association then prevailing, and the decisions of the arbitrators shall be final and binding on all the parties. The costs of the arbitration (other than fees and expenses of counsel, which shall be the responsibility of the parties retaining such counsel) shall be allocated among the parties as determined by the arbitrator.
20.14 Confidentiality. Each Partner agrees that the provisions of this Agreement, all understandings, agreements and other arrangements between and among the parties hereto and all other nonpublic information received from, or otherwise relating to, the Partnership, any Partner or any Portfolio Company shall be confidential, and will use its best efforts not to disclose or otherwise release to any other Person such confidential matters without the written consent of the General Partner, except that each Partner may disclose such propnetary or confidential information (1) to its officers, directors, trustees, equity owners, wholly-owned subsidianes, Affiliates, employees and outside experts (including but not limited to its consultants, attorneys and accountants) on a need to know basis so long as such Persons are advised of the confidentiality provisions of this Section 20.14, (n) as required by legal process, law or any governmental, administrative or regulatory proceeding authonty, (m) in connection with any required governmental, administrative or regulatory filing or periodic examination by a governmental regulatory authonty with jurisdiction over such Partner, (iv) to the extent that the information can be established by such Partner to have been nghtfuHy received by such Partner from a third party without confidential limitations or to have been rightfully in such Partners' possession prior to the Partnership's conveyance of such information to such Partner, or (v) to the extent that the information provided by the Partnership is otherwise generally available in the public domain.
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SECTION 19 ADVISORY COMMITTEE