DENALI INVESTORS MASTER FUND, L.P. ARTICLES OF LIMITED PARTNERSHIP BVI_BTLG-241267-2
TABLE OF CONTENTS Page ARTICLE 1 ORGANISATION... 1 1.01. Formation... 1 1.02. Partnership Name... 1 1.03. Partnership Office... 1 1.04. Term of the Partnership... 2 1.05. Objects and Purposes... 2 1.06. Partners...4 1.07. Liability of Partners... 4 1.08. Dissolution, Bankruptcy or Incapacity of Limited Partner... 4 ARTICLE 2 DEFINITIONS... 4 2.01. Certain Definitions... 4 ARTICLE 3 GENERAL PARTNER... 7 3.01. Management... 7 3.02. Authority of General Partner... 7 3.03. Payment of Costs and Expenses... 9 3.04. Reliance by Third Parties... 9 3.05. Other Activities... 9 3.06. Exculpation... 10 3.07. Indemnification... 10 ARTICLE 4 CAPITAL ACCOUNTS... 11 4.01. Capital Contributions... 11 4.02. Initial Capital Contributions... 12 4.03. Additional Capital Contributions... 12 4.04. Capital Accounts... 12 4.05. Opening Capital Balance... 13 4.06. Closing Capital Balance... 14 4.07. Valuation of Assets... 15 4.08. Determination by General Partner of Certain Matters... 15 4.09. Distributions Generally... 16 4.10. New Issues Account... 16 4.11. Prior Fiscal Period Items... 16 ARTICLE 5 WITHDRAWALS... 18 5.01. Withdrawal by Limited Partners... 18 5.02. General Partner Capital Account... 19 i alp01 160725-00005 070814
TABLE OF CONTENTS (continued) Page 5.03. Payment to Withdrawing Partner... 19 5.04. Mandatory Withdrawal of Partners... 19 5.05. Limitations on Withdrawals... 19 ARTICLE 6 ASSIGNMENT OF LIMITED PARTNER S INTEREST... 20 6.01. Assignment... 20 6.02. Void Assignment... 20 6.03. Substituted Limited Partner... 21 6.04. Effect of Assignment... 21 6.05. Effect of Death, Etc... 21 ARTICLE 7 BOOKS AND RECORDS... 22 7.01. Fiscal Year... 22 7.02. Books and Records... 22 7.03. Financial Reports and Tax Returns... 22 7.04. Bank Accounts and Custodian... 22 7.06. Tax Matters Partner... 22 7.07. Tax Elections... 23 ARTICLE 8 TERMINATION... 23 8.01. Termination... 23 8.02. Withdrawal of General Partner... 24 8.03. Removal of General Partner... 24 8.04. Interest of Bankrupt General Partner... 24 8.05. Liability of a Former General Partner... 24 8.06. Procedure... 24 8.07. Return of Contribution Solely Out of Partnership Assets... 24 ARTICLE 9 POWER OF ATTORNEY... 25 9.01. Power of Attorney... 25 ARTICLE 10 MISCELLANEOUS... 25 10.01. Amendments to Articles of Limited Partnership... 25 10.02. Notices... 26 10.03. Entire Agreement... 26 10.04. Severability... 26 10.05. Captions and Gender... 26 10.06. Governing Law... 27 10.07. Successors and Assigns... 27 10.08. Additional Instruments... 27 10.09. Waiver of Right to Partition... 27 ii
TABLE OF CONTENTS (continued) Page 10.10. No Third Party Rights... 27 10.11. Confidentiality... 27 10.12. Execution in Counterparts... 27 iii
Denali Investors Master Fund, L.P. ARTICLES OF LIMITED PARTNERSHIP Pursuant to the British Virgin Islands Partnership Act, 1996 THESE ARTICLES OF LIMITED PARTNERSHIP (the Articles ) are made on 20 August 2007 by and between Denali Investors GP, LLC, a Delaware limited liability company, as general partner (individually, a General Partner, or collectively with all other persons who may become additional general partners, the General Partner ) and each and all of those persons whose names are subscribed hereto as limited partners (individually, a Limited Partner or collectively, the Limited Partners ). WHEREAS, the parties desire to form a limited partnership (the Partnership ) in accordance with the provisions of the Partnership Act 1996 of the British Virgin Islands (the Partnership Act ) for the purposes of acting as a professional fund in accordance with the provisions of the Mutual Funds Act, 1996 of the British Virgin Islands and upon the terms set out in these Articles; NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto agree as follows: 1.01. Formation ARTICLE 1 ORGANISATION The parties hereto hereby create and form Denali Investors Master Fund, L.P. pursuant to the Partnership Act and these Articles. The parties hereby agree to execute or cause to be executed all such documents, and to do or cause to be done all such filings and other acts, appropriate to comply with the applicable laws of any jurisdiction in which the Partnership conducts business. 1.02. Partnership Name The business of the Partnership shall be conducted under the name Denali Investors Master Fund, L.P. or such other name or names as the General Partner shall determine from time to time and shall give due notice of such change to the Partners. Upon a change of name the General Partner shall cause a supplemental Memorandum of Limited Partnership evidencing the name change to be filed with the Registrar of Corporate Affairs in the British Virgin Islands. 1.03. Partnership Office
The principal business address of the Partnership shall be Nemours Chambers, PO Box 3170, Road Town, Tortola, British Virgin Islands, or at such location as the General Partner may hereafter designate by notice to the Partners. The registered office of the Partnership in the British Virgin Islands shall be at the offices of Ogier Fiduciary Services (BVI) Limited, Nemours Chambers, PO Box 3170, Road Town, Tortola, British Virgin Islands. The Registered Agent of the Partnership shall be Ogier Fiduciary Services (BVI) Limited, Nemours Chambers, PO Box 3170, Road Town, Tortola, British Virgin Islands. 1.04. Term of the Partnership The term of the Partnership shall be perpetual, unless sooner terminated in accordance with the provisions of these Articles. 1.05. Objects and Purposes The purpose of the Partnership shall be to seek capital appreciation over the long term. The Partnership shall seek to achieve its investment objectives by investing and trading, on margin or otherwise, in capital stock of U.S. or foreign corporations, executory contracts, liquidating trusts, preorganisation certificates and subscriptions, warrants, bonds, notes, debentures (whether subordinated, convertible or otherwise), rights, options, forward and equity derivatives, money market funds, commercial paper, bank debt, credit default swaps, recovery swaps, certificates of deposit, bankers' acceptances, trust receipts, obligations of the United States, or any State thereof, and instrumentalities of any of them, and any other obligations and instruments or evidences of indebtedness commonly referred to as securities of whatever kind or nature of any person, corporation, government or entity whatsoever, whether readily marketable or not, in rights and options relating thereto including forward and futures contracts (and options thereon) relating to stock indices or other indices, financial instruments, trade claims and commodities and commodity contracts, put and call options written by the Partnership or by others and derivative instruments (all such items being called herein a "Security" or "Securities"), to sell Securities short and cover such sales, and to lend funds or properties of the Partnership, either with or without security. In furtherance of the aforesaid objects and purposes, the Partnership shall have authority to do all things necessary or convenient for the accomplishment thereof, alone or with others, as principal or agent, for one or more series, including, without limiting the foregoing, the following: (c) to purchase (for cash or on credit), sell (including short sales), invest, trade, hold, receive, mortgage, pledge, transfer, exchange, or otherwise acquire or dispose of or realise upon Securities, real estate and other property and investments of any and all kinds, and to grant options with respect to and exercise all rights, powers, privileges and other incidents of ownership or possession with respect to all assets or property held or owned by the Partnership; to hold all or any part of the assets or funds of the Partnership in cash or cash equivalents; to borrow or obtain credit from time to time, including for the purpose of financing transactions in Securities or other investments, to secure the payment of any such indebtedness or credit by lien, pledge, conveyance or assignment in trust, of the whole or
any part of the assets of the Partnership, whether at the time owned or thereafter acquired, to enter into repurchase agreements and to buy, sell, pledge or otherwise dispose of any evidence of such indebtedness or obligation; (d) (e) (f) (g) (h) (i) (j) (k) (l) to lend any of its assets or funds, including any Securities, either with or without security; to open, maintain and close accounts, including so-called new issue, margin and discretionary accounts, with brokers and/or dealers, and to pay commissions, fees and other charges applicable to transactions in all such accounts including to utilise brokerage accounts to obtain other services and benefits for the Partnership or the General Partner; to open, maintain and close bank accounts and draw checks and other orders for the payment of money; to engage accountants, custodians, attorneys, investment advisers, administrators, and any and all other agents and assistants, both professional and nonprofessional, and to compensate them for such services; to acquire a long position or a short position or both with respect to any Securities and to make purchases or sales increasing, decreasing or liquidating any such position or changing from a long position to a short position, or from a short position to a long position, without any limitation as to the frequency of the fluctuation in such positions or as to the frequency of the changes in the nature of such positions; to file statements and forms under the proxy rules, the United States Williams Act, the United States Hart-Scott-Rodino Act, the United States Securities Exchange Act of 1934, the United States Commodity Exchange Act and other applicable regulatory laws and make any appropriate elections or seek exemptions therefrom; to file all forms and documents, or take such other action as may be necessary or appropriate, with state, federal or foreign governments, agencies or self-regulatory organisations, to register for sale interests in the Partnership, or to qualify for exemptions therefrom, or to register as a broker or dealer with such governments or organisations; to sue, prosecute, settle or compromise all claims against third parties, to compromise, settle or accept judgment in respect of claims against the Partnership and to execute all documents and make all representations, admissions and waivers in connection therewith; to have and maintain one or more offices within or without the British Virgin Islands, and in connection therewith to rent, lease or purchase office space, facilities and equipment, to engage and pay personnel and do such other acts and things and incur such other expenses on its behalf as may be necessary or advisable in connection with the maintenance of such office or offices and the conduct of the business of the Partnership, provided always that the Partnership shall not undertake business with the public in the British Virgin Islands other than so far as may be necessary for the carrying on of the business of the Partnership exterior to the British Virgin Islands;
(m) (n) (o) (p) (q) (r) to combine purchase or sale orders on behalf of the Partnership with orders for other accounts to whom the General Partner or any of its affiliates provides investment services and allocate the securities or other assets so purchased or sold, on an average price basis, among such accounts; to organise one or more corporations or other entities formed to hold record title, as nominee for the Partnership (whether alone or together with the other accounts managed by the General Partner or its affiliates), to Securities or other assets of the Partnership; to invest in other pooled investment vehicles or separately managed accounts, which investments shall be subject in each case to the terms and conditions of the respective governing document for such vehicle or account; to do any and all acts on behalf of the Partnership, and exercise all rights of the Partnership, with respect to its interest in any person, including, without limitation, the voting of Securities, participation in arrangements with creditors, the institution and settlement or compromise of suits and administrative proceedings and other like or similar matters; to enter into, make and perform all other contracts, indemnifications, guarantees, agreements and undertakings of any kind as the General Partner may deem necessary, appropriate, advisable or incident to carrying out the foregoing objects and purposes of the Partnership; and to undertake all other business that is not prohibited under the Partnership Act or any law in force in the British Virgin Islands. Notwithstanding the foregoing, the Partnership shall not carry on the activities set forth in subsections (1) and (2) of section 50 of the Partnership Act. 1.06. Partners The names of all the Partners, their addresses, and the amounts of their respective contributions to the Partnership (herein called Capital Contributions ) shall be maintained in the register of Partnership Interests located at the Partnership s registered office in the British Virgin Islands. 1.07. Liability of Partners A Limited Partner, as such, will not be personally liable for any debt, liability, contract or other obligation of the Partnership. Unless otherwise provided in these Articles, he will not be required to lend any funds to the Partnership or, after his capital contribution is paid, to make any further Capital Contribution to the Partnership. In accordance with the Partnership Act, a Limited Partner may under certain circumstances be required to return to the Partnership, for the benefit of Partnership creditors, amounts previously distributed to him as a return of capital. In addition, the General Partners may require a Limited Partner to return to the Partnership amounts previously distributed to him to the extent of his share of any liabilities arising out of events occurring in any Valuation Period in
which he was a Partner (determined in accordance with his percentage ownership of Partnership Interests for such Valuation Period). (c) The General Partner shall have no personal liability for the repayment of the Capital Contributions of any Limited Partner. No Limited Partner may take part in the management or control of the business of the Partnership, transact any business for the Partnership, or have any authority to sign for or bind the Partnership. 1.08. Dissolution, Bankruptcy or Incapacity of Limited Partner If a Limited Partner is dissolved (solvent or insolvent), is adjudged incompetent or is declared bankrupt, its duly appointed and qualified legal representative shall succeed to its Partnership Interest upon furnishing to the General Partner satisfactory evidence of the representative s appointment and authority, subject to the General Partner s authority to require the representative to withdraw from the Partnership. 2.01. Certain Definitions ARTICLE 2 DEFINITIONS For purposes of these Articles, unless the context otherwise requires, the following terms shall have the following respective meanings: Additional Capital Contribution shall have the meaning set forth in Section 4.03 hereof. (c) (d) Additional Limited Partners means any person admitted to the Partnership as a Limited Partner on or after the effective date of these Articles pursuant to Section 4.03 Business Day shall mean any day on which the banks in the British Virgin Islands are open for business; Capital Account shall have the meaning set forth in Section 4.04 hereof. (e) Capital Contributions shall have the meaning set forth in Section 4.02. (f) Closing Capital Balance shall have the meaning set forth in Section 4.06 hereof. (g) Code means the United States Internal Revenue Code of 1986, as amended from time to time. (h) ERISA shall mean the United Stated Employee Retirement Income Security Act of 1974, as amended.
(i) (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) Event of Withdrawal means, with respect to a General Partner, the cessation of its status as a Partner as a result of retirement, death, dissolution (solvent or insolvent), removal, bankruptcy, incapacity, complete withdrawal or any other reason, other than the dissolution of the Partnership, or any other event requiring the withdrawal of a General Partner under the Act. Fiscal Year shall have the meaning set out in Section 7.01 hereof. General Partner shall have the meaning set out in the introductory paragraph hereinabove. If at any time the Partnership has more than one General Partner, the term General Partner shall be interpreted to mean General Partners. Limited Partner or Limited Partners shall have the meaning set out in the introductory paragraph hereinabove. Net Losses shall, with respect to any Valuation Period, mean the excess, if any, of the sum of (i) Securities Losses, and (ii) Net Operating Losses, over the sum of (iii) Securities Gains, and (iv) Net Operating Profits, for such Valuation Period. Net Operating Losses shall, with respect to any Valuation Period, mean the excess, if any, of the expenses incurred during such Valuation Period by the Partnership (other than expenses incurred in the sale or purchase of Securities) over the aggregate income earned during such Valuation Period by the Partnership from all sources whatsoever (other than from the sale or purchase of Securities). Net Operating Profits shall, with respect to any Valuation Period, mean the excess, if any, of the aggregate income earned during such Valuation Period by the Partnership from all sources whatsoever (other than from the sale or purchase of Securities) over all expenses incurred during such Valuation Period by the Partnership (other than expenses incurred in the sale or purchase of Securities). Net Profits shall, with respect to any Valuation Period, mean the excess, if any, of the sum of (i) Securities Gains, and (ii) Net Operating Profits, over (iii) Securities Losses, and (iv) Net Operating Losses, for such Valuation Period. Opening Capital Balance shall have the meaning set forth in Sections 4.05 hereof. Partners shall mean collectively, the General Partner and Limited Partners, and unless the context otherwise requires, a Partner may mean any General Partner or Limited Partner. Partnership shall mean Denali Investors Master Fund, L.P. Partnership Act shall mean the Partnership Act 1996 of the British Virgin Islands. Partnership Interests shall mean the interests in the Partnership subscribed for by the Partners.
(v) (w) (x) (y) (z) (aa) (bb) Person shall mean any individual or entity including, without limitation, a corporate entity, and the heirs, executors, administrators, successors and assigns of such Person where the context so admits; and, unless the context otherwise requires, the singular shall include the plural and the masculine gender shall include the feminine and neuter genders, and vice-versa. Representative shall have the meaning set forth in Section 6.05 hereof. Securities shall have the meaning set forth in Section 1.05 hereof. Securities Gains with respect to any Valuation Period, shall mean the aggregate realised and unrealised increase during such Valuation Period in the value of Securities and other investments of the Partnership as determined pursuant to Section 4.08 hereof. Securities Losses with respect to any Valuation Period, shall mean the aggregate realised and unrealised decrease during such Valuation Period in the value of Securities and other investments of the Partnership as determined pursuant to Section 4.08 hereof. Substitute Partner means a Person to whom a Partnership Interest has been assigned and who has been admitted to the Partnership as a General Partner ( Substitute General Partner ) or Limited Partner ( Substitute Limited Partner ) under these Articles. Valuation Period means the last day of each calendar month or such other days as the General Partner may determine. ARTICLE 3 GENERAL PARTNER 3.01. Management The management and control of the Partnership shall be vested exclusively in the General Partner. The General Partner, in its sole discretion, may admit additional General Partners to the Partnership who shall have such powers of management and control as may be delegated to them by the General Partner from time to time. Notwithstanding the foregoing, the General Partner shall not without the unanimous consent of all the Limited Partners: (i) do any act in contravention of these Articles; (ii) do any act which would make it impossible to carry on the ordinary business of the Partnership; (iii) enter a judgment against the Partnership; (iv) possess Partnership property, or assign its rights in specific Partnership property, for other than a Partnership purpose; (v) continue the business with Partnership property on the death, retirement, bankruptcy or incapacity of a general partner, unless the right to do so is given in these Articles. Unless otherwise agreed between them, whenever there shall be more than one General Partner hereunder, all matters of final decision and control over all Partnership matters shall reside in Denali Investors GP, LLC. Except as set forth herein, the Limited Partners shall have no part in the management of the Partnership and shall have no authority to act on behalf of the Partnership in connection with any matter. 3.02. Authority of General Partner
Each General Partner shall have the power acting singly by and in the name of the Partnership to carry out any and all of the objects and purposes of the Partnership set forth in Section 1.05 hereof, to perform all acts and enter into and perform all contracts and other undertakings which such General Partner may deem necessary or advisable or incidental thereto, and to have and possess the same rights and powers as any general partner of a limited partnership formed under the laws of the British Virgin Islands, including, without limitation, to: (c) (d) (e) (f) (g) (h) (i) (j) purchase, hold, sell, exchange, receive and otherwise acquire and dispose of the Securities and other assets of the Partnership; open, maintain and close accounts, including margin and custodial accounts, with brokers and prime brokers, which power shall include the authority to issue all instructions and authorisations, to brokers regarding Securities and/or funds therein; acquire and enter into any contract of insurance which such General Partner deems necessary or appropriate for the protection of the Partnership and the General Partner, for the conservation of Partnership assets, or for any purpose convenient or beneficial to the Partnership; open, maintain and close bank accounts and draw checks or other orders for the payment of monies; accept or reject any subscription for an interest in the Partnership for any reason and on such terms and conditions and at such times as the General Partner, in its sole discretion, shall determine, provided that such terms and conditions shall be subject to applicable laws and the terms and conditions set forth in these Articles. in furtherance of the foregoing, (i) admit Additional Limited Partners, subject to their meeting the admission requirements determined by the General Partner from time to time and (ii) enter into subscription agreements in connection therewith on such terms and conditions as determined by the General Partner; require a Limited Partner to withdraw all or a portion of its Capital Account; delegate any of its responsibilities and/or duties hereunder to other service providers, including without limitation, to any affiliates of the General Partner and to pay compensation therefore and to enter into agreements in connection therewith, which agreements may provide for indemnifications and exculpations of such service providers as deemed appropriate by the General Partner, and terminate such service providers in its sole discretion; pay all expenses of the Partnership, including in relation to its organisation and to disburse payments to parties in connection with withdrawals from the Partnership; authorise any member, officer or other agent of the General Partner or agent or employee of the Partnership to act for and on behalf of the Partnership in all matters incidental to the foregoing;
(k) (l) (m) (n) (o) do any and all acts required of the Partnership, and exercise all rights of the Partnership, with respect to its interest in any corporation or other entity; make such elections under the Code and other relevant tax laws as to the treatment of items of Partnership income, gain, loss, deduction and credit, and as to all other relevant matters, as may be provided herein or as the General Partner deems necessary or appropriate, including, without limitation, elections referred to in Section 754 of the Code, determination of which items of cash outlay are to be capitalised or treated as current expenses, and selection of the method of accounting and bookkeeping procedures to be used the Partnership, create any class of interests within each series, which classes shall form part of such series sharing in the assets and liabilities of such series, having such relative rights, powers and duties as may from time to time be established by the General Partner, so long as such relative rights, powers and duties do not adversely affect any of the rights, powers, and duties of any Limited Partners who are Partners at the time of the creation of such class, and to amend, without the consent of any of the Limited Partners, the terms and provisions of these Articles to reflect such relative rights, powers and duties as are applicable to such series which has been created pursuant to this Section 3.02(m); appoint functionaries to advice the Partnership, including but limited to, the appointment of Denali Investors, LLC as the Partnership s investment manager; and act for and on behalf of the Partnership in all matters incidental to the foregoing. The General Partner may delegate to any person all or any of their authority hereunder and may appoint, employ, contract or otherwise deal with any person not being a Limited Partner for the transaction of the business of the Partnership. 3.03. Payment of Costs and Expenses The General Partner may on behalf of the Partnership incur any and all obligations, and expend any sums and take any actions deemed by it to be necessary to conduct the Partnership s operations or to protect its assets, including selecting and engaging attorneys, accountants, securities brokers or such other persons on such terms and for such compensation as the General Partner may deem necessary or advisable and incurring such other capital, operating, financing or other expenses on behalf of the Partnership as the General Partner may, in its discretion, deem necessary or appropriate for the conduct of Partnership affairs. The General Partner will pay on behalf of the Partnership all expenses incurred in the organisation of the Partnership. The Partnership will reimburse the General Partner for such expenses from time to time. Such expenses may be amortised by the Partnership over a period of up to sixty (60) months, as determined by the General Partner. In the event the Partnership amortises such expenses and terminates its operations before such expenses are fully amortised, the unamortised portion of such fees shall be accelerated and will be debited against the Partnership s net asset value, thereby decreasing amounts otherwise available for distribution to Partners.
(c) The Partnership will pay, whether directly or through reimbursement of the General Partner, all other expenses incurred in connection with its operation, issuance of Partnership interests (including all expenses described in Section 3.03 hereof), and investment activities, or any other expense incurred with respect to Partnership activities, including without limitation, investment expenses (including, but not limited to, the fees and expenses charged by pooled investment vehicles and managed accounts in which the Partnership invests, custodial fees, initial and variation margin, interest and commitment fees on debit balances or borrowings, and consulting, advisory, investment banking and other professional fees relating to particular investments or contemplated investments), legal expenses, audit and tax preparation expenses, accounting fees, fees and expenses of an administrator, organisational expenses, fees and expenses for risk management services, insurance expenses including costs of any liability insurance obtained on behalf of the Partnership, regulatory expenses (including filing and license fees), any issue or transfer taxes chargeable in connection with any securities transactions, any entity level taxes and fees, costs of reporting and providing information to Partners, costs of litigation or investigation involving Partnership activities, and any extraordinary expenses. 3.04. Reliance by Third Parties Persons dealing with the Partnership are entitled to rely conclusively upon the certificate of a General Partner to the effect that such General Partner or any General Partner is then acting as a General Partner and upon the power and authority as herein set forth. Nothing herein contained shall impose any obligation on any brokerage firm, transfer agent, registrar, bank, lessor, lessee, mortgagee, grantee or other person or firm doing business with the Partnership to inquire as to whether or not written approval of the Limited Partners or assignees of Limited Partners has been obtained, and any stock power, lease, mortgage, deed, contract or other instrument executed by the General Partner, or any General Partner as herein authorised, shall be valid, sufficient and binding. 3.05. Other Activities The General Partner will devote such of its time during normal Business Days and hours as in its discretion shall be deemed necessary and sufficient for the management of the affairs of the Partnership. The General Partner and any member thereof and any principal, member, affiliate or employee of the General Partner or any member, shall not be precluded from (i) engaging, presently or in the future, consistent with the foregoing, and without accountability to the Partnership, in any other business venture or ventures of any nature and description including, without limitation, the management, financing, syndication or development of other ventures similar to the Partnership, or from acting as an investment manager or advisor to others, a trustee of any trust or a general partner of another limited partnership, or (ii) directly or indirectly purchasing, selling and holding securities for its own account or the accounts of such other business, irrespective of whether any such securities are purchased, sold or held for the account of the Partnership. Neither the Partnership nor any Partner shall have any rights in or to such other business ventures or the income or profits derived therefrom by virtue of these Articles nor shall the General Partner and any member thereof or any principal, member, affiliate or employee of the General Partner or any member be under any obligation to first offer any investment opportunities to the Partnership or to allocate investments, as between the
Partnership, other persons, or otherwise, in any particular manner, other than as it in its sole discretion shall determine. When the General Partner deems the purchase and sale of securities to be in the best interest of the Partnership and of other clients, it may aggregate the securities to be purchased or sold. 3.06. Exculpation The General Partner, is affiliates and members thereof and any of their respective principals, shareholders, members, partners, officers and employees (collectively, the Affiliated Parties ) shall not be liable to any Partner or the Partnership for any loss suffered by the Partner or the Partnership except that such party may be so liable if such loss is caused by willful misconduct or negligence. Neither the General Partner or Affiliated Parties shall be liable to the Partnership or to any of the Limited Partners for any loss suffered by the Partnership by reason of the acts or omissions or any error of judgment of any broker, agent or third-party service provider of the Partnership, provided that such broker, agent or third-party service provider was not selected, engaged or retained in manner that constitutes negligence or willful misconduct. The General Partner and any Affiliated Parties may consult with counsel and accountants in respect of Partnership affairs and, in acting in accordance with the written advice or opinion of such counsel or accountants, the General Partner and any Affiliated Parties shall not be liable for any loss suffered by the Partnership, provided that such counsel or accountants shall have been selected with reasonable care and the written advice was not induced by the General Partner or any Affiliated Parties negligence or willful misconduct. No General Partner nor any Affiliated Parties shall be liable for errors in judgment or for any acts or omissions that do not constitute negligence or willful misconduct. 3.07. Indemnification (c) Each principal, member, affiliate or employee of the General Partner (collectively, the Indemnified Parties ), shall be indemnified and held harmless by the Partnership from and against any and all losses, liabilities and expenses arising from claims, demands, investigations, actions, suits or proceedings, whether civil, criminal or administrative, relating to the management of the affairs of the Partnership, whether such person continues to be such at the time any such loss, liability or expense is paid or incurred, provided that the conduct of such person did not constitute negligence, willful misconduct or breach of fiduciary duty. At the discretion of the General Partner, the Partnership will advance to any such Indemnified Party funds to pay reasonable expenses incurred in connection with the defense of any actions or proceedings which arise out of such conduct, including attorney s fees actually or reasonably incurred. The rights of indemnification provided in this Section 3.07 will be in addition to any rights to which such Indemnified Party may otherwise be entitled by contract or as a matter of law, and shall extend to its successors and assigns. Indemnification may not be permitted under the United States Employee Retirement Income Security Act of 1974, as amended ( ERISA ) and, in the opinion of the United States Securities and Exchange Commission, indemnification for liabilities arising under
the United States federal securities laws is against public policy and is therefore unenforceable. 4.01. Capital Contributions ARTICLE 4 CAPITAL ACCOUNTS. Subject to Section 4.02, the Partnership is authorised to offer, issue and sell Partnership Interests in such manner as the General Partner may determine. Upon an appropriate amendment to these Articles, the General Partner may authorise the Partnership to issue one or more classes of Interests, which classes may be subject to different levels of fees or different investment strategies, or which may differ from one another in any other manner. 4.02. Initial Capital Contributions Each Limited Partner and General Partner has at the date hereof made an initial contribution to the capital of the Partnership. The initial Capital Contribution by a Limited Partner shall not be less than U.S.$250,000, except to the extent that the General Partner, in its sole discretion, accepts a lesser amount. However, in order to avoid non-compliance with the Mutual Funds (Professional Fund) Guidelines, 1998, the initial Capital Contribution by a majority of the Limited Partners into the Partnership must be U.S.$100,000. The General Partner reserves the right to limit the initial Capital Contribution and Additional Capital Contributions (as defined in Section 4.03) of any Limited Partner in certain circumstances and to accept as capital contributions cash, securities or other property in amounts or at valuations determined in the discretion of the General Partner. The General Partner reserves the right to return any such securities or other property contributed by a Limited Partner to such Limited Partner in connection with any withdrawals by such Limited Partner (including any mandatory withdrawals required by the General Partner with respect to such a Limited Partner pursuant to the terms of these Articles) or distributions to such Limited Partner, pursuant to the terms and conditions of these Articles. 4.03. Additional Capital Contributions A Partner may, with the consent of the General Partner, make additional contributions to the capital of the Partnership of not less than U.S.$50,000, except to the extent the General Partner, in its sole discretion, accepts a lesser amount. The Partner making such contribution shall execute such instrument or instruments as the General Partner may deem advisable in connection therewith. The amount contributed by any Partner pursuant to this Section 4.03 is called such Partner s Additional Capital Contribution. A Partner is not obligated to make contributions to the Partnership beyond its initial Capital Contribution. Upon making an amendment to these Articles, the General Partner may admit one or more Additional Limited Partners, effective the first business day of a Valuation Period or at any other time selected at the discretion of the General Partner. Each Additional Limited Partner shall execute an appropriate counterpart to these Articles or otherwise agree in writing to be bound by the terms hereof. The admission of an Additional Limited Partner shall not dissolve the Partnership.
4.04. Capital Accounts (c) A capital account shall be established for each Partner on the books of the Partnership (the Capital Account ) and such account shall be maintained and adjusted as provided for herein and in such other manner as the General Partner shall determine to be necessary or desirable to fairly account for portfolios or other variations in Capital Accounts between Partners, separate classes or interests, reserve accounts, or otherwise. As of the first day of each Valuation Period, an Opening Capital Balance in each Partner s Capital Account for such Valuation Period shall be determined in the manner set forth in Section 4.05 hereof. As of the last day of each Valuation Period, a Closing Capital Balance in each Partner s Capital Account for such Valuation Period shall be determined in the manner set forth in Section 4.06 hereof. It is intended that (i) the Capital Accounts be maintained at all times in accordance with Code Section 704 and applicable Treasury Regulations, the provisions of which, including, without limitation, the provisions of Treasury Regulation Section 1.704(2)(ii)(d) (relating to a qualified income offset ), are hereby incorporated by this reference; (ii) the Capital Accounts be increased or decreased by any items required by the Treasury Regulations under Code Section 704 to increase or decrease, respectively, a Partner s Capital Account; and (iii) the provisions of these Articles relating to the Capital Accounts and allocations be interpreted in a manner consistent therewith. The General Partner shall be authorised to make appropriate adjustments to the allocations of items pursuant to this Article 4 if necessary in order to comply with Code Section 704 or applicable Treasury Regulations issued with respect thereto; provided, however, that no such change shall have a materially adverse effect upon the amount distributable to any Partner hereunder. Additions to capital pursuant to Section 4.03 may result in a separate Capital Account as determined by the General Partner. Two or more capital accounts of the same Limited Partner may be combined after the conclusion of any Fiscal Year. 4.05. Opening Capital Balance A Partner s Opening Capital Balance for the Valuation Period in which such Partner first becomes a Partner shall be the amount equal to such Partner s initial Capital Contribution. A Partner s Opening Capital Balance for each Valuation Period, other than the Valuation Period in which such Partner first becomes a Partner, shall be the amount equal to such Partner s Closing Capital Balance for the first preceding Valuation Period, increased by any Additional Capital Contributions made pursuant to Section 4.03 hereof as of the beginning of such Valuation Period, and decreased by the amount of such Partner s capital withdrawals made pursuant to Section 6.01 hereof as of the end of the preceding Valuation Period (even if the amount of the capital withdrawal is paid after the beginning of such Valuation Period).
(c) The Opening Capital Balance of the Partnership for any Valuation Period shall be the aggregate of the Opening Capital Balances of all Partners for such Valuation Period. 4.06. Closing Capital Balance A Partner s Closing Capital Balance for any Fiscal Year shall be the amount of such Partner s Opening Capital Balance for such Fiscal Year, increased by the Net Profits allocated to the Partner pursuant to Section 4.07 hereof for such Fiscal Year, and decreased (i) by the Net Losses allocated to the Partner pursuant to Section 4.07 hereof for such Fiscal Year, and (ii) by the amount of any distributions to such Partner in accordance with Section 4.10 hereof during such Fiscal Year. The Closing Capital Balance of the Partnership for any Fiscal Year shall be the aggregate of the Closing Capital Balances of all Partners for such Fiscal Year. 4.07. Valuation of Assets For purposes of determining the unrealised Securities Gains and Securities Losses of the Partnership, such securities and other assets and liabilities shall be valued as follows: (c) Securities which are listed on a national securities exchange shall be valued at their last sales prices on the date of determination on the largest national securities exchange on which such securities shall have traded on such date, or if trading in such Securities on the largest national securities exchange on which such Securities shall have traded on such date was reported on the consolidated tape, their last sales prices on the consolidated tape (or, in the event that the date of determination is not a date upon which a national securities exchange was open for trading, on the last prior date on which such securities was open not more than ten (10) days prior to the date of determination). If no such sales of Securities occurred on either of the foregoing dates, such Securities shall be valued at the mid-mark between the bid and the asked prices on the largest national securities exchange on which such securities are traded, on the date of determination, or, if bid and asked prices for in such Securities on the largest national securities exchange on which such Securities shall have traded on such date were reported on the consolidated tape, the mid-mark between the bid and the asked prices on the consolidated tape (or, if the date of determination is not a date upon which such securities exchange was open for trading, on the last prior date on which such a national securities exchange was so open not more than ten (10) days prior to the date of determination). Securities which are not listed shall be valued at the mid-mark between the bid and the asked prices, unless included in the NASDAQ National Market System, in which case they shall be valued based upon their last sales prices (if such prices are available). Securities for which no such market prices are available shall be valued at such value as the General Partner may reasonably determine; All other assets (except good will, which shall not be taken into account), shall be valued at cost; If the Partnership s investment manager determines that the valuation of any Securities or other property pursuant to and does not fairly represent market value, it may cause
the Partnership to value such Securities or other property as it reasonably determines and shall set forth the basis of such valuation in writing in the records of the Partnership; and (d) Securities not denominated in U.S. Dollars will be translated into U.S. Dollars at prevailing exchange rates as determined by the Partnership s investment manager. The foregoing valuations and methods may be modified by the General Partner, in its sole discretion, if and to the extent it shall determine that such modifications are appropriate and reasonable to reflect the value of Securities or other assets, including to reflect liquidity conditions or other factors affecting such value. Valuation of Securities or other assets not specifically described above similarly shall be as determined in the sole discretion of the General Partner, which such determination shall be final. 4.08. Determination by General Partner of Certain Matters All matters concerning the valuation of Securities, the allocation of Net Profits and Net Losses among the Partners, the allocation of related Partnership tax items among the Partners and all accounting procedures not specifically and expressly provided for by the terms of these Articles, shall be determined by the General Partner, whose determination, so long as made in good faith, shall be final and conclusive as to all of the Partners. The General Partner may waive some or all of its rights under these Articles, either generally or with respect to particular matters, periods or Partners, and any such waiver or agreement shall not bind the General Partner with respect to other periods or Partners, nor with respect to any other matters or rights set forth herein. 4.09. Distributions Generally It is not expected that the Partnership will make any distributions of Net Profits prior to its termination. The General Partner may declare distributions of Net Profits (in cash or other assets of the Partnership or any combination thereof, in the sole discretion of the General Partner) at such times and in such amounts as the General Partners shall determine in its sole discretion, but it shall not be obligated (except as provided in Article 6) to do so under any circumstance. Any such distributions shall be made ratably to all Limited Partners in accordance with their respective Capital Accounts at the time of such distribution. The General Partner may withhold taxes from any distributions to any Partner to the extent required by the Code or any other applicable law. The General Partner may set up such reserves as may be required by the needs of the Partnership. Unless otherwise determined by the General Partner, for the purposes of determining Net Operating Profits or Net Operating Losses in any Valuation Period, any increase in such reserves shall be treated as an expense of the Partnership and any decrease in such reserves shall be treated as income of the Partnership. If the Partnership should distribute property other than cash pursuant to this Section 4.10 or Article 6, the Capital Accounts of the Partners shall be adjusted as if such property were sold at its fair market value and the cash proceeds of such sale were distributed.
Each Limited Partner is required to take into account his/her allocable share of all items of income, gain, loss, deduction or credit for the Partnership regardless of whether such Limited Partner has received any distributions from the Partnership. Because the General Partner is not required to make any distributions of Net Profits, a Limited Partner s income tax liability in a particular year may exceed the amount of cash actually received by him/her. 4.10. New Issues Account In the event that the Partnership invests in equity securities in an initial public offering ( New Issues ), as contemplated in National Association of Securities Dealers, Inc. (the NASD ) Rule 2790 (or any successor provisions thereto), the General Partner may allocate Securities Gains or Securities Losses attributable to such New Issues only to the Partners who are not deemed by the General Partner to be Restricted Persons (as defined in Rule 2790). The determination of the General Partner as to whether a particular Partner is a Restricted Person shall be final. The Partnership will have, in addition to each Partners Capital Account, a special brokerage account with a separate identification number (the New Issues Account ), the sole purpose of which will be to purchase New Issues. Only those Partners that are not deemed to be Restricted Persons will have a beneficial interest in the New Issues Account. To effect a transaction in the New Issues Account, the requisite funds would be transferred to the New Issues Account from one or more of the Partners Capital Accounts. New Issues will be purchased in the New Issues Account, held there and eventually sold out of this Account or transferred to the relevant Partners Capital Account at fair market value. If sold, the proceeds of sale would be transferred from the New Issues Account to the relevant Partners Capital Account. At the end of the particular Fiscal Year, if the New Issues Account has been in existence in that Fiscal Year: (i) (ii) interest will be charged to the Partners having a beneficial interest in the New Issues Account on certain monies paid to purchase the securities in the New Issues Account. Such interest will be charged to the Partners in accordance with their interests in the New Issues Account (being based on their Capital Accounts as of the beginning of the Fiscal Year) at the rate from time to time being paid by the Partnership for borrowed funds during the various periods that funds from the Capital Accounts have been held in or made available to the New Issues Account, and such interest will be credited to all of the Partners in the Partnership in accordance with their Capital Accounts as of the beginning of the Fiscal Year; and the gains or losses resulting from the various transactions in the New Issues Account will be credited or debited to the Partners having an interest in the New Issues Account in accordance with their interests therein.