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EXHIBIT 10.4
RSA PARTNERS I, L.P.
(A Delaware Limited Partnership)
LIMITED PARTNERSHIP AGREEMENT
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
RSA PARTNERS I, L.P. AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND
RISKS INVOLVED. THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS LIMITED
PARTNERSHIP AGREEMENT HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS LIMITED PARTNERSHIP
AGREEMENT ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM AND WITH THE APPROVAL OF THE GENERAL PARTNER OF RSA
PARTNERS I, L.P. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR
THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
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RSA PARTNERS I, L.P.
(A Delaware Limited Partnership)
Limited Partnership Agreement
Table of Contents
Page
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1. Firm Name; Registered Office and Agent.........................................................................1
2. Purpose; Powers................................................................................................1
3. General Partner................................................................................................2
4. Limited Partners; Limited Liability; Non-Competition Covenant of Certain Limited Partners......................3
5. Capital of the Partnership; Admission of Additional Limited Partners...........................................4
6. Accounts.......................................................................................................7
7. Allocations....................................................................................................9
8. Distributions.................................................................................................13
9. Valuations....................................................................................................16
10. Term of Partnership; Dissolution..............................................................................18
11. Retirement of a Class B or Class C Limited Partner............................................................19
12. Liquidation of Partnership Interests..........................................................................23
13. Limitation on Assignability of Partners' Interests............................................................25
14. Withdrawal of Partnership Interests...........................................................................26
15. Indemnification...............................................................................................26
16. Fiscal Year; Records and Reports; Accounting Method; Organizational Expenses..................................27
17. Amendment.....................................................................................................28
18. General Provisions............................................................................................29
19. Definitions...................................................................................................33
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LIMITED PARTNERSHIP AGREEMENT ("Agreement"), dated as of this 10th day
of April, 2001, by and among RSA Ventures, Inc., as general partner (the
"General Partner"), the entity listed in Schedule A as the Class A limited
partner (the "Class A Limited Partner"), the individuals listed in Schedule A as
the Class B limited partners (such Class B limited partners and any additional
or substituted Class B limited partners admitted to RSA Partners I, L.P., a
Delaware limited partnership (the "Partnership"), after the date of this
Agreement being referred to herein individually as a "Class B Limited Partner"
and collectively as the "Class B Limited Partners"), and the individuals listed
in Schedule A as the Class C limited partners (such Class C limited partners and
any additional or substituted Class C limited partners admitted to the
Partnership after the date of this Agreement being referred to herein
individually as a "Class C Limited Partner" and collectively as the "Class C
Limited Partners"). The Class A Limited Partner, the Class B Limited Partners
and the Class C Limited Partners are sometimes referred to herein individually
as a "Limited Partner" and collectively as the "Limited Partners". The General
Partner, the Limited Partners and any Retired Limited Partners (as defined in
Paragraph 11(e)) are sometimes referred to herein individually as a "Partner"
and collectively as the "Partners".
The Partners agree to form and carry on the Partnership subject to the
terms of this Agreement in accordance with the provisions of the Delaware
Revised Uniform Limited Partnership Act (the "Delaware Act").
1. Firm Name; Registered Office and Agent. The name of the Partnership
is RSA Partners I, L.P. The initial address of the Partnership's registered
office in Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington,
County of New Castle, and its initial registered agent at such address for
service of process is The Corporation Trust Company.
2. Purpose; Powers. The purpose of the Partnership is to act as the
general partner of RSA Ventures I, L.P. (the "Fund"), a Delaware limited
partnership organized pursuant to a limited partnership agreement of even date
herewith (as the same may be amended from time to time, the "Fund Agreement"),
and otherwise to engage in any lawful act or activity ancillary to
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such purpose. The Partnership shall have all the powers available to it as a
limited partnership under the laws of Delaware.
3. General Partner.
(a) The name, street and e-mail addresses and telecopy number
of the General Partner, its commitment to contribute capital to the Partnership
and its percentage interest for purposes of apportioning certain allocations and
distributions of the Partnership (the "Percentage Interest") are set forth in
Schedule A. Schedule A shall be amended from time to time to reflect any change
in the General Partner's street or e-mail address or telecopy number, any
additional commitment to contribute capital to the Partnership by the General
Partner, any reduction or termination of the General Partner's commitment to
make capital contributions to the Partnership, and any change in the General
Partner's Percentage Interest.
(b) Subject to the provisions of this Agreement, the
management, policies and control of the Partnership shall be vested exclusively
in the General Partner. Limited Partners may, to the extent expressly provided
in this Agreement, possess or exercise any of the powers, or have or act in any
of the capacities, permitted under Section 17-303(b) of the Delaware Act.
(c) The General Partner shall execute and file with the
appropriate public authorities the certificate of limited partnership of the
Partnership and any amendments thereto (as the same may be amended from time to
time, the "Certificate of Limited Partnership").
(d) The General Partner and its officers, directors,
employees, stockholders, committee members, agents and controlling persons shall
not be liable to the Partnership or any other Partner for any loss suffered by
the Partnership or any other Partner unless the General Partner or such officer,
director, employee, stockholder, committee member, agent or controlling person,
as the case may be, did not act in good faith in the reasonable belief that his
or its course of conduct was in, or not opposed to, the best interests of the
Partnership or the Fund or acted in such a manner that constituted fraud,
willful misconduct or gross negligence.
(e) The General Partner shall not cause or permit the
Partnership to elect to be (i) excluded from the provisions of Subchapter K of
the Internal Revenue Code of 1986, as
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amended (the "Code"), or (ii) treated as a corporation for United States federal
income tax purposes. The General Partner shall cause the Partnership to make any
election reasonably determined to be necessary or appropriate in order to ensure
the treatment of the Partnership as a partnership for United States federal
income tax purposes. The General Partner shall not take any action that would be
inconsistent with the treatment of the Partnership as a partnership for United
States federal income tax purposes and shall ensure that any tax returns to be
filed by the Partnership shall be filed by it as a partnership for United States
federal income tax purposes.
4. Limited Partners; Limited Liability; Non-Competition Covenant
of Certain Limited Partners.
(a) The names, street and e-mail addresses and telecopy
numbers of the Limited Partners and the Retired Limited Partners (if any), their
commitments to contribute capital to the Partnership and their Percentage
Interests are set forth in Schedule A. Schedule A shall be amended from time to
time to reflect any change in the street or e-mail address or telecopy number of
a Limited Partner or Retired Limited Partner, any additional commitment to
contribute capital to the Partnership by a Limited Partner or Retired Limited
Partner, any reduction or termination of a Limited Partner's or Retired Limited
Partner's commitment to make capital contributions to the Partnership, any
change in a Limited Partner's or Retired Partner's Percentage Interest, the
admission of an additional Limited Partner, the retirement of a Limited Partner,
the withdrawal of a Limited Partner or Retired Limited Partner and the transfer
of all or any part of the interest of a Limited Partner or Retired Limited
Partner.
(b) The liability of each Limited Partner to the Partnership,
in its capacity as such, shall be limited to (i) any unpaid capital
contributions which he agreed to make to the Partnership, to the extent provided
in Section 17-502(b) of the Delaware Act, (ii) any distribution which he is
required to return to the Partnership pursuant to the Delaware Act, and (iii)
any payments which he is required to make pursuant to Paragraph 12(h) hereof.
(c) With respect to each of Barry Rosenbaum, Fergal Mullen,
David Clark, James Horn, Bradley H. Taylor and Charles R. Stuckey, Jr. only, for
so long as such person is a
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Limited Partner and for a period of one year following the date such person
becomes a Retired Limited Partner, such person shall not, without the General
Partner's prior written consent, directly or indirectly, alone or as a partner,
member, officer, director, employee, consultant or stockholder of any entity,
participate in the formation or management of an investment partnership or other
similar entity directly or indirectly sponsored, controlled, managed or owned in
principal part by any Named Firm (as defined below) if such investment
partnership or other similar entity competes directly with the Fund. For
purposes of this Agreement, a "Named Firm" shall mean an entity which is listed
as such by the General Partner in writing to the persons named in the first
sentence of this Paragraph 4(c). The General Partner may amend such list of
entities from time to time upon 30 days' prior written notice to the persons
subject to this Paragraph 4(c). At no time shall the then current list of Named
Firms exceed 20. The successors, assigns and affiliates of each entity that is
listed as a Named Firm shall also be considered a Named Firm, but such entities
shall not count as additional entities towards the 20 entity maximum. The
provisions of this Paragraph 4(c) shall apply to the persons named in the first
sentence above and to any additional Limited Partner who, at the time of
admission to the Partnership as a Limited Partner, agrees in writing with the
General Partner to be bound by such provisions.
5. Capital of the Partnership; Admission of Additional Limited
Partners.
(a) On the date of this Agreement, each of the Partners shall
contribute to the Partnership such amount as is necessary for the Partnership to
meet its subscription obligations to the Fund. The amount set forth opposite
each Partner's name under the column marked "Subscription" in Schedule A shall
be referred to as such Partner's "Subscription". In addition, each of the
Partners shall from time to time contribute to the capital of the Partnership at
such time or times as the General Partner may determine the amounts necessary to
increase the aggregate amount of his contributions to the Partnership to an
amount equal to, but not in excess of, his Subscription. Not less than five
days' prior written notice shall be given to each Partner as to the date for
each capital contribution. The amount of capital required to be contributed by
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each Partner on each occasion of a capital contribution shall be computed by the
General Partner so that each Partner contributes that portion of the aggregate
capital contributions to be made by all Partners at such time which such
Partner's Subscription bears to the total Subscriptions of all Partners. All
capital contributions shall be made in cash. Notwithstanding anything to the
contrary contained in this Agreement, the General Partner may at any time and by
written notice to the Partners, reduce on a pro-rata basis or terminate all
outstanding commitments of the Partners to make further capital contributions to
the Partnership with respect to their Subscriptions and, upon the giving of such
notice, the obligation of the Partners to make additional capital contributions
with respect to their Subscriptions shall be so reduced or terminated, as the
case may be, and the amount of each Partner's Subscription shall be reduced
accordingly.
(b) If a Class B Limited Partner, Class C Limited Partner or
Retired Limited Partner does not make in full a capital contribution required by
Paragraph 5(a) when due, notice of default shall be given to him by the General
Partner by personal delivery or certified or registered mail. If the full amount
of such contribution is not received by the Partnership within 20 days after the
mailing of such notice, as liquidated and agreed current damages for such
default (it being agreed that it would be difficult to fix the actual damages),
each of such defaulting Partner's Contributions Account and Capital Account
established pursuant to Paragraph 6 shall be reduced by an amount equal to 75%
of each such account at the time of such default, each of which 75% amount shall
thereupon be allocated, in the case of the Contributions Account amount, pro
rata to and among the respective Contributions Accounts of the non-defaulting
Partners in such proportion as the Contributions Account of each such
non-defaulting Partner then bears to the sum of the Contributions Accounts of
all non-defaulting Partners, and, in the case of the Capital Account amount, pro
rata to and among the respective Capital Accounts of the non-defaulting Partners
in such proportion as the Capital Account of each such non-defaulting Partner
then bears to the sum of the Capital Accounts of all non-defaulting Partners,
and such defaulting Partner's Percentage Interest shall be reduced by an amount
equal to 75% of
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such Percentage Interest at the time of such default, with the amount by which
such Percentage Interest is reduced being allocated to the Class A Limited
Partner.
In addition, if the aforesaid liquidated damages provisions have been
applied with respect to a defaulting Class B Limited Partner, Class C Limited
Partner or Retired Limited Partner, such Partner shall irrevocably lose his
right to vote upon or take any other action on any matter to which such Partner
would otherwise be entitled under this Agreement.
The application of the aforesaid liquidated damages provisions with
respect to any defaulting Partner shall not relieve such Partner of his
obligation to make any subsequent required capital contribution when due or
relieve such Partner from the application of the aforesaid liquidated damages
provisions as to any subsequent required capital contribution if he defaults
with respect thereto.
If the General Partner or the Class A Limited Partner defaults with
respect to any required capital contribution, the Partnership shall seek
specific performance of such defaulting Partner's obligation to make such
capital contribution and/or such other monetary and other damages as may be
available at law or in equity.
(c) The General Partner is authorized to select and admit
additional parties as Class B or Class C Limited Partners at any time upon the
approval of (i) the Class A Limited Partner and (ii) holders of a majority in
interest of the Class B Limited Partners; provided, however, that if the
Percentage Interest of an additional Class B or Class C Limited Partner is
allocated solely from the Percentage Interest of the Class A Limited Partner,
such party may become an additional Class B or Class C Limited Partner without
any approval of the Class B or Class C Limited Partners. The terms of such
admissions of additional Class B and Class C Limited Partners (including their
Subscriptions and Percentage Interests) shall be fixed by the General Partner,
acting in accordance with the terms and provisions of this Agreement, at the
time of admission.
(d) Each person who is to be admitted as an additional Class B
or Class C Limited Partner shall execute, together with the General Partner, an
amendment to this
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Agreement providing for such admission. The admission of additional Class B and
Class C Limited Partners to the Partnership shall be effective upon the date
specified therefor in the amendment providing for such admission. Such amendment
shall set forth the Subscription and Percentage Interest of such additional
Class B or Class C Limited Partner, provided that in no event shall the
aggregate Percentage Interests of the Partners exceed 100%.
(e) Each person who is to be admitted to the Partnership as an
additional Class B or Class C Limited Partner shall make a capital contribution
to the Partnership on the date of his admission in an amount equal to the same
percentage of his Subscription as is equal to the percentage of the other
Partners' Subscriptions which they have been required to contribute on or before
that date. Notwithstanding anything to the contrary herein, if an additional
Class B or Class C Limited Partner is admitted to the Partnership, the amount of
his Percentage Interest shall first be allocated solely out of the Percentage
Interest of the Class A Limited Partner, but only to the extent of any
Percentage Interest previously reallocated (and not subsequently reallocated to
an additional Class B or Class C Limited Partner under this paragraph) to the
Class A Limited Partner from a Retired Limited Partner pursuant to Paragraph
11(e) or from a defaulting Partner pursuant to Paragraph 5(b), in which case the
Percentage Interest of the Class A Limited Partner shall be reduced by the
amount of the Percentage Interest reallocated to the additional Class B or Class
C Limited Partner. To the extent that the Percentage Interest allocated to the
newly admitted Class B or Class C Limited Partner is not allocated solely from
the Class A Limited Partner's Percentage Interest, each Partner's Percentage
Interest shall be reduced on a pro rata basis (determined in accordance with
their preexisting Percentage Interests after adjusting for any allocation solely
from the Class A Limited Partner), so that the total of such reductions equals
such excess Percentage Interest allocated to such newly admitted Class B or
Class C Limited Partner.
6. Accounts.
(a) There shall be established on the books of the Partnership
a capital contributions account ("Contributions Account") for each Partner which
shall consist of (i) all
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capital contributions made by such Partner to the Partnership pursuant to
Paragraph 5(a) and any amounts from time to time added to the Contributions
Account of such Partner pursuant to Paragraph 5(b) and (ii) decreased by all
amounts from time to time subtracted from the Contributions Account of such
Partner pursuant to Paragraph 5(b).
(b) There shall also be established on the books of the
Partnership a capital account ("Capital Account") for each Partner which shall
consist of (i) (A) all capital contributions made by such Partner to the
Partnership pursuant to Paragraph 5(a), (B) any amounts from time to time added
to the Capital Account of such Partner pursuant to Paragraph 5(b) and (C) all
amounts from time to time added to the Capital Account of such Partner pursuant
to Paragraph 7, and (ii) decreased by (A) any distributions to such Partner and
(B) any amounts from time to time subtracted from the Capital Account of such
Partner pursuant to Paragraph 5(b) or 7.
(c) If a Partner holds more than one class of interest in the
Partnership (e.g., as both a General Partner and a Limited Partner), such
Partner shall have only one Capital Account for purposes of the provisions of
Paragraph 7(e) and the liquidating distribution provisions of Paragraph 12,
although separate sub-accounts may be maintained with respect to each class of
interest so held for all other purposes of this Agreement.
(d) For purposes of maintaining and determining Capital
Accounts when Partnership property is distributed to any Partner in kind, (i)
the Partnership shall treat such property as if it had been sold for its fair
market value on the date of distribution as determined in accordance with
Paragraph 9; (ii) any gain or loss deemed to have been realized by the
Partnership on such distribution shall be allocated to the Capital Accounts of
the Partners pursuant to Paragraph 7(c); and (iii) the Capital Account of any
Partner receiving a distribution of Partnership property shall be reduced by the
fair market value of the property so received, net of any liabilities secured by
such distributed property that such Partner is considered to assume or take
subject to under Section 752 of the Code.
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7. Allocations.
(a) Partnership income, gain or loss shall be allocated to the
Capital Accounts of the Partners in accordance with this Paragraph 7. The
Partners intend generally that, with respect to amounts allocable to the
Partnership by the Fund pursuant to the Fund Agreement, (A) all such amounts
that are attributable to the Partnership's capital contributions to the Fund
shall be shared among the Partners in proportion to their respective
Contributions Accounts, and (B) all remaining amounts shall be shared among the
Partners in proportion to their respective Percentage Interests. The Partners
intend generally that, with respect to Partnership Net Realized Gain or Loss and
Deemed Gain or Loss (each as defined below) allocable to the Partners pursuant
to this Agreement, all such amounts shall be shared among the Partners in
proportion to their respective Contributions Accounts. For purposes of this
Agreement:
(1) "Partnership Net Realized Gain or Loss" for a
calendar year means the sum of the Partnership's (i) net gain or loss
realized from the sale or exchange of capital assets and (ii) income,
gain, loss or expense (and, in the case of organizational expenses,
only that portion allocable to such year for tax accounting purposes
pursuant to Paragraph 16(e)) not included in clause (i), including any
income which is exempt from federal income tax and any expense properly
chargeable to the Partnership for such year, whether deductible or
non-deductible, and whether described in Section 705(a)(2)(B) of the
Code or treated as so described pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(i). Unrealized gain or loss, including Deemed Gain or
Loss, shall not be taken into account for these purposes.
(2) "Fund Net Realized Gain or Loss" for a calendar
year means the "adjusted net realized gain or loss" (as defined in the
Fund Agreement) of the Fund allocated to the Partnership in its
capacity as the general partner of the Fund with respect to such year.
(3) "Deemed Gain or Loss" means, in the case of the
distribution of Partnership assets (other than cash) to Partners, the
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difference between the fair market value of such assets (net of any
liabilities secured by such distributed assets that the distributees
are considered to assume or take subject to under Section 752 of the
Code) and the cost of such assets, determined in each case at the time
of such distribution.
(4) Unless the context requires otherwise, the "cost"
of Partnership assets shall mean the Partnership's adjusted tax basis
of such assets for federal income tax purposes, provided that, if the
Partnership has made an election under Section 754 of the Code, such
tax basis shall be determined after giving effect to adjustments made
under Section 734 of the Code but without regard to adjustments made
under Section 743 of the Code; provided, however, that in the case of a
distribution by the Partnership of securities of entities in which the
Fund may invest (collectively, "Fund Portfolio Companies" and
individually, a "Fund Portfolio Company") previously received by the
Partnership as a distribution from the Fund, the assumed cost of such
securities shall be the fair market value of such assets at the time
the Partnership received the distribution from the Fund.
(5) "Restoration Amount" means with respect to any
Partner and at any time, the sum of (a) the amount of such Partner's
Subscription that such Partner has not contributed in cash to the
Partnership as of such time, and (b) the aggregate amount of
distributions such Partner has received from the Partnership as of such
time.
(b) The Partnership Net Realized Gain or Loss for each
calendar year shall be allocated to and among the Partners' Capital Accounts in
proportion to the balances in their respective Contributions Accounts at the end
of such year.
(c) Any Deemed Gain or Loss resulting from a distribution of
Partnership assets in kind to the Partners shall be allocated to and among the
Partners' Capital Accounts at the time such distribution is made on the same
basis as an equivalent amount of Partnership Net Realized Gain or Loss would be
allocated pursuant to Paragraph 7(b) for a hypothetical calendar year ending
immediately prior to such distribution. For this purpose, there shall be taken
into account Deemed Gain or Loss from distributions previously made during the
calendar year, but
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there shall not be taken into account other items of Partnership income, gain,
loss or deduction realized or incurred since the end of the prior year (such
items being taken into account and allocated to Partners' Capital Accounts as
Partnership Net Realized Gain or Loss only at the end of the year). An
allocation made to Partners' Capital Accounts pursuant to this Paragraph 7(c)
shall be deemed to have occurred immediately prior to such distribution for
purposes of Paragraph 8(c).
(d) (1) Any Fund Net Realized Gain or Loss, and any of the
Partnership's allocable share of any gain or loss deemed to have been realized
by the Fund upon the distribution by the Fund to its partners of securities of
Fund Portfolio Companies ("Fund Deemed Gain or Loss") shall be allocated to and
among the Capital Accounts of the Partners as follows:
(i) to all Partners in proportion to their
Contributions Accounts, to the extent that such Fund Net Realized Gain or Loss
and any Fund Deemed Gain or Loss is attributable to the Partnership's capital
contributions to the Fund (rather than to its 20% "carried interest" in the
Fund's cumulative net profits); and
(ii) to all Partners in proportion to their
respective Percentage Interests, to the extent that such Fund Net Realized Gain
or Loss and any Fund Deemed Gain or Loss is attributable to the Partnership's
20% "carried interest" in the Fund's cumulative net profits (rather than to its
capital contributions to the Fund).
(d) (2) Subject to the terms of subparagraphs (e), (f) and (h)
of this Paragraph 7, Fund Deemed Gain or Loss shall be allocated to and among
the Capital Accounts of the Partners at the time such distribution is made by
the Fund on the same basis as an equivalent amount of Fund Net Realized Gain or
Loss would be allocated pursuant to Paragraph 7(d)(1) for a hypothetical
calendar year ending immediately prior to such distribution.
(e) (1) If and to the extent that any allocation of
Partnership Net Realized Loss, Fund Net Realized Loss, Deemed Loss or Fund
Deemed Loss (or portion thereof) to any Partner would cause such Partner's
Capital Account to be negative by an amount which exceeds such Partner's
Restoration Amount or would further reduce a balance in such Partner's Capital
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Account that is already negative by an amount which exceeds such Partner's
Restoration Amount, then such loss (or portion thereof) shall be allocated (A)
first to the Capital Accounts of the other Partners in proportion to the
positive balances in their respective Capital Accounts until such Capital
Accounts are reduced to zero, (B) then to the Capital Accounts of Partners with
Restoration Amounts, in proportion to their respective Restoration Amounts,
until each Partner's Capital Account is negative by an amount equal to such
Partner's Restoration Amount, and (C) any remaining loss shall be allocated to
the Capital Account of the General Partner.
(e) (2) If any Partner unexpectedly receives an adjustment,
allocation or distribution described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6), there shall be allocated to such Partner
items of income and gain (consisting of a pro rata portion of each item of
Partnership income, including gross income, and gain for such calendar year) in
an amount and manner sufficient to eliminate such Partner's deficit Capital
Account balance, to the extent required by Treasury Regulation Section
1.704-1(b)(2)(ii)(d), as quickly as possible. The foregoing sentence is intended
to constitute a "qualified income offset" provision as described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d), and shall be interpreted and applied in
all respects in accordance with that Section.
(e) (3) The allocations set forth in Paragraph 7(e)(1) and (2)
hereof (the "Regulatory Allocations") are intended to comply with certain
requirements of Treasury Regulation Section 1.704-1(b). Notwithstanding any
other provisions of this Paragraph 7 (other than the Regulatory Allocations),
the Regulatory Allocations shall be taken into account in allocating other
Partnership Net Realized Gain or Loss, Fund Net Realized Gain or Loss, Deemed
Gain or Loss, Fund Deemed Gain or Loss, and items of income, gain, loss and
deduction among the Partners so that, to the extent possible, each Partner shall
have a Capital Account balance which is equal to what such balance (as so
adjusted) would have been if the Regulatory Allocations had not occurred.
(f) Notwithstanding the foregoing, with respect to any
calendar year during which any Partner's interest in the Partnership changes by
reason of the admission of a Partner,
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the withdrawal of a Partner, a non-pro-rata contribution of capital to the
Partnership, a redetermination of Percentage Interest or any other event
described in Section 706(d)(1) of the Code and regulations issued thereunder,
allocations of Partnership Net Realized Gain or Loss, Fund Net Realized Gain or
Loss, Deemed Gain or Loss and Fund Deemed Gain or Loss made pursuant to this
Paragraph 7 shall be adjusted appropriately to take into account the varying
interests of the Partners in the Partnership during such year. The Tax Matters
Partner (as defined in Paragraph 18(i)) shall consult with the Partnership's
accountants and shall select the method of making such adjustments, which method
shall be used consistently thereafter.
(g) For federal, state and local income tax purposes,
Partnership income, gain, loss, deduction or credit (or any item thereof) for
each fiscal year shall be allocated to and among the Partners in order to
reflect the allocation of Partnership Net Realized Gain or Loss, Fund Net
Realized Gain or Loss, Deemed Gain or Loss and Fund Deemed Gain or Loss pursuant
to the provisions of this Paragraph 7 for such fiscal year (other than
allocations of items which are not deductible or are excluded from taxable
income), taking into account any variation between the adjusted tax basis and
book value of Partnership property in accordance with the principles of Section
704(c) of the Code.
8. Distributions.
(a) (i) Except as otherwise provided herein, the Partnership
shall distribute to each Partner in cash, with respect to each calendar year,
either during such year or within 90 days thereafter, an amount (a "Partnership
Tax Distribution") equal to the aggregate United States federal and state income
tax liability such Partner would have incurred as a result of such Partner's
ownership of an interest in the Partnership, determined:
(A) as if such Partner were (1) subject to
tax as a resident or domiciliary of the State of California or
the Commonwealth of Massachusetts, whichever imposes the
greater amount of tax, and (2) subject to tax on all taxable
income and gains allocated to such Partner by the Partnership
with respect to such fiscal year (net of all items of
deductible loss or expense so allocated but
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excluding expenses otherwise deductible by a natural person
only under Section 212 of the Code) at the highest marginal
rates provided for with respect to natural persons (or, if
higher, with respect to taxable corporations) under applicable
federal and California or Massachusetts (as the case may be)
state income tax laws (taking into account, in determining
federal taxable income, any allowable deduction for California
or Massachusetts (as the case may be) state income taxes), as
determined from time to time by the General Partner after
consulting with accountants to the Partnership and calculated
with respect to the character of items of income, gain, loss,
deduction and credit at the Partnership level;
(B) as if all allocations to such Partner of
Partnership capital losses for prior years (to the extent not
offset, to the maximum extent permitted under applicable law,
against allocations to such Partner of Partnership capital
gains for such prior years) had been carried forward by such
Partner and applied to reduce, to the maximum extent permitted
under applicable law, such Partner's tax liability with
respect to Partnership capital gains allocated to such Partner
in such year; and
(C) except as provided in the preceding
clause (B), without regard to the carryover of items of loss,
deduction and expense previously allocated by the Partnership
to such Partner.
(ii) Notwithstanding the foregoing: (A) the aggregate
amount of Partnership Tax Distributions that otherwise would be made
pursuant to this Paragraph 8(a) may be reduced or not made with respect
to any calendar year to the extent determined by the General Partner in
its sole discretion, provided that, subject to clause (B) of this
sentence, if the Partnership receives a cash distribution from the Fund
pursuant to Paragraph 9(a) of the Fund Agreement, the amount so
received shall be used by the Partnership to make Partnership Tax
Distributions on a pro rata basis based on the amount of additional
Partnership Tax Distributions with respect to such calendar year to
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17
which each Partner is entitled at the time such distribution is made
(taking into account any prior Partnership Tax Distributions with
respect to such calendar year and clause (B) of this sentence), and (B)
Partnership Tax Distributions that otherwise would be made to any
Partner with respect to any calendar year pursuant to this Paragraph
8(a) shall be reduced by the amount of any other cash distributions
made by the Partnership to such Partner during such calendar year,
provided, however, that for purposes of this clause (B) any Partnership
Tax Distribution made within 90 days after the beginning of any
calendar year with respect to a prior year shall not reduce the amount
of Partnership Tax Distributions to which a Partner is entitled for the
calendar year in which it was made.
(iii) The Partnership may make Partnership Tax
Distributions to the Partners during any calendar year to enable them
to satisfy their liability to make estimated tax payments with respect
to such calendar year or the preceding calendar year based on
calculations of the Partners' estimated tax liability made pursuant to
Paragraph 8(a)(i) as of such dates as the General Partner in its sole
discretion may determine.
(iv) Any amounts paid by the Fund to the Partnership
pursuant to Paragraph 9(a) of the Fund Agreement and treated by the
Fund as advances rather than distributions as provided therein shall
similarly be treated as advances if and when paid over by the
Partnership to the Partners. Each Partner who receives any such advance
shall return such advance (or the appropriate portion thereof) to the
Partnership promptly upon the General Partner's written demand
therefor, and the General Partner shall promptly remit to the Fund the
amounts so returned. Advances and returns thereof shall be accounted
for by the Partnership in a manner similar to that required under
Paragraph 9(a) of the Fund Agreement.
(b) The Partnership may, at the discretion of the General
Partner, make such additional distributions of Partnership assets (in cash or in
kind) to the Partners as it deems appropriate. Notwithstanding the foregoing, no
distribution shall be made to any Partner if, and to the extent that, such
distribution would not be permitted under Section 17-607(a) of the
- 15 -
18
Delaware Act. Each Partner, by becoming a Partner, consents to any distribution
hereafter made or omitted to be made to the Partners in accordance with this
Paragraph 8.
(c) Any asset distributed by the Partnership in kind shall be
deemed (as provided in Paragraph 6(d)) to have been sold by the Partnership as
of the date of distribution at its fair market value, and any Deemed Gain or
Loss with respect to such distribution shall be allocated at the time of such
distribution in the manner provided in Paragraph 7(c). To the extent feasible,
each class of securities to be distributed in kind shall be apportioned among
the Partners in proportion to each of their respective shares of the proposed
distribution, except to the extent a disproportionate distribution of such
securities is necessary in order to avoid distributing fractional shares. For
purposes of the preceding sentence, each lot of stock or other securities having
a separately identifiable tax basis or holding period shall be treated as a
separate class of securities. The valuation of assets distributed in kind shall
be made in the manner provided in Paragraph 9.
(d) Each distribution (other than Partnership Tax
Distributions) shall be made first to the Partners having positive Capital
Account balances in proportion to such Partners' respective Capital Accounts up
to the amounts of such Capital Accounts, and then to and among all Partners in
proportion to their respective Percentage Interests.
9. Valuations.
(a) Whenever valuation of Partnership assets or net assets is
required by this Agreement, the General Partner shall determine the fair market
value thereof in good faith.
(b) For the purpose of determining the fair market value of
any security owned by the Partnership which is freely tradeable (as defined in
Paragraph 9(c)), the "last reported" trade price or sale price of such security
on any trading day shall be deemed to be: (i) for securities traded primarily on
the New York Stock Exchange, the American Stock Exchange or Nasdaq, the last
reported trade price or sale price, as the case may be, as of 4:00 p.m., New
York time, on that day; and (ii) for securities listed or traded on other
exchanges, markets and systems, the market price as of the end of the "regular
hours" trading period that is generally accepted as
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19
such for such exchange, market or system. Notwithstanding the foregoing, if
after the date of this Agreement, the benchmark times generally accepted in the
securities industry for determining the market price of a stock as of a given
trading day shall change from those set forth above, the fair market value shall
be determined as of such other generally accepted benchmark times. The fair
market value of each other security of the Partnership shall be deemed to be the
fair market value of such security as last determined by the Fund pursuant to
the Fund Agreement, provided that (i) the same security was held by the Fund at
the time of such determination by the Fund, (ii) such determination was made by
the Fund within the three-month period prior to the date of determination of
fair market value under this Paragraph 9 and (iii) no events which would
materially alter such Fund determination have occurred since the date thereof.
If any condition set forth in the preceding sentence is not met, the
determination of the fair market value of such security shall instead be based
upon all relevant factors, including, without limitation, such of the following
factors as may be relevant: current financial position and current and
historical operating results of the issuer; sales prices of recent public or
private transactions in the same or similar securities, including transactions
on any securities exchange on which such securities are listed or in the
over-the-counter market; general level of interest rates; recent trading volume
of the security; restrictions on transfer, including the Partnership's right, if
any, to require registration of its securities by the issuer under the
securities laws; significant recent events affecting the issuer, including
pending mergers, acquisitions and sales of securities; the price paid by the
Partnership or the Fund to acquire the security; and all other factors affecting
value. The determination of the fair market value of any non-security asset of
the Partnership shall be based upon all factors which the General Partner in
good faith deems relevant. In making any determination of the fair market value
of the assets of the Partnership, no allowance of any kind shall be made for
good will or the name of the Partnership or of the General Partner, the
Partnership's office records, files and statistical data or any intangible
assets of the Partnership.
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20
(c) For purposes of this Agreement, a security shall be deemed
to be "freely tradeable" if (i) the Partnership's entire holding of such
security can be immediately sold by the Partnership to the general public
without the necessity of any federal, state or local government consent,
approval or filing (other than any notice filings of the type required pursuant
to Rule 144(h) under the Securities Act of 1933, as amended (the "Securities
Act")) or any consent, approval or release of any other person, and (ii) such
security is either listed on a national securities exchange or carried on Nasdaq
and market quotations are readily available therefor. Notwithstanding the
foregoing, in the case of a distribution of securities to the Partners, a
security shall be deemed to be "freely tradeable" if the entire portion of such
distribution made to the Limited Partners can be immediately sold by them under
the terms provided for in clause (i) of the preceding sentence and the condition
provided for in clause (ii) of the preceding sentence is satisfied, assuming for
purposes of this sentence that no Limited Partner is an affiliate of the issuer
of such security.
(d) The Partnership's name and good will shall, as among the
Partners, be deemed to have no value and shall belong to the Partnership or any
successor thereof, and no Partner shall have any right or claim individually to
the use thereof. Upon the termination of the Partnership, the goodwill
associated with the Partnership's name and the right to use the name shall be
assigned to the General Partner.
(e) Notwithstanding Paragraphs 9(a) and 9(b), in the event
securities are distributed in kind by the Partnership within 30 days following
receipt thereof from the Fund, the fair market value of such securities shall be
deemed to be the same value as that determined by the Fund pursuant to the Fund
Agreement, including Paragraph 9(d) thereof, at the time of distribution to the
Partnership.
10. Term of Partnership; Dissolution.
(a) The Partnership shall continue until December 31, 2020,
unless sooner dissolved as provided in Paragraph 10(b) or (c) or by operation of
law.
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21
(b) The Partnership shall be dissolved in the event of the
occurrence of an event of withdrawal (as specified in Section 17-402(a) of the
Delaware Act) with respect to the General Partner.
(c) The General Partner may dissolve the Partnership at any
time upon written notice of such dissolution to the Partners and, if liquidation
of the Fund has not been completed, to the partners of the Fund.
11. Retirement of a Class B or Class C Limited Partner.
(a) A Class B or Class C Limited Partner may retire from the
Partnership at any time upon written notice to the General Partner. However, if
a Class B Limited Partner retires (i) because of (A) a material involuntary
diminution in his duties as an officer or employee of RSA Security Inc., a
Delaware corporation ("RSA"), or any affiliate thereof, (B) a material
involuntary decrease in his "compensation package" as an officer or employee of
RSA or any affiliate thereof, or (C) a requirement by RSA or any affiliate
thereof to change, without his consent, the location of his principal place of
employment with RSA or such affiliate to somewhere other than (1) the San Diego,
California area, in the case of Barry Rosenbaum, (2) the greater Boston,
Massachusetts area, in the case of Charles R. Stuckey, Jr., (3) the Silicon
Valley, California area, in the case of David Clark or (4) the Geneva,
Switzerland area, in the case of Fergal Mullen (it being understood that each
Class B Limited Partner's duties may require occasional travel to
Massachusetts), (ii) after he has provided at least 30 days prior written notice
to the General Partner of the occurrence of an event specified in clause (A),
(B) or (C) of this sentence, and (iii) the General Partner has failed, within 30
days of receiving such notice, to cure the occurrence of such event, then such
retirement shall be deemed to have occurred for "Good Reason". The term
"compensation package", as used in the immediately preceding sentence, shall
mean such Class B Limited Partner's total compensation excluding (i) any amounts
payable to him under this Agreement, (ii) the value of any benefits as to which
he participates other than on a basis generally consistent with other covered
members of his applicable group, and (iii) any bonus or other incentive amounts
payable to him in accordance with his achievement of specified
- 19 -
22
objectives, unless, notwithstanding the foregoing, if he fully met all of such
objectives (as determined by RSA in its sole discretion) he would receive at
least the aggregate bonus and incentive payments he would have received in each
prior period.
(b) The General Partner may retire a Class B or Class C
Limited Partner from the Partnership at any time for any reason or no reason
upon written notice to such Class B or Class C Limited Partner.
(c) Except as otherwise set forth in this Paragraph 11(c), if
the General Partner has retired a Class B Limited Partner pursuant to Paragraph
11(b) because such Class B Limited Partner (i) has, after written notice,
continued to materially fail to devote such time as may be reasonably required
to attend to, or continued to be grossly negligent in the performance of, his
duties (A) as a director, officer, employee or member of a committee of the
General Partner, RSA or an affiliate thereof, or (B) with respect to the Fund,
(ii) has committed an act of fraud, embezzlement or misappropriation against the
Fund, the Partnership, the General Partner, RSA or any affiliate thereof, (iii)
has committed a felony involving moral turpitude, or (iv) has committed a
material breach of a material provision of this Agreement which is incapable of
being cured or, if capable of being cured, remains uncured after 30 days'
written notice of such breach from the General Partner, then such Class B
Limited Partner shall be deemed to have retired for "Cause". Notwithstanding the
foregoing, with respect to David Clark and Fergal Mullen only, if the General
Partner seeks to retire either such person pursuant to Paragraph 11(b) because
of a failure of such person to comply with the terms of Paragraph 11(c)(i) or a
violation of Paragraph 11(c)(iv), as the case may be, the General Partner shall
provide written notice to such person stating the failure of such person to
comply with Paragraph 11(c)(i) or the violation of Paragraph 11(c)(iv). Such
person shall then have 60 days from receipt thereof to cure such failure or
violation. Upon expiration of such 60 day period, if the General Partner makes a
good faith finding that such person has not cured such failure or violation to
the General Partner's reasonable satisfaction, then such person shall be deemed
to have retired as a Class B Limited Partner for "Cause" on the 30th day
following the expiration of such 60 day period.
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23
(d) In the event of the occurrence with respect to a Class B
or Class C Limited Partner of an event described in Section 17-402(a)(4), (5) or
(6) of the Delaware Act, such Class B or Class C Limited Partner shall thereupon
be deemed to have retired from the Partnership as of the date thereof.
(e) In the event of the retirement of a Class B or Class C
Limited Partner (or, if applicable, his personal representative, estate,
receiver or other successor in interest), he shall cease to be a Class B or
Class C Limited Partner, as the case may be, but shall remain as a retired
limited partner (a "Retired Limited Partner") and such former Class B or Class C
Limited Partner's interest in the Partnership shall be automatically converted
into a Retired Limited Partner's interest subject to the following conditions:
(i) Any Retired Limited Partner shall be bound by the
terms of this Agreement and all amendments hereto and by all actions
taken by the other Partners (including, without limitation, his
obligation to make capital contributions to the Partnership up to the
amount of his Subscription pursuant to Paragraph 5, except as otherwise
provided in this Paragraph 11(e), and his obligation to make certain
payments to the Partnership pursuant to Paragraph 12(h));
(ii) A Retired Limited Partner's Percentage Interest
as in effect immediately prior to his retirement shall be reduced to a
percentage thereof as is set forth in the applicable column below
opposite the date of his designation as a Retired Limited Partner:
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Percentage of Percentage Interest
retained by Retired Limited Partner
If the designation as a Retired pursuant to this Paragraph 11(e)
Limited Partner occurs
- ------------------------------------------------------------- -------------------------------------------
before the last day of the first full calendar quarter 0%
beginning after the date his employment commenced with RSA
or any of its affiliates (which date shall be deemed to be
May 1, 2000 for any person employed by RSA or any such
affiliate prior to May 1, 2000)
on the last day of the first full calendar quarter 6.25% per calendar
beginning quarter after the date his employment commenced
with RSA or any of its affiliates (which date shall be
deemed to be May 1, 2000 for any person employed by RSA or
any such affiliate prior to May 1, 2000) and of each of
the next succeeding 11 calendar quarters
on the last day of each calendar quarter thereafter for the an additional 1.25% per calendar
next 20 calendar quarters quarter
Notwithstanding anything to the contrary herein, if the General Partner
retires a Class B Limited Partner without Cause pursuant to Paragraph 11(b), or
if a Class B Limited Partner retires pursuant to Paragraph 11(a) for Good
Reason, the percentage of such Class B Limited Partner's Percentage Interest
which shall be retained by him as a Retired Limited Partner pursuant to the
table above in this Paragraph 11(e) shall be increased by 25 percentage points
(up to a maximum of 100%). For purposes of clarification, no such corresponding
adjustment shall be made in the case of Class C Limited Partner.
Furthermore, notwithstanding anything to the contrary herein, if at any
time following the occurrence of a Change in Control (as defined in Paragraph
19(b)) of RSA, a Class B Limited Partner (i) is retired by the General Partner
without Cause pursuant to Paragraph 11(b), or (ii) retires pursuant to Paragraph
11(a) for Good Reason, then the percentage of such Class B Limited Partner's
Percentage Interest retained by him as a Retired Limited Partner shall be 100%.
For purposes of clarification, no such corresponding adjustment shall be made in
the case of Class C Limited Partner.
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That portion of a Retired Limited Partner's Percentage Interest that is
not retained by him in his capacity as a Retired Limited Partner shall be
reallocated to the Percentage Interest of the Class A Limited Partner.
A Retired Limited Partner's right and obligation after the date of
retirement to make the balance of his capital contributions to the Partnership,
up to the amount of his Subscription pursuant to Paragraph 5(a), shall be
assumed by the Class A Limited Partner, except that such Retired Limited Partner
shall continue to have the right and be obligated to make capital contributions
to the Partnership if, and to the extent that, the product of (i) such Retired
Limited Partner's Percentage Interest retained by him pursuant to this Paragraph
11(e) and (ii) his Subscription as it existed immediately prior to his
retirement, exceeds his Contributions Account.
Schedule A to this Agreement shall be revised to reflect any
reallocations pursuant to this Paragraph 11(e). The General Partner shall adjust
appropriately the amount of capital required to be contributed by each Partner
on each occasion of an additional capital contribution to take account of any
reallocations pursuant to this Paragraph 11(e).
12. Liquidation of Partnership Interests.
(a) At dissolution, the Partnership shall be liquidated in an
orderly manner. The General Partner shall be the liquidator to wind up the
affairs of the Partnership pursuant to this Agreement, provided that if there
shall be no General Partner, a plurality in interest of the Limited Partners may
appoint one or more liquidators to act as the liquidator(s) in carrying out such
liquidation. Any such liquidator, other than the General Partner, shall be a
"liquidating trustee" within the meaning of Section 17-101(9) of the Delaware
Act.
(b) During the liquidation period, profits and losses shall
continue to be allocated to and among the Partners in the same proportions and
in the same manner as allocations pursuant to Paragraph 7.
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26
(c) The liquidator(s) shall pay or provide for the
Partnership's liabilities and obligations to creditors. The remaining assets
shall then be distributed among the Partners in cash or in kind in accordance
with the positive balances in their respective Capital Accounts.
(d) In performing their duties, the liquidator(s) are
authorized to sell, exchange or otherwise dispose of the assets of the
Partnership in such reasonable manner as the liquidator(s) shall determine to be
in the best interest of the Partners.
(e) The expenses incurred by the liquidator(s) in connection
with winding up the Partnership, all other losses or liabilities of the
Partnership incurred in accordance with the terms of this Agreement and
reasonable compensation for the services of the liquidator(s) shall be borne by
the Partnership; provided, however, if the liquidator is the General Partner,
the General Partner shall receive no compensation for his services. The
liquidator(s) shall make final liquidating distributions from the Partnership
before the later of (i) the end of the Partnership's fiscal year in which the
date of the liquidation of the Partnership occurs, or (ii) 90 days after the
date of the liquidation of the Partnership. For this purpose, (x) the date of
the liquidation of the Partnership shall mean the date on which the Partnership
has ceased to be a going concern; and (y) the Partnership shall not be deemed to
have ceased to be a going concern until the Fund has sold, distributed or
otherwise disposed of all of its investments in Fund Portfolio Companies and the
Partnership has sold, distributed or otherwise disposed of substantially all of
the securities of Fund Portfolio Companies distributed to it by the Fund.
(f) No liquidator or any of its affiliates shall incur
liability to the Partnership or to any Partner for any loss suffered by the
Partnership or any Partner which arises out of any action or inaction on the
part of such liquidator or any of its affiliates, provided that in any such case
(i) such liquidator acted in good faith in the reasonable belief that its cause
of conduct was in, or not opposed to the best interests of, the Partnership and
(ii) such course of conduct did not constitute fraud, gross negligence or
willful misconduct on the part of such liquidator or any of its affiliates.
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27
(g) Neither the General Partner nor the liquidator(s) shall be
personally liable for the return of capital contributions of any Partners.
(h) If, after the Partnership has made its final liquidating
distribution, any Partner's Capital Account is negative, then such Partner shall
pay to the Partnership in cash the amount by which such Partner's Capital
Account is negative; provided, however, that such payment shall be made only to
the extent required to meet payment and distribution obligations pursuant to the
last sentence of this Paragraph 12(h). The Partners shall use their best efforts
to make any such payments promptly and in any event in conformity with the
timing requirements of Treasury Regulations Section 1.704-1(b)(2)(ii)(g).
Amounts paid by the Partners pursuant to this Paragraph 12(h) shall be paid to
creditors of the Partnership (including any Partners who are creditors of the
Partnership), paid to the Fund pursuant to the Fund Agreement or distributed to
Partners with positive balances in their Capital Accounts in proportion to such
balances.
13. Limitation on Assignability of Partners' Interests. The prior
written consent of the General Partner, which may be granted or withheld in its
sole and absolute discretion, shall be required for the assignment, pledge,
mortgage, hypothecation, sale or other disposition or encumbrance (collectively,
"Transfer") of all or any part of a Partner's interest in the Partnership. The
General Partner shall not cause or permit interests in the Partnership to become
"traded on an established securities market", and shall withhold its consent to
any Transfer that, to the General Partner's knowledge after reasonable inquiry,
would otherwise be accomplished by a trade on a "secondary market (or the
substantial equivalent thereof)", in each case within the meaning of Section
7704 of the Code and any regulations promulgated thereunder that are in effect
at the time of the proposed Transfer. Upon the admission of a transferee of a
Partnership interest as a substituted Partner (for which the prior written
consent of the General Partner shall be required), or upon the Transfer of all
or any part of a Partner's interest in the Partnership to another Partner, the
Contributions Account, Capital Account and Percentage Interest of the transferor
shall become or shall be added to the Contributions Account, Capital Account and
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Percentage Interest of the transferee, to the extent of the interest
transferred. In the event of a Transfer of a Partner's entire interest (as of
the time of such Transfer) in the Partnership which results in such Partner
ceasing to be a Partner of the Partnership, or in the event of a Transfer of
less than all of a Partner's entire interest (as of the time of such transfer)
in the Partnership, each transferee shall be deemed, for purposes of the
definition of "Restoration Amount" in Paragraph 7(a)(4), to have received all
distributions previously received from the Partnership by the transferor with
respect to the interest transferred to such transferee. Except in accordance
with the provisions of this Paragraph 13, each Partner agrees with all other
Partners that he will not make any Transfer of all or any part of his interest
in the Partnership. Any attempted Transfer of a Partner's interest without
compliance with this Agreement shall be void. Every Transfer shall be subject to
all of the terms, conditions, restrictions and obligations of this Agreement.
14. Withdrawal of Partnership Interests. No Partner shall have the
right to withdraw his capital or profits from the Partnership.
15. Indemnification. Each Partner, liquidator for the Partnership and
officer, director, employee, stockholder, committee member, agent and
controlling partner of the General Partner (herein referred to collectively as
"Indemnified Parties" and singly as an "Indemnified Party") shall be indemnified
by the Partnership (to the extent such party has not been indemnified by any
other person or entity) against any loss, judgment, liability, expense and/or
amount paid in settlement of any claim (provided that, in the case of a
settlement of any claim, the General Partner has approved the terms thereof)
incurred by or imposed upon him in connection with any action, suit or
proceeding (including any proceeding before any administrative or legislative
body or agency), to which he may be made a party or otherwise involved or with
which he shall be threatened, by reason of his being a Partner, a liquidator for
the Partnership, or an officer, director, employee, stockholder, committee
member, agent or controlling person of the General Partner or any organization
in which the Partnership or the Fund owns or owned an interest or of which the
Partnership or the Fund is or was a creditor, which organization he serves or
has served as an officer, director, employee or agent at the request of the
Partnership or the Fund
- 26 -
29
(whether or not he continues to be a Partner, liquidator, or officer, director,
employee, stockholder, committee member, agent or controlling person of the
General Partner or of such organization at the time such action, suit or
proceeding is brought or threatened), except to the extent any such loss,
judgment, liability, expense and/or amount paid in settlement of any claim was
the result of fraud, willful misconduct or gross negligence on the part of the
Indemnified Party, and provided further that in the case of an officer,
director, employee, stockholder, committee member, agent or controlling person
of the General Partner or such other organization, the action, suit or
proceeding related directly or indirectly to the affairs of the Partnership. Any
indemnification shall be provided solely from the net assets of the Partnership
and no Partner shall be liable personally therefor. The foregoing right of
indemnification shall be in addition to any rights to which the Indemnified
Party may otherwise be entitled and shall inure to the benefit of the executors,
administrators, personal representatives, successors or assigns of each such
person. The Partnership may pay the expenses incurred by the Indemnified Party
in investigating or defending any such action, suit or proceeding in advance of
the final disposition thereof, upon receipt of an undertaking by such
Indemnified Party to repay such payment if he shall be determined not to be
entitled to indemnification therefor as provided herein.
16. Fiscal Year; Records and Reports; Accounting Method;
Organizational Expenses.
(a) Except as may otherwise be required by the Code, the
fiscal year and the taxable year of the Partnership shall each be the calendar
year.
(b) At all times the General Partner shall cause to be kept
proper and complete books of account in accordance with generally accepted
accounting principles consistently applied, in which shall be entered fully and
accurately the transactions of the Partnership. Such books of account (which
shall be kept on the accrual method of accounting), together with an executed
copy of this Agreement (as the same may be amended from time to time) and the
Certificate of Limited Partnership, shall at all times be maintained at the
principal office of the Partnership and shall be open to inspection by the
Partners or their duly authorized representatives. At any time while the
Partnership continues and until its affairs have been
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30
wound up (but only during reasonable business hours), each Partner (or the
designee thereof) may fully examine and audit the Partnership's books, records,
accounts and assets, including bank balances, and may make, or cause to be made,
any examination or audit at such Partner's expense.
(c) The General Partner shall use its best efforts to transmit
to each Partner as soon as reasonably practicable after the close of each fiscal
year, the financial statements of the Partnership for such fiscal year. Such
financial statements shall include statements of assets and liabilities, net
assets represented by Partners' capital, operations, changes in net assets, cash
flows and changes in each Partner's capital. The General Partner shall also use
its best efforts to transmit to each Partner as soon as reasonably practicable
after the close of each fiscal year, a report indicating such Partner's share of
all items of income or gain, expense, loss or other deduction and tax credit of
the Partnership for such year for federal income tax purposes and such
additional information as he may reasonably request to enable him to complete
his tax returns or to fulfill any other reporting requirements.
(d) The Partnership shall use the accrual method of accounting
for federal income tax purposes.
(e) The organizational expenses of the Partnership shall be
amortized over a 60-month period for tax purposes.
17. Amendment. Except as otherwise provided in this Agreement, the
terms and provisions of this Agreement may be waived, modified or amended only
with the written consent of the General Partner. No amendment shall, however,
(a) increase the Subscription of any Partner under this Agreement without the
consent of such Partner; provided, however, that if the Partnership's commitment
to contribute capital to the Fund is increased pursuant to Paragraph 6(c) of the
Fund Agreement, the General Partner may increase the Subscriptions of all
Partners on a pro rata basis by the aggregate amount by which the Partnership's
commitment to contribute capital to the Fund was so increased, (b) dilute the
relative interest of any Partner in the allocation of Partnership Net Realized
Gain or Loss, Fund Net Realized Gain or Loss, Deemed
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31
Gain or Loss, Fund Deemed Gain or Loss or distributions without the written
consent of such Partner, except such dilution as may result from (i) additional
Subscriptions by any Partner or Partners, (ii) the admission of additional Class
B or Class C Limited Partners, or (iii) the operation of the other provisions of
this Agreement, (c) amend this Paragraph 17 without the written consent of each
Partner, or (d) increase the obligations under Paragraph 4(c) with respect to
any Limited Partner named therein or subject any other Limited Partner to the
provisions of Paragraph 4(c), without the prior written consent of such Limited
Partner.
18. General Provisions.
(a) Notices. Except where otherwise specifically provided in
this Agreement, all notices, requests, consents, approvals and statements shall
be in writing and shall be deemed to have been properly given by personal
delivery or if mailed from within the United States by first class U.S. Mail,
postage prepaid, or if sent by telecopy or e-mail, addressed in each case, if to
the Partnership, at 36 Crosby Drive, Bedford, MA 01730; Attn: Administrator;
telecopy: (781) 301-5420; e-mail: chargreaves@rsasecurity.com, with a copy to
RSA Security Inc., 36 Crosby Drive, Bedford, MA 01730, Attn: Legal Department,
telecopy: (781) 301-5590, e-mail: mseif@rsasecurity.com, and if to any Partner,
to the address set forth in Schedule A or in the instrument pursuant to which he
became a Partner or, in each case, to such other address or addresses as the
addressee may have specified by written notice as aforesaid to the other
parties.
(b) Power of Attorney.
(i) Each of the Partners hereby constitutes and
appoints the General Partner as its attorney to make, execute, sign and
acknowledge and, if necessary, file (A) the Certificate of Limited
Partnership, including any required amendment thereto; (B) any
amendment to this Agreement that does not require, under the terms of
this Agreement, the approval of all the Partners, provided that
Partners holding the interest in the Partnership specified in this
Agreement as being required for such amendment have signed or otherwise
approved such amendment and all other required signatures and approvals
have been obtained; (C) any other instrument, certificate or document
required
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from time to time to admit a Partner, to effect his substitution as a
Partner, to effect the substitution of the Partner's assignee as a
Partner, or to reflect any action of the Partners provided for in this
Agreement; and (D) any other instrument, certificate or document as may
be required or appropriate under the laws, regulations or procedures of
the United States, any state or any governmental entity in any
jurisdiction in which the Partnership is doing or intends to do
business, provided all such instruments, certificates and other
documents referred to in clauses (A), (B), (C) and (D) above are in
accordance with the terms of this Agreement as then in effect. Copies
of all such instruments, certificates and other documents shall be sent
to all Partners.
(ii) Each of the Partners is aware that the terms of
this Agreement permit certain amendments to the Certificate of Limited
Partnership and this Agreement to be effected and certain other actions
to be taken by or with respect to the Partnership, in each case with
the approval or by the vote of less than all the Partners. If, as and
when (A) an amendment of the Certificate of Limited Partnership or this
Agreement is proposed or an action is proposed to be taken by or with
respect to the Partnership which does not require, under the terms of
this Agreement, the approval of all of the Partners, (B) Partners
holding the interest in the Partnership specified in this Agreement as
being required for such amendment or action have approved such
amendment or action in the manner contemplated by this Agreement, and
(C) a Partner has failed or refused to approve such amendment or action
(hereinafter referred to as a non-consenting Partner), each
non-consenting Partner agrees that the special attorney specified
above, with full power of substitution, is hereby authorized and
empowered to execute, acknowledge, make, swear to, verify, deliver,
record, file and/or publish, for and on behalf of such non-consenting
Partner, and in his name, place and stead, any and all instruments and
documents which may be necessary or appropriate to permit such
amendment to be lawfully made or action lawfully taken. Each Partner is
fully aware that he and each other Partner have executed this special
power of attorney, and that each Partner will rely on
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33
the effectiveness of such powers with a view to the orderly
administration of the Partnership's affairs.
(iii) The foregoing grant of authority (A) is a
special power of attorney coupled with an interest in favor of the
General Partner and as such shall be irrevocable and shall survive the
death or incompetence (or, in the case of a Partner that is a
corporation, association, partnership, limited liability company or
trust, shall survive the merger, dissolution or other termination of
the existence) of the Partner and (B) shall survive the assignment by
the Partner of the whole or any portion of his interest, except that
where the assignee of the whole thereof has furnished a power of
attorney, this power of attorney shall survive such assignment for the
sole purpose of enabling the General Partner to execute, acknowledge
and file any instrument necessary to effect such substitution and shall
thereafter terminate.
(c) Additional Documents. Each Partner hereby agrees to
execute all certificates, counterparts, amendments, instruments or documents
that may be required by laws of the various states or other jurisdictions in
which the Partnership does business, to conform with the laws of such states or
other jurisdictions governing limited partnerships.
(d) Binding on Successors. This agreement shall be binding
upon and it shall inure to the benefit of the respective heirs, successors,
permitted assigns and legal representatives of the parties hereto.
(e) Counterparts. This Agreement or any amendment hereto may
be signed in any number of counterparts, each of which shall be an original, but
all of which taken together shall constitute one Agreement (or amendment, as the
case may be).
(f) Voting. Whenever action is required or permitted by this
Agreement to be taken by a specified percentage in interest of a designated
class or group of Limited Partners, such action shall be deemed to be valid if
taken upon written vote or written consent by those Limited Partners whose
Percentage Interests represent at that time the specified percentage of the
Percentage Interests of all members of such designated class or group (excluding
for purposes of
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34
such calculation any defaulting Class B or Class C Limited Partners who have
lost their right to vote or take other action pursuant to the second paragraph
of Paragraph 5(b)). Any vote or other action required or permitted to be taken
by this Agreement may be taken by written consent signed by not less than the
requisite percentage in interest determined as aforesaid of parties required or
permitted to take such vote or other action.
(g) Applicable Law. Notwithstanding the place where this
Agreement may be executed by any of the parties hereto, the parties expressly
agree that all the terms and provisions hereof shall be construed under the laws
of the State of Delaware and, without limitation thereof, that the Delaware Act
as now adopted or as may be hereafter amended shall govern the partnership
aspects of this Agreement. References in this Agreement to sections of the Code
or the Delaware Act shall be deemed to refer to such sections as they may be
amended after the date of this Agreement.
(h) Securities Act Matters. Each Partner understands that in
addition to the restrictions on transfer contained in this Agreement, he must
bear the economic risks of his investment for an indefinite period because the
Partnership interests have not been registered under the Securities Act and,
therefore, may not be sold or otherwise transferred unless they are registered
under the Securities Act or an exemption from such registration is available and
such restrictions on transfer are complied with. Each Partner agrees with all
other Partners that he will not sell or otherwise transfer his interest in the
Partnership unless such interest has been so registered or in the opinion of
counsel for the Partnership, or of other counsel reasonably satisfactory to the
Partnership, such an exemption is available, and such restrictions on transfer
are complied with.
(i) Tax Matters Partner; Tax Elections. The "tax matters
partner" (as defined in Section 6231 of the Code) of the Partnership shall be
the General Partner (the "Tax Matters Partner"). The General Partner shall
receive no compensation from the Partnership for its services in that capacity,
but all expenses incurred by the Tax Matters Partner (including professional
fees for such accountants, attorneys and agents as the General Partner in its
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35
discretion determines are necessary to or useful in the performance of its
duties in that capacity) shall be borne by the Partnership. The General Partner
shall have the power to make all elections for the Partnership that are
permitted under tax or other applicable laws, including an election under
Section 754 of the Code.
(j) Contract Construction. Where the context of this Agreement
so requires, use of masculine gender pronouns shall be deemed to mean or include
the feminine or neuter gender and use of singular pronouns shall be deemed to
mean or include the plural, and vice versa. All references in this Agreement to
"days" mean calendar days.
19. Definitions.
(a) The respective Paragraphs or other locations in which
certain capitalized terms used in this Agreement are defined are set forth below
opposite each term:
Term Paragraph Reference
---- -------------------
Agreement Preamble
Capital Account 6(b)
Cause 11(c)
Certificate of Limited Partnership 3(c)
Change in Control 19(b)
Class A Limited Partner Preamble
Class B Limited Partner Preamble
Class C Limited Partner Preamble
Code 3(e)
Contributions Account 6(a)
Cost 7(a)(4)
Deemed Gain or Loss 7(a)(3)
Delaware Act Preamble
Fund 2
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36
Fund Agreement 2
Fund Deemed Gain or Loss 7(d)(1)
Fund Net Realized Gain or Loss 7(a)(2)
Fund Portfolio Company 7(a)(4)
General Partner Preamble
Good Reason 11(a)
Indemnified Party 15
Limited Partner Preamble
Named Firm 4(c)
Partnership Net Realized Gain or Loss 7(a)(1)
Partner Preamble
Partnership Preamble
Partnership Tax Distribution 8(a)(i)
Percentage Interest 3(a)
Regulatory Allocations 7(e)(3)
Restoration Amount 7(a)(5)
Retired Limited Partner 11(e)
RSA 11(a)
Securities Act 9(c)
Subscription 5(a)
Tax Matters Partner 18(i)
Transfer 13
(b) In addition to the definitions set forth throughout this
Agreement, the term "Change in Control" shall mean the first to occur, after the
date hereof, of any of the following:
(i) any consolidation or merger of RSA where the
stockholders of RSA, immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger, beneficially
own (as such term is defined in Rule 13d-3 under
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37
the Securities Exchange Act of 1934), directly or indirectly, shares of
capital stock of RSA representing in the aggregate a majority of the
combined voting power of the securities of the corporation issuing cash
or securities in the consolidation or merger (or of its ultimate parent
corporation, if any);
(ii) (A) any sale, lease, exchange or other transfer
(in one transaction or a series of transactions contemplated or
arranged by any party as a single plan) of all or substantially all of
the assets of RSA to a third party unaffiliated with RSA or (B) the
approval by stockholders of RSA of any plan or proposal for the
liquidation or dissolution of RSA; or
(iii) any stockholder of RSA shall beneficially own,
directly or indirectly, shares of capital stock of RSA representing in
the aggregate a majority of the combined voting power of the securities
of RSA.
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38
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
GENERAL PARTNER
RSA VENTURES, INC.
By: /s/Charles R. Stuckey, Jr.
------------------------------
Name: Charles R. Stuckey, Jr.
Title: President
CLASS A LIMITED PARTNER
RSA SECURITY INC.
By: /s/Arthur W. Coviello, Jr.
------------------------------
Name: Arthur W. Coviello, Jr.
Title: President and CEO
CLASS B LIMITED PARTNERS
/s/Barry Rosenbaum
----------------------------------
Barry Rosenbaum
/s/Charles R. Stuckey, Jr.
----------------------------------
Charles R. Stuckey, Jr.
/s/Fergal Mullen
----------------------------------
Fergal Mullen
/s/David Clark
----------------------------------
David Clark
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39
CLASS C LIMITED PARTNERS
/s/James Horn
----------------------------------
James Horn
/s/Bradley H. Taylor
----------------------------------
Bradley H. Taylor
/s/James Sims
----------------------------------
James Sims
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40
SCHEDULE A
PERCENTAGE
PARTNERS SUBSCRIPTION INTEREST
- -------- ------------ --------
GENERAL PARTNER
$10,050 1.00%
RSA Ventures, Inc.
36 Crosby Drive
Bedford, MA 01730
Attn: Administrator
Telecopy: (781) 301-5420
E-mail: chargreaves@rsasecurity.com
with a copy to:
RSA Security Inc.
36 Crosby Drive
Bedford, MA 01730
Attn: Legal Department
Telecopy: (781) 301-5590
E-mail: mseif@rsasecurity.com
CLASS A LIMITED PARTNER
$490,202 38.75%*
RSA Security Inc.
36 Crosby Drive
Bedford, MA 01730
Attn: Treasurer
Telecopy: (781) 301-5590
E-mail: jsprague@rsasecurity.com
with a copy to:
RSA Security Inc.
36 Crosby Drive
Bedford, MA 01730
Attn: Legal Department
Telecopy: (781) 301-5590
E-mail: mseif@rsasecurity.com
41
CLASS B LIMITED PARTNERS
Barry Rosenbaum $201,005 20.00%
490 W. Oceanview Avenue
Del Mar, CA 92014
Telecopy: (858) 720-8475
E-mail: brosenbaum@rsasecurity.com
Charles R. Stuckey, Jr. $62,814 6.25%
RSA Security
36 Crosby Drive
Bedford, MA 01730
Telecopy: (781) 301-5420
E-mail: cstuckey@rsasecurity.com
Fergal Mullen $125,628 12.50%
RSA Ventures
Rue du Rhone 14
CH-1204 Geneva
Telecopy: 41-22-819-199
E-mail: fmullen@rsasecurity.com
David Clark $50,000 15.00%
315 Vicente Street
San Francisco, CA 94127
Telecopy: (415) 664-3128
E-mail: dfclark@yahoo.com
CLASS C LIMITED PARTNERS
James Horn $15,075 1.50%
336 Edgewood Road
Redwood City, CA 94062
Telecopy: (650) 261-9119
E-mail: james@thehorns.com
Bradley H. Taylor $12,563 1.25%
21 Rochelle
Newport Coast, CA 92657
Telecopy: (949) 852-6985
E-mail: btaylor@rsasecurity.com
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42
James K. Sims $37,688 3.75%
GEN3 Partners
Ten Post Office Square, 9th Floor
Boston, MA 02109
Telecopy: (617) 728-7599
TOTAL: $1,005,025 100%
========== ====
* Includes 4.75% Percentage Interest which may be reallocated to additional
partners of the Partnership pursuant to Paragraph 5(e) of the Agreement
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