LIMITED PARTNERSHIP AGREEMENT OF ENERGEA PORTFOLIO 3 AFRICA LP, a Delaware Limited Partnership ___________ June 5, 2025
|
OF
a
Delaware Limited Partnership
___________
June
5, 2025
|
OF
This
Limited Partnership Agreement (as amended from time to time in accordance with
its terms, this "Agreement") is entered on June 5, 2025, by and among
Energea Portfolio 3 Africa LP, a Delaware limited partnership (the "Company"),
Energea Global LLC, a Delaware limited liability company ("Energea Global"
or the "General Partner"), and the persons currently holding Class A
Investor Shares (as hereinafter defined) and the persons admitted to the
Company as limited partners by the General Partner following the date of this
Agreement (collectively "Limited Partners").
Introduction
WHEREAS,
the Company was formed on March 11, 2021 as a Delaware limited liability
company and the Company elected to be classified as a C-corporation for federal
income tax purposes;
WHEREAS,
on June 5, 2025, the General Partner (in its then current capacity as the
manager of the Company) determined that it was advisable and in the Company's
best interest to convert the Company from a limited liability company to a
limited partnership pursuant to and under the Delaware Limited Liability
Company Act (as amended) (the "LLC Act") and the Act (as hereinafter
defined) (the "Conversion") and in connection therewith (i) the Company
maintained its election to be classified for federal income tax purposes as a
C-corporation and (ii) the Amended and Restated Limited Liability Company
Agreement (the "OA") was superseded and replaced by this Agreement
pursuant to the authority granted to the General Partner (in its then current
capacity as the manager of the Company) under the OA;
WHEREAS,
in connection with the Conversion (i) each outstanding common share
automatically converted into one (1) Common Share (as hereinafter defined) and
(ii) each outstanding class A investor share (the "LLC Class A Investor
Shares") automatically converted into one (1) Investor Class A Investor Share
(having the rights set forth in the Authorizing Resolution attached hereto as Exhibit
A (the "Class A Authorizing Resolution");
WHEREAS,
the LLC Class A Investor Shares are being offered to the public pursuant to the
Offering Statement of the Company qualified by the Securities and Exchange
Commission (the "SEC") on June 17, 2024, (as the same may be amended,
the "Offering Circular") and each Limited Partner holding Class A
Investor Shares purchased its interest pursuant to the form of investment
agreement in the form previously approved by the General Partner in its
capacity as the manager of the Company (the "Investment Agreement");
WHEREAS,
in connection with the Conversion and the Company's annual amendment to the
Offering Circular, the Class A Authorizing Resolution contains amendments to the
authorizing resolution creating the class A investor shares which have been
approved by the General Partner to conform the Class A Authorizing Resolution
to new business practices of the Company set forth in the amendment to the
Offering Circular (as permitted under this Agreement and the OA);
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained in
this Agreement, the sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
Article I.
CONTINUATION OF LIMITED PARTNERSHIP
1.01
Continuation of Limited Partnership. The Company was formed in
accordance with and pursuant to the LLC Act and connection with the Conversion,
the Company became a Delaware limited partnership under the Delaware Revised
Uniform Limited Partnership Act (6 Del. C. § 17-101 et seq.), as the same may
be hereafter amended from time to time (the "Act") which is organized
for the purposes set for the below. The rights and obligations of the General
Partner and the Limited Partners to one another and to third parties shall be
governed by the Act except that, in accordance with 6 Del. C. § 17-1101(c),
conflicts between provisions of the Act and provisions in this Agreement shall
be resolved in favor of the provisions in this Agreement except where the
provisions of the Act may not be varied by contract as a matter of law.
1.02
Name. The name of the Company shall be "Energea Portfolio 3
Africa LP" and all of its business shall be conducted under that name or such
other name(s) as may be designated by the General Partner.
1.03
Purpose. The purpose of the Company shall be to invest in solar
energy projects in Africa, as described more fully in the Offering Circular but
the Company may engage in any other business in which limited partnerships may
legally engage under the Act. In carrying on its business, the Company may
enter into contracts, incur indebtedness, sell, lease, or encumber any or all
of its property, engage the services of others, enter into joint ventures, and
take any other actions the General Partner deems advisable.
1.04
Fiscal Year. The fiscal and taxable year of the Company shall be
the calendar year, or such other period as the General Partner determines.
Article II.
CONTRIBUTIONS AND LOANS
2.01
Initial Contributions. The General Partner has not contributed
any capital to the Company. Each Limited Partner has contributed or will
contribute to the capital of the Company the amount specified in his, her, or
its Investment Agreement. The capital contributions of General Partner or any
Limited Partner (collectively, the "Partners") to the Company are referred
to in this Agreement as "Capital Contributions."
2.02
Other Required Contributions. No Partner shall be obligated to
contribute any capital to the Company beyond the Capital Contributions
described in Section 2.01.
2.03
Loans.
(a)
In General. The General Partner or its affiliates may, but shall
not be required to, lend money to the Company in the General Partner's sole
discretion. No Limited Partner may lend money to the Company without the prior
written consent of the General Partner. Subject to applicable state laws
regarding maximum allowable rates of interest, loans made by any a Partner to
the Company ("Partner Loans") shall bear interest at the higher of (i)
the prime rate of interest designated in the Wall Street Journal on any date
within ten (10) days of the date of the loan, plus four (4) percentage points;
or (ii) the minimum rate necessary to avoid "imputed interest" under section
7872 or other applicable provisions of the Internal Revenue Code of 1986, as
amended (the "Code"). Partner Loans shall be payable on demand and shall
be evidenced by one or more promissory notes.
(b)
Repayment of Loans (Priority). After payment of (i) current and
past-due debt service on liabilities of the Company other than Partner Loans,
and (ii) all operating expenses of the Company, the Company shall pay the
current and past-due debt service on any outstanding Partner Loans before
distributing any amount to any Partner pursuant to Article Four. All Partner
Loans shall be repaid pro rata, paying all past-due interest first,
then all past-due principal, then all current interest, and then all current
principal.
2.04
Other Provisions on Capital Contributions. Except as otherwise
provided in this Agreement or by law:
(a)
No Partner shall be required to contribute any additional capital to the
Company after payment of the Capital Contribution described in Section 2.01;
(b)
No Partner may withdraw any part of his, her, or its capital from the
Company;
(c)
No Partner shall be required to make any loans to the Company;
(d)
Partner Loans shall not be considered a contribution of capital and
shall not result in the adjustment of the number of Shares (as hereinafter
defined) owned by a Partner;
(e)
No interest shall be paid on any initial or additional Capital
Contributions;
(f)
Under any circumstance requiring a return of all or any portion of a Capital
Contribution, no Partner shall have the right to receive property other than
cash; and
(g)
No Partner shall be liable to any other Partner for the return of his,
her, or its Capital Contributions.
2.05
No Third Party Beneficiaries. Any obligation or right of the Partner
to contribute capital under the terms of this Agreement does not confer any
rights or benefits to or upon any person who is not a party to this Agreement.
Article III.
SHARES
3.01
Limited Partnership Interests. The existing
partnership interests of the Company consist of Two Billion Five Hundred and
One Million (2,501,000,000) (such partnership interests are hereinafter
referred to as the "Shares"). As of the date hereof: (i) 1,000,000 of
the Shares are designated as "Common Shares" all of which are owned by
the General Partner and 2,500,000,000 Shares are designated as "Investors
Shares" and 500,000,000 of the Investor Shares are designated as Class A
Investor Shares (having the rights, powers and preferences set forth in the
Authorizing Resolution attached hereto as Exhibit A), all of which are
currently owned by the Limited Partners, 2,000,000,000 of the Investor Shares
shall be designated as Class B Investor Shares, Class C Investor Shares, Class
D Investor Shares and Class I Investor Shares (having the rights, powers and
preferences set forth in the Authorizing Resolution attached hereto as Exhibit
B), none of which are outstanding as of the date hereof.
3.02
Classes of Investor Shares. In the event that any Investor
Shares are not sold either (i) pursuant to Investment Agreements as described
in the Offering Circular or (ii) pursuant to the Company's expected offering to
accredited investors pursuant to Regulation D under the Securities Act of 1933,
as amended (the "Securities Act"), the General Partner may determine
remove any rights, powers and preferences of such unsold Investor Shares. The
General Partner may divide any Investor Shares which are not outstanding into
one or more classes. The number of Shares of each such class of Investor
Shares, and the rights and preferences of each such class, shall be as set
forth in the resolution or resolutions of the General Partner creating such
class, referencing this Section 3.02 (each, an "Authorizing
Resolution"). Without limitation of the generality of the foregoing, the General
Partner may establish, with respect to each class of Investor Shares, its
voting powers, conversion rights or obligations, redemption rights or
obligations, preferences as to distributions, and other matters. The
Authorizing Resolution providing for issuance of any class of Investor Shares
may provide that such class shall be superior or rank equally or be junior to
the then outstanding Investor Shares of any other class except to the extent
prohibited by the terms of the Authorizing Resolution establishing another
class.
3.03
Share Splits and Consolidations. The General Partner may at any
time increase or decrease the authorized and/or outstanding number of Shares of
any class or series, including Common Shares, provided that any increase or
decrease in the number of Shares outstanding shall be made pro rata with
respect to all Partners owning the outstanding Shares of such class or series.
The General Partner shall promptly notify all of the Partners of any such
transaction.
3.04
Certificates. The Shares shall not be evidenced by written
certificates unless the General Partner determines otherwise. If the General
Partner determines to issues certificates representing Shares, the certificates
shall be subject to such rules and restrictions as the General Partner may
determine.
3.05
UCC. If determined by the General Partner, all Shares shall be
"securities" governed by Article 8 of the Uniform Commercial Code in any
jurisdiction (a) that has adopted revisions to Article 8 of the Uniform
Commercial Code substantially consistent with 1994 Revisions to Article 8
adapted by the American Law Institute and the National Conference of
Commissioners on Uniform State Laws and (b) whose law may be applicable, from
time to time, to the issues of perfection, the effect of perfection or
non-perfection, and the priority of a security interest in Shares.
3.06
Intentionally Omitted.
3.07
Registry of Shares. The Company shall keep or cause to be kept on
behalf of the Company a register of the Partners. The Company may, but shall
not be required to, appoint a transfer agent registered with the securities
exchange on which any Shares are registered.
Article IV.
DISTRIBUTIONS
4.01
In General. The General Partner may, in its sole discretion, make
and pay distributions of cash or other assets of the Company to the Partners.
4.02
Special Rules Governing Distributions. Except as otherwise
provided in this Agreement or in an Authorizing Resolution (i) any
distributions of the Company not expressly payable to the holders of a class of
Investor Shares shall be payable to the holders of the Common Shares, (ii) any
distributions made to the holders of any class of Investor Shares as a group
shall be made pro rata among such holders based on their
respective ownership of the Shares of such class, and (iii) no Partner shall
have any right to distributions except as may be authorized by the General
Partner unless otherwise provided in an Authorizing Resolution.
4.03
Items Taken Into Account. In determining the amount and timing of
distributions, the General Partner may take into account the following items of
income and expense, among others:
(a)
Revenue from the rental of solar projects;
(b)
Revenue from operations and maintenance contracts;
(c)
Interest paid on loans made by the Company or short term investments
made by the Company;
(d)
Payments made to landowners;
(e)
The cost of utilities, security, insurance, and software;
(f)
Expenses associated with operating and maintaining solar power projects;
(g)
The net proceeds from the sale or refinancing of property;
(h)
The cost of equipment;
(i)
Debt service payments;
(j)
Cash distributions from, and capital contributions to, entities in which
the Company owns an interest;
(k)
Amounts added to and released from reserve accounts established by the General
Partner in its sole discretion;
(l)
Fees paid to the General Partner and its affiliates;
(m)
Fees paid to third parties; and
(n)
all of the other operating expenses of the Company.
4.04
Tax Withholding. To the extent the Company is required to pay
over any amount to any federal, state, local or foreign governmental authority
with respect to distributions or allocations to any Partner, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to that Partner. If the amount paid over was not withheld from an actual
distribution (i) the Company shall be entitled to withhold such amounts from
subsequent distributions, and (ii) if no such subsequent distributions are
anticipated for six (6) months, the Partner shall , at the request of the
Company, promptly reimburse the Company for the amount paid over.
4.05
Manner of Distribution. Unless otherwise provided herein, all
distributions to the Partners will be made as Automated Clearing House (ACH)
deposits into an account designated by each Partner. If a Partner does not
authorize the Company to make such ACH distributions into a designated Partner
account, distributions to such Partner will be made by check and mailed to such
Partner after deduction by the Company from each check of a Fifty Dollar ($50)
processing fee.
4.06
Other Rules Governing Distributions. No distribution prohibited
by 6 Del. C. §17-607, 6 Del. C. § 17-804 or not specifically authorized under
this Agreement shall be made by the Company to any Partner in his or its
capacity as a Partner. A Partner who receives a distribution prohibited by 6
Del. C. § 17-607 or 6 Del. C. § 17-804 shall be liable as provided therein.
Article V.
MANAGEMENT
5.01
Management by General Partner.
(a)
In General. The business and affairs of the Company shall be
directed, managed, and controlled by the General Partner. Energea Global shall
serve as the General Partner.
(b)
Powers of General Partner. The General Partner shall have full
and complete authority, power and discretion to manage and control the
business, affairs and properties of the Company, to make all decisions
regarding those matters, to execute any contracts or other instruments on
behalf of the Company, and to perform any and all other acts or activities
customary or incidental to the management of the Company's business.
(c)
Examples of General Partner's Authority. Without limiting the
grant of authority set forth in Section 5.01(b), the General Partner
shall have the power to (i) create classes of Investor Shares with such terms
and conditions as the General Partner may determine in its sole discretion;
(ii) issue Shares to any person for such consideration as the General Partner maybe
determine in its sole discretion, and admit such persons to the Company as Limited
Partners; (iii) engage the services of third parties to perform services on
behalf of the Company; (iv) enter into one or more joint ventures; (v)
purchase, lease, sell, or otherwise dispose of real estate and other assets, in
the ordinary course of business or otherwise; (vi) enter into leases and any
other contracts of any kind; (vii) incur indebtedness on behalf of the Company,
whether to banks or other lenders; (viii) determine the amount of the Company's
available cash and the timing and amount of distributions to Partners (except
as otherwise set forth in an Authorizing Resolution); (ix) determine the
information to be provided to the Partners in accordance with this Agreement;
(x) grant mortgages, liens, and other encumbrances on the Company's assets;
(xi) make all elections under the Code and the provisions of State and local
tax laws; (xiii) file a petition in bankruptcy; (xiv) discontinue the business
of the Company; (xv) make investments in other persons or entities in the form
of debt or equity, (xvi) make short term investments or (xv) dissolve the
Company.
(d)
Restrictions on Limited Partners. Except as expressly provided
otherwise in this Agreement, Limited Partners shall not be entitled to
participate in the management or control of the Company, nor shall any Limited
Partner hold himself, herself or itself out as having such authority and unless
otherwise set forth in an Authorizing Resolution, each Investor Shre shall have
one vote per share. Unless authorized to do so by the General Partner, no
attorney-in-fact, employee or other agent of the Company shall have any power
or authority to bind the Company in any way, to pledge its credit or to render
it liable pecuniarily for any purpose. No Limited Partner shall have any power
or authority to bind the Company unless such Limited Partner has been
authorized by the General Partner in writing to act as an agent of the Company
in accordance with the previous sentence.
(e)
Authorizing Resolutions. Notwithstanding the foregoing provisions
of this Section 5.01, an Authorizing Resolution may limit the authority
of the General Partner and/or confer voting rights on any Limited Partner(s) or
class or series of Limited Partners.
(f)
Reliance by Third Parties. Anyone dealing with the Company shall
be entitled to assume that the General Partner and any officer authorized by
the General Partner to act on behalf of and in the name of the Company has full
power and authority to encumber, sell or otherwise use in any manner any and
all assets of the Company and to enter into any contracts on behalf of the
Company, and shall be entitled to deal with the General Partner or any officer
as if it were the Company's sole party in interest, both legally and
beneficially. No Limited Partner shall assert, vis-à-vis a third party, that
such third party should not have relied on the apparent authority of the General
Partner or any officer authorized by the General Partner to act on behalf of
and in the name of the Company, nor shall anyone dealing with the General
Partner or any of its officers or representatives be obligated to investigate
the authority of such person in a given instance.
5.02
Standard of Care. The General Partner shall conduct the Company's
business using its business judgment.
5.03
Time Commitment. The General Partner shall devote such time to
the business and affairs of the Company as the General Partner may determine in
its sole and absolute discretion.
5.04
Reimbursement of Expenses. The Company shall reimburse the General
Partner and its affiliates, without interest, for the actual out-of-pocket
expenses they incur in connection with the offering of any Investor Shares, and
the admission of investors in the Company, including, without limitation,
travel, legal, accounting, filing, advertising, and all other expenses incurred
in connection with the offer and sale of interests in the Company.
5.05
Compensation of General Partner and its Affiliates. The General Partner
and its affiliates shall be entitled to the compensation and/or expense
reimbursement (in addition to that described in Section 5.04) described
in the Offering Circular.
5.06
Removal of General Partner.
(a)
In General. The General Partner may be removed by the affirmative
vote of Limited Partners holding seventy-five percent (75%) of the total number
of Investor Shares then issued and outstanding (a "Super Majority Vote"),
but only if the Limited Partners have Cause (as hereinafter defined) to remove
the General Partner, as defined in Section 5.06(c) and follow the
procedure set forth in Section 5.06(b).
(b)
Procedure.
(i)
Notice and Response. A Limited Partner who wishes to remove the General
Partner and believes there is ▇▇▇▇▇ for doing so within the meaning of Section
5.06(c) shall notify the General Partner, referencing this Section 5.06
and setting forth in detail the reasons for his, her, or its belief. Within
thirty (30) days after receiving such a notice, the General Partner shall
respond by acknowledging the receipt of the notice and (i) stating that the General
Partner does not believe there is merit in the Limited Partner's allegations,
(ii) explaining why the General Partner does not believe Cause exists for
removal, or (iii) stating that while Cause may exist for removal, the General
Partner does not believe removal would be in the best interest in the Company.
If the General Partner fails to respond, the General Partner shall be deemed to
have stated that it does not believe there is merit in the Limited Partner's
allegations. In the event the Limited Partner communicates with any third party
concerning his request for removal, including any other Limited Partner but not
including his, her, or its own legal counsel, he, she, or it shall include a
copy of the General Partner's response. The failure of the General Partner to
include in its response any defense, facts, or arguments shall not preclude the
General Partner from including such defense, facts, or arguments in subsequent
communications or proceedings.
(ii)
Vote. After following the procedure described in Section
5.06(b)(i), the Limited Partners owning at least twenty-five percent (25%)
of the Investor Shares then issued and outstanding (the "Dissident Limited
Partners") may call for a vote of the Limited Partners. The General Partner
and a single representative chosen by the Dissident Limited Partners shall
cooperate in sending to all Limited Partners a package of materials bearing on
whether Cause exists under Section 5.06(c) and whether it is in the best
interest of the Company to remove the General Partner, and a vote of the
Limited Partners shall be taken by electronic means, with responses due within
thirty (30) days. The failure of the General Partners or the Dissident Limited
Partners to include in this package any defense, facts, or arguments shall not
preclude them from including such defense, facts, or arguments in subsequent
communications or proceedings.
(iii)
Arbitration. In the event of a Super Majority Vote to remove the General
Partner within the thirty (30) day period described in Section 5.06(b)(ii),
then the question as to whether Cause exists to remove the General Partner
shall be referred to a single arbitrator in arbitration proceedings held in
Wilmington, Delaware in conformance with the then-current rules and procedures
of the American Arbitration Association. The removal of the General Partner shall
not become effective until the arbitrator determines that Cause exists and the
decision of the arbitrator shall be binding and non-appealable. In the event
there is no Super Majority Vote to remove the General Partner within the thirty
(30) day period described in Section 5.06(b)(ii), then the General
Partner shall not be removed and no subsequent proceeding to remove the General
Partner shall be held with respect to substantially similar grounds.
(c)
Cause Defined. For purposes of this Section 5.06, "Cause"
shall be deemed to exist if any only if:
(i)
Uncured Breach. The General Partner breaches any
material provision of this Agreement and the breach continues for more than
(30) days after the General Partner has received written notice, or, in the
case of a breach that cannot be cured within thirty (30) days, the General
Partner fails to begin curing the breach within thirty (30) days or the breach
remains uncured for ninety (90) days;
(ii)
Bankruptcy. The General Partner makes a general assignment for
the benefit of its creditors; or is adjudicated a bankrupt; or files a
voluntary petition in bankruptcy; or files a petition or answer seeking
reorganization or an arrangement with creditors, or to take advantage of any
insolvency, readjustment of loan, dissolution or liquidation law or statute; or
an order, judgment, or decree is entered without the General Partner's consent
appointing a receiver, trustee or liquidator for the General Partner;
(iii)
Bad Acts. The General Partner engages in willful misconduct or
acts with reckless disregard to its obligations, in each case causing material
harm to the Company, or engages in bad faith in activities that are beneficial
to itself and cause material harm to the Company, and the individual
responsible for such actions is not terminated within thirty (30) days after
the General becomes aware of such actions.
(d)
No Effect on Common Shares. The removal of the General Partner shall
not affect the interests of the General Partner in its Common Shares.
5.07
Removal of General Partner by Lender.
(a)
In General. The General Partner may, on behalf of the Company,
enter into an agreement with a lender that allows the lender to remove the General
Partner in the event of a default under the loan and replace the General
Partner with a person designated by the lender.
(b)
No Effect on Ownership. The removal of the General Partner
pursuant to this Section 5.07 shall not, of itself, affect the General
Partner's ownership of Common Shares.
5.08
Election of New General Partner Following Removal. If the General
Partner has been removed in accordance with this Agreement, a new general
partner of the Partnership shall be elected by a Super Majority Vote.
Article
VI.
OTHER BUSINESSES; INDEMNIFICATION; CONFIDENTIALITY
6.01
Other Businesses. Each Partner (including the General Partner)
may engage in any business whatsoever, including a business that is competitive
with the business of the Company, and the other Partners shall have no interest
in such businesses and no claims on account of such businesses, whether such
claims arise under any the doctrine applicable to partnerships which is
substantially similar or analogous to "corporate opportunity," an alleged
fiduciary obligation owed to the Company or the Partners, or otherwise. Without
limiting the preceding sentence, the Limited Partners acknowledge that the General
Partner and/or its affiliates do and intend to sponsor, manage, invest in, and
otherwise be associated with other entities and business investing in the same
assets classe(es) as the Company, some of which could be competitive with the
Company. No Limited Partner shall have any claim against the General Partner or
its affiliates on account of such other entities or businesses.
6.02
Exculpation and Indemnification
(a)
Exculpation.
(i)
Covered Persons. As used in this Section 6.02, the term "Covered
Person" means (i) the General Partner and its affiliates, (ii) the members,
managers, officers, employees, and agents of the General Partner and its
affiliates, and (iii) the officers, employees, and agents of the Company,
including any representative of the Company, each acting within the scope of
his, her, or its authority.
(ii)
Standard of Care. No Covered Person shall be liable to the
Company for any loss, damage or claim incurred by reason of any action taken or
omitted to be taken by such Covered Person, including actions taken or omitted
to be taken in the good-faith business judgment of such Covered Person, so long
as such action or omission does not constitute fraud or willful misconduct by
such Covered Person.
(iii)
Good Faith Reliance. A Covered Person shall be fully protected in
relying in good faith upon the records of the Company and upon such
information, opinions, reports, or statements (including financial statements
and information) of the following persons: (i) another Covered Person; (ii) any
attorney, independent accountant, appraiser, or other expert or professional
employed or engaged by or on behalf of the Company; or (iii) any other person
selected in good faith by or on behalf of the Company, in each case as to
matters that such relying Covered Person reasonably believes to be within such
other person's professional or expert competence. The preceding sentence shall
in no way limit any person's right to rely on information to the extent
provided in the Act.
(b)
Liabilities and Duties of Covered Persons.
(i)
Limitation of Liability. This Agreement is not intended to, and
does not, create or impose any fiduciary duty on any Covered Person.
Furthermore, each Partner and the Company hereby waives any and all fiduciary
duties that, absent such waiver, may be implied by applicable law, and in doing
so, acknowledges and agrees that the duties and obligation of each Covered
Person to each other and to the Company are only as expressly set forth in this
Agreement. The provisions of this Agreement, to the extent that they restrict
the duties and liabilities of a Covered Person otherwise existing at law or in
equity, are agreed by the Partners to replace such other duties and liabilities
of such Covered Person.
(ii)
Duties. Whenever a Covered Person is permitted or required to
make a decision, the Covered Person shall be entitled to consider only such
interests and factors as such Covered Person desires, including its own
interests, and shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Company or any other person. Whenever
in this Agreement a Covered Person is permitted or required to make a decision
in such Covered Person's "good faith," the Covered Person shall act under such
express standard and shall not be subject to any other or different standard
imposed by this Agreement or any other applicable law.
(c)
Indemnification.
(i)
Generally. To the fullest extent permitted by the Act, as the
same now exists or may hereafter be amended, substituted or replaced (but, in
the case of any such amendment, substitution or replacement only to the extent
that such amendment, substitution or replacement permits the Company to provide
broader indemnification rights than the Act permitted the Company to provide
prior to such amendment, substitution or replacement), the Company shall
indemnify, hold harmless, defend, pay and reimburse any Covered Person against
any and all losses, claims, damages, judgments, fines or liabilities, including
reasonable legal fees or other expenses incurred in investigating or defending
against such losses, claims, damages, judgments, fines or liabilities, and any
amounts expended in settlement of any claims (collectively, "Losses") to
which such Covered Person may become subject by reason of any act or omission
or alleged act or omission performed or omitted to be performed by such Covered
Person on behalf of the Company in connection with the business of the Company;
provided, that (i) such Covered Person acted in good faith and in a manner
believed by such Covered Person to be in, or not opposed to, the best interests
of the Company and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful, and (ii) such Covered Person's
conduct did not constitute fraud or willful misconduct, in either case as
determined by a final, nonappealable order of a court of competent
jurisdiction. In connection with the foregoing, the termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the Covered Person did not act in good faith or, with respect
to any criminal proceeding, had reasonable cause to believe that such Covered
Person's conduct was unlawful, or that the Covered Person's conduct constituted
fraud or willful misconduct.
(ii)
Reimbursement. The Company shall promptly reimburse (and/or
advance to the extent reasonably required) each Covered Person for reasonable
legal or other expenses (as incurred) of such Covered Person in connection with
investigating, preparing to defend or defending any claim, lawsuit or other
proceeding relating to any Losses for which such Covered Person may be
indemnified pursuant to this Section 6.02(c); provided, that if it is
finally judicially determined that such Covered Person is not entitled to the
indemnification provided by this Section 6.02(C), then such Covered
Person shall promptly reimburse the Company for any reimbursed or advanced
expenses.
(iii)
Entitlement to Indemnity. The indemnification provided by this Section
6.02(c) shall not be deemed exclusive of any other rights to
indemnification to which those seeking indemnification may be entitled under
any agreement or otherwise. The provisions of this Section 6.02(c) shall
continue to afford protection to each Covered Person regardless whether such
Covered Person remains in the position or capacity pursuant to which such
Covered Person became entitled to indemnification under this Section 6.02(c)
and shall inure to the benefit of the executors, administrators, and legal
representative of such Covered Person.
(iv)
Insurance. To the extent available on commercially reasonable
terms, the Company may purchase, at its expense, insurance to cover Losses
covered by the foregoing indemnification provisions and to otherwise cover
Losses for any breach or alleged breach by any Covered Person of such Covered
Person's duties in such amount and with such deductibles as the General Partner
may determine; provided, that the failure to obtain such insurance shall not
affect the right to indemnification of any Covered Person under the indemnification
provisions contained herein, including the right to be reimbursed or advanced
expenses or otherwise indemnified for Losses hereunder. If any Covered Person
recovers any amounts in respect of any Losses from any insurance coverage, then
such Covered Person shall, to the extent that such recovery is duplicative,
reimburse the Company for any amounts previously paid to such Covered Person by
the Company in respect of such Losses.
(v)
Funding of Indemnification Obligation. Any indemnification by the
Company pursuant to this Section 6.02(c) shall be provided out of and to
the extent of Company assets only, and no Partner shall have personal liability
on account thereof or shall be required to make additional capital
contributions to help satisfy such indemnification obligation.
(vi)
Savings Clause. If this Section 6.02(c) or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify and hold harmless
each Covered Person pursuant to this Section 6.02(c) to the fullest
extent permitted by any applicable portion of this Section 6.02(c) that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
(d)
Amendment. The provisions of this Section 6.02(c) shall be
a contract between the Company, on the one hand, and each Covered Person who
served in such capacity at any time while this section is in effect, on the
other hand, pursuant to which the Company and each such Covered Person intend
to be legally bound. No amendment, modification or repeal of this Section
6.02 that adversely affects the rights of a Covered Person to
indemnification for Losses incurred or relating to a state of facts existing
prior to such amendment, modification or repeal shall apply in such a way as to
eliminate or reduce such Covered Person's entitlement to indemnification for
such Losses without the Covered Person's prior written consent.
(e)
Survival. The provisions of this Section 6.02 shall
survive the dissolution, liquidation, winding up, and termination of the
Company.
6.03
Confidentiality. For as long as he, she, or it owns an interest
in the Company and at all times thereafter, no Limited Partner shall divulge to
any person or entity, or use for his or its own benefit or the benefit of any
person, any information of the Company of a confidential or proprietary nature,
including, but not limited to (i) financial information; (ii) designs, drawings,
plans, and specifications; (iii) the business methods, systems, or practices
used by the Company; and (iii) the identity of the Partners, customers, or
suppliers. The foregoing shall not apply to information that is in the public
domain or that a Limited Partner is required to disclose by legal process.
Article VII.
BANK ACCOUNTS; BOOKS OF ACCOUNT
7.01
Bank Accounts. Funds of the Company may be deposited in accounts
at banks or other institutions selected by the General Partner. Withdrawals
from any such account or accounts shall be made in the Company's name upon the
signature of such persons as the General Partner may designate. Funds in any
such account shall not be commingled with the funds of any Partner.
7.02
Books and Records of Account. The Company shall keep at its
principal offices books and records of account of the Company which shall
reflect a full and accurate record of each transaction of the Company.
7.03
Annual Financial Statements and Reports. Within a reasonable
period after the close of each fiscal year, the Company shall furnish to each Partner
with respect to such fiscal year (i) a statement showing in reasonable detail
the computation of the amount distributed under Section 4.01 or any
Authorizing Resolution, and the manner in which it was distributed (ii) a
balance sheet of the Company, (iii) a statement of income and expenses, and
(iv) such additional information as may be required by law. The financial
statements of the Company need not be audited by an independent certified
public accounting firm unless the General Partner so elects or the law so
requires.
7.04
Right of Inspection.
(a)
In General. If a Limited Partner wishes additional information or
to inspect the books and records of the Company for a bona fide purpose,
the following procedure shall be followed: (i) such Limited Partner shall
notify the General Partner, setting forth in reasonable detail the information
requested and the reason for the request; (ii) within sixty (60) days after
such a request, the General Partner shall respond to the request by either
providing the information requested or scheduling a date (not more than 90 days
after the initial request) for the Limited Partner to inspect the Company's
records; (iii) any inspection of the Company's records shall be at the sole
cost and expense of the requesting Limited Partner; and (iv) the requesting Limited
Partner shall reimburse the Company for any reasonable costs incurred by the
Company in responding to the Limited Partner's request and making information
available to the Limited Partner.
(b)
Bona Fide Purpose. The General Partner shall not be required to
respond to a request for information or to inspect the books and records of the
Company if the General Partner believes such request is made to harass the
Company or the General Partner, to seek confidential information about the
Company, or for any other purpose other than a bona fide purpose.
(c)
Representative. An inspection of the Company's books and records
may be conducted by an authorized representative of a Limited Partner, provided
such authorized representative is an attorney or a licensed certified public
accountant and is reasonably satisfactory to the General Partner.
(d)
Restrictions. The following restrictions shall apply to any
request for information or to inspect the books and records of the Company:
(i)
No Limited Partner shall have a right to a list of the Limited Partners
or any information regarding the Limited Partners.
(ii)
Before providing information or allowing a representative of a Limited
Partner to inspect the Company's records, the General Partner may require such representative
to execute a confidentiality agreement satisfactory to the General Partner.
(iii)
No Limited Partner shall have the right to any trade secrets of the
Company or any other information the General Partner deems highly sensitive and
confidential.
(iv)
No Limited Partner may review the books and records of the Company more
than once during any twelve (12) month period.
(v)
Any review of the Company's books and records shall be scheduled in a
manner to minimize disruption to the Company's business.
(vi)
A representative of the Company may be present at any inspection of the
Company's books and records.
(vii)
If more than one Limited Partner has asked to review the Company's books
and records, the General Partner may require the requesting Limited Partners to
consolidate their requests and appoint a single representative to conduct such
review on behalf of all requesting Limited Partners.
(viii)
The General Partner may impose additional reasonable restrictions for
the purpose of protecting the Company and the Partners.
Article VIII.
TRANSFERS OF SHARES
8.01
In General. Except as provided in Section 8.02, Section
8.03 or the terms of an Authorizing Resolution, Investor Shares may
generally be transferred without the consent of the Company or the General
Partner.
8.02
First Right of Refusal.
(a)
In General. In the event a Limited Partner (the "Selling LP")
receives an offer from a third party to acquire all or a portion of his, her,
or its Investor Shares (the "Transfer Shares"), then he, she, or it
shall notify the General Partner, specifying the Investor Shares to be
purchased, the purchase price, the approximate closing date, the form of
consideration, and such other terms and conditions of the proposed transaction
that have been agreed with the proposed purchaser (the "Sales Notice").
Within thirty (30) days after receipt of the Sales Notice the General Partner shall
notify the Selling LP whether the General Partner (or a person designated by
the General Partner) elects to purchase the entire Transfer Shares on the terms
set forth in the Sales Notice.
(b)
Special Rules. The following rules shall apply for purposes of this
Section 8.02:
(i)
If the General Partner elects not to purchase the Transfer Shares, or
fails to respond to the Sales Notice within the thirty (30) day period
described above, the Selling LP may proceed with the sale to the proposed transfer,
subject to the remaining terms of this Section 8.02.
(ii)
Subject to Section 8.02(b)(iv), if the General Partner elects to
purchase the Transfer Shares, it shall do so within thirty (30) days. If the
Company cannot for any reason pay for the Transfer Shares in the same form of
non-cash consideration, the Company may pay the cash value equivalent thereof.
(iii)
If the General Partner elects not to purchase the Transfer Shares, or
fails to respond to the Sales Notice within the thirty (30) day period
described above, and the Selling LP and the purchaser subsequently agree to a
reduction of the purchase price, a change in the consideration from cash or
readily tradeable securities to deferred payment obligations or nontradeable
securities, or any other material change to the terms set forth in the Sales
Notice, such agreement between the Selling LP and the purchaser shall be
treated as a new offer and shall again be subject to this section.
(iv)
If the General Partner elects to purchase the Transfer Shares in
accordance with this Section 8.02, such election shall have the same
binding effect as the then-current agreement between the Selling LP and the
proposed purchaser. Thus, for example, if the Selling LP and the purchaser have
entered into a non-binding letter of intent but have not entered into a binding
definitive agreement, the election of the General Partner shall have the effect
of a non-binding letter of intent with the Selling LP. Conversely, if the
Selling LP and the purchaser have entered into a binding definitive agreement,
the election of the General Partner shall have the effect of a binding
definitive agreement. If the Selling LP and the General Partner are deemed by
this Section 8.02(b)(iv) to have entered into only a non-binding letter
of intent, neither shall be bound to consummate a transaction if they are
unable to agree to the terms of a binding agreement.
8.03
Conditions of Transfer. A transfer of Investor Shares shall be
effective only if:
(a)
The transferring Limited Partner has notified the General Partner of the
proposed transfer at least thirty (30) business days in advance, describing the
terms and conditions of the proposed transfer and any other information
reasonably requested by the General Partner;
(b)
The transferee has executed a copy of this Agreement, agreeing to be
bound by all of its terms and conditions;
(c)
A fully executed and acknowledged written transfer agreement between the
transferring Limited Partner and the transferee has been filed with the
Company;
(d)
All costs and expenses incurred by the Company in connection with the
transfer are paid by the transferor to the Company, without regard to whether
the proposed transfer is consummated; and
(e)
The General Partner determines, and such determination is confirmed by
an opinion of counsel satisfactory to the General Partner stating, that (i) the
transfer does not violate the Securities Act or any applicable state
securities laws, (ii) the transfer will not require the Company or the General
Partner to register as an investment company under the Investment Company Act
of 1940, as amended (the "Investment Company Act"), (iii) the
transfer will not require any affiliate of the General Partner that is not registered
under the Investment Advisers Act of 1940, as amended, to register as an
investment adviser, (iv) the transfer would not pose a material risk that (A)
all or any portion of the assets of the Company would constitute "plan assets"
under the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
(B) the Company would be subject to the provisions of ERISA, section 4975 of
the Code or any applicable similar law, or (C) the General Partner would become
a fiduciary pursuant to ERISA or the applicable provisions of any similar law
or otherwise, and (v) the transfer will not violate the applicable laws of any
state or the applicable rules and regulations of any governmental
authority; provided, that the delivery of such opinion may be
waived, in whole or in part, at the sole discretion of the General Partner.
8.04
Admission of Transferee. Any permitted transferee of Investor Shares
shall be admitted to the Company as a Limited Partner on the date agreed by the
transferor, the transferee, and the General Partner.
8.05
Exempt Transfers. The following transactions shall be exempt from
the provisions of Section 8.02:
(a)
A transfer to or for the benefit of any spouse, child or grandchild of a
Limited Partner, or to a trust for their exclusive benefit
(b)
A transfer to any person in accordance with the Company's policy
attached hereto as Exhibit C;
(c)
Any transfer pursuant to an effective registration statement filed by
the Company under the Securities Act;
(d)
A transfer pursuant to Section 8.14;
(e)
Upon the dissolution of a Partner that is an entity, transfers to its
equity holders; or
(f)
The sale of all or substantially all of the Shares (including pursuant
to a merger or consolidation);
provided,
however, that in the case of a transfer pursuant to Section 8.05(a),
(b), (d) and (e), the transferred Investor Shares shall
remain subject to this Agreement.
8.06
Intentionally Omitted.
8.07
Other Transfers Void. Transfers in contravention of this section
shall be null, void and of no force or effect whatsoever, and the Partners
agree that any such transfer may and should be enjoined.
8.08
Death, Insolvency, Etc. Neither the death, disability,
bankruptcy, or insolvency of a Partner, nor the occurrence of any other
voluntary or involuntary event with respect to a Partner, shall give the
Company or any Partner the right to purchase such Partner's Shares, nor give such
Partner (or such Partner's heirs, assigns, or representatives) the right to
sell such Shares to the Company or any other Partner. Instead, such Partner or such
Partner's heirs, assigns, or legal representatives shall remain a Partner
subject to the terms and conditions of this Agreement.
8.09
Intentionally Omitted.
8.10
Drag-Along Right. In the event the General Partner approves a
sale or other disposition of all of the Shares, then, upon notice of the sale
or other disposition, each Partner shall execute such documents or instruments
as may be requested by the General Partner to effectuate such sale or other
disposition and shall otherwise cooperate with the General Partner. The
following rules shall apply to any such sale or other disposition under this Section
8.10: (i) each Limited Partner shall represent that he, she, or it owns his
or its Investor Shares free and clear of all liens and other encumbrances, that
he, she, or it has the power to enter into the transaction, and whether he,
she, or it is a U.S. person, but shall not be required to make any other
representations or warranties; (ii) each Limited Partner shall grant to the General
Partner a power of attorney to act on behalf of such Limited Partner in
connection with such sale or other disposition; and (iii) each Limited Partner
shall receive, as consideration for such sale or other disposition, the same
amount he, she, or it would have received had all or substantially all of the
assets of the Company been sold and the net proceeds distributed in liquidation
of the Company.
8.11
Waiver of Appraisal Rights. Each Partner hereby waives any
appraisal rights such Partner may otherwise have pursuant to 6 Del. C. § 17-212
or otherwise, as well as any "dissenter's rights.
8.12
Redemptions.
(a)
Based on ERISA Considerations. The General Partner may, at any
time, cause the Company to purchase all or any portion of the Investor Shares
owned by a Limited Partner whose assets are governed by Title I of the ERISA,
Code section 4975, or any similar Federal, State, or local law, if the General
Partner determines that all or any portion of the assets of the Company would,
in the absence of such purchase, more likely than not be treated as "plan assets"
or otherwise become subject to such laws.
(b)
Based on Other Bona Fide Business Reasons. The General Partner
may, at any time, cause the Company to purchase all of the Investor Shares
owned by a Limited Partner if the General Partner determines that (i) such Limited
Partner made a material misrepresentation to the Company; (ii) legal or
regulatory proceedings are commenced or threatened against the Company or any
of the Partners arising from or relating to the Investor Shares of such Limited
Partner; (iii) the General Partner believes that such Limited Partner's ownership
has caused or will cause the Company to violate any law or regulation; (iv)
such Limited Partner has violated any of his, her, or its obligations to the
Company or to the other Partners; or (ii) such Limited Partner is engaged in,
or has engaged in conduct (including but not limited to criminal conduct) that
(A) brings the Company, or threatens to bring the Company, into disrepute, or
(B) is adverse and fundamentally unfair to the interests of the Company or the
other Partners.
(c)
Purchase Price and Payment. Unless otherwise agreed in writing
between the selling Limited Partner and the Company, the price of Investor
Shares purchased and sold pursuant to this Section 8.12 shall be ninety
percent (90%) of the then-current value of such Investor Shares as determined
by the Company in accordance with its financial model as described in the
Offering Circular. The purchase price shall be paid by wire transfer or other
immediately available funds at closing, which shall be held within sixty (60)
days following written notice from the General Partner.
8.13
Withdrawal. A Limited Partner may withdraw from the Company by
giving at least ninety (90) days' notice to the General Partner. The
withdrawing Limited Partner shall be entitled to no distributions or payments
from Company on account of his, her, or its withdrawal, nor shall he, she, or
it be indemnified against liabilities of Company, unless otherwise provided
herein.. For purposes of this Section 8.13, an Limited Partner who
transfers Investor Shares pursuant to (i) a transfer permitted under Article
8, or (ii) an involuntary transfer by operation of law, shall not be
treated as thereby withdrawing from Company.
8.14
Pledge of Shares by the General Partner. The General
Partner may (but shall not be required to) pledge all or any portion of its
Common Shares and/or any Investor Shares held by the Limited Partners as
security for a loan made to the Company, and transfer such Common Shares and/or
Investor Shares to the lender in the event of a default under the loan.
Article IX.
DISSOLUTION AND LIQUIDATION
9.01
Dissolution. The Company shall be dissolved upon the first to
occur of the following:
(a)
Within twelve (12) months following the sale of all or substantially all
of the assets of the Company; or
(b)
The determination of the General Partner; or
(c)
The entry of a decree of a judicial dissolution pursuant to the Act.
9.02
Liquidation.
(a)
Generally. If the Company is dissolved, the Company's assets
shall be liquidated and no further business shall be conducted by the Company
except for such action as shall be necessary to wind-up its affairs and
distribute its assets to the Partners pursuant to the provisions of Sections
3.3 (with respect to any liquidating distribution consisting of operating cash
flow) and 3.4 (with respect to distributions consisting of net capital
proceeds) of Exhibit A and Exhibit B. Upon such dissolution, the General
Partner shall have full authority to wind-up the affairs of the Company and to
make final distribution as provided herein.
(b)
Distribution of Assets. After liquidation of the Company, the
assets of the Company shall be distributed as set forth in Article Two.
(c)
Distributions In Kind. The assets of the Company shall be
liquidated as promptly as possible so as to permit distributions in cash, but
such liquidation shall be made in an orderly manner so as to avoid undue losses
attendant upon liquidation. In the event that in the General Partner's opinion
complete liquidation of the assets of the Company within a reasonable period of
time proves impractical, assets of the Company other than cash may be
distributed to the Partner in kind but only after all cash and cash-equivalents
have first been distributed.
(d)
Statement of Account. Each Partner shall be furnished with a
statement prepared by the Company's accountants, which shall set forth the
assets and liabilities of the Company as of the date of complete liquidation.
9.03
Termination. Upon compliance with Section 9.02, the Company
shall cease to be such, and the General Partner shall execute, acknowledge and
cause to be filed with the Secretary of State of the State of Delaware a
certificate of cancellation of the Company. The provisions of this Agreement
shall remain in full force and effect during the period of winding up and until
the filing of such certificate of cancellation of the Company with the
Secretary of State of the State of Delaware.
Article X.
POWER OF ATTORNEY
10.01
In General. The General Partner shall at all times during the
term of the Company have a special and limited power of attorney as the
attorney-in-fact for each Limited Partner, with power and authority to act in
the name and on behalf of each such Limited Partner, to execute, acknowledge,
and swear to in the execution, acknowledgement and filing of documents which
are not inconsistent with the provisions of this Agreement and which may
include, by way of illustration but not by limitation, the following:
(a)
This Agreement and any amendment of this Agreement authorized under Section
11.01;
(b)
Any other instrument or document that may be required to be filed by the
Company under the laws of any state or by any governmental agency or which the General
Partner shall deem it advisable to file;
(c)
Any instrument or document that may be required to effect the
continuation of the Company, the admission of new Partners, or the dissolution
and termination of the Company; and
(d)
Any and all other instruments as the General Partner may deem necessary
or desirable to effect the purposes of this Agreement and carry out fully its
provisions.
10.02
Terms of Power of Attorney. The special and limited power of
attorney of the General Partner (i) is a special power of attorney coupled with
the interest of the General Partner in the Company, and its assets, is
irrevocable, shall survive the death, incapacity, termination or dissolution of
the granting Limited Partner, and is limited to those matters herein set forth;
(ii) may be exercised by the General Partner by and through one or more of the
officers of the General Partner for each of the Limited Partners by the
signature of the General Partner acting as attorney-in-fact for all of the Limited
Partners, together with a list of all Limited Partners executing such
instrument by their attorney-in-fact or by such other method as may be required
or requested in connection with the recording or filing of any instrument or
other document so executed; and (iii) shall survive an assignment by a Limited
Partner of all or any portion of his, her or its Investor Shares except that,
where the assignee of the Investor Shares owned by the Limited Partner has been
approved by the General Partner for admission to the Company, the special power
of attorney shall survive such assignment for the sole purpose of enabling the General
Partner to execute, acknowledge and file any instrument or document necessary
to effect such substitution.
10.03
Notice to Limited Partners. The General Partner shall promptly
furnish to each Limited Partner a copy of any amendment to this Agreement
executed by the Limited Partner pursuant to a power of attorney from such Limited
Partner.
Article XI.
AMENDMENTS
11.01
Amendments Not Requiring Consent. The General Partner may amend
this Agreement without the consent of any Limited Partner to effect:
(a)
The correction of typographical errors;
(b)
A change in the name of the Company, the location of the principal place
of business of the Company, the registered agent of the Company or the registered
office of the Company;
(c)
The admission, substitution, withdrawal, or removal of Partners in
accordance with this Agreement;
(d)
An amendment that cures ambiguities or inconsistencies in this
Agreement;
(e)
An amendment that adds to its own obligations or responsibilities;
(f)
A change in the fiscal year or taxable year of the Company and any other
changes that the General Partner determines to be necessary or appropriate as a
result of a change in the fiscal year or taxable year of the Company;
(g)
A change the General Partner determines to be necessary or appropriate
to prevent the Company from being treated as an "investment company" within the
meaning of the Investment Company Act;
(h)
A change to facilitate the trading of Shares, including changes required
by law or by the rules of a securities exchange;
(i)
A change the General Partner determines to be necessary or appropriate
to satisfy any requirements or guidelines contained in any opinion, directive,
order, ruling, or regulation of any federal or state agency or judicial
authority or contained in any Federal or State statute, including but not
limited to "no-action letters" issued by the Securities and Exchange
Commission;
(j)
A change that the General Partner determines to be necessary or
appropriate to prevent the Company from being subject to the ERISA;
(k)
A change the General determines to be necessary or appropriate to
reflect an investment by the Company in any corporation, partnership, joint
venture, limited liability company or other entity;
(l)
An amendment that conforms to the Offering Circular, as the same may be
amended;
(m)
Any amendments expressly permitted in this Agreement to be made by the General
Partner acting alone; or
(n)
Any other amendment that does not have, and could not reasonably be
expected to have, a material adverse effect on the Limited Partners.
11.02
Amendments Requiring Majority Consent. Any amendment that has, or
could reasonably be expected to have, a material adverse effect on the Limited
Partners, other than amendments described in Section 11.03, shall
require the consent of the General Partner and Limited Partners holding a
majority of the Investor Shares or, if an amendment materially and adversely
affects only one series or class of Investor Shares, then the Limited Partners holding
a majority of the Investor Shares of that series or class.
11.03
Amendments Requiring Unanimous Consent. The following amendments
shall require the consent of the General Partner and each affected Limited
Partner:
(a)
An amendment deleting or modifying any of the amendments already listed
in this Section 11.03;
(b)
An amendment that would require any Limited Partner to make additional
Capital Contributions; and
(c)
An amendment that would impose personal liability on any Limited
Partner.
11.04
Procedure for Obtaining Consent. If the General Partner proposes
to make an amendment to this Agreement that requires the consent of Limited
Partners, the General Partner shall notify each affected Limited Partner (who
may be all Limited Partners, or only Limited Partners holding a given series or
class of Investor Shares) in writing, specifying the proposed amendment and the
reason(s) why the General Partner believes the amendment is in the best
interest of the Company. At the written request of Limited Partners holding at
least twenty percent (20%) of the Investor Shares entitled to vote on the
amendment, the General Partner shall hold an in-person or electronic meeting (e.g.,
a webinar) to explain and discuss the amendment. Voting may be through paper or
electronic ballots. If the General Partner proposes an amendment that is not
approved by the Limited Partners within ninety (90) days from proposal, the General
Partner shall not again propose that amendment for at least six (6) months.
Article
XII.
MISCELLANEOUS
12.01
Notices. Any notice or document required or permitted to be given
under this Agreement may be given by a party or by its legal counsel and shall
be deemed to be given by electronic mail with transmission acknowledgment, to
the principal business address of the Company, if to the Company or the General
Partner, to the email address of a Limited Partner provided by such Limited
Partner, or such other address or addresses as the parties may designate from
time to time by notice satisfactory under this Section 12.01.
12.02
Electronic Delivery. Each Partner hereby agrees that all
communications with the Company, including all tax forms (if any), shall be via
electronic delivery.
12.03
Governing Law.
(a)
In General. This Agreement shall be governed by
the internal laws of Delaware without giving effect to the principles of
conflicts of laws. Each Partner hereby (i) consents to the personal
jurisdiction of the Delaware courts or the Federal courts located in or most
geographically convenient to Wilmington, Delaware, (ii) agrees that all
disputes arising from this Agreement shall be prosecuted in such courts, except
as provided in Section 5.06, (iii) agrees that any such court shall have
in personam jurisdiction over such Partner, (iv) consents to service of process
by notice sent by regular mail to the address on file with the Company and/or
by any means authorized by Delaware law, and (v) if such Partner is not
otherwise subject to service of process in Delaware, agrees to appoint and
maintain an agent in Delaware to accept service, and to notify the Company of
the name and address of such agent.
(b)
Exception. The exclusive forum selection provisions in Section
12.03(a) shall not apply to the extent prohibited by the Securities Act or
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(c)
Waiver of Jury Trial. EACH PARTNER ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTNER IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT. However, the
foregoing waiver of trial by jury does not apply to claims arising under the
Federal securities laws.
12.04
Signatures. This Agreement may be signed (i) in counterparts,
each of which shall be deemed to be a fully-executed original; and (ii)
electronically, e.g., via DocuSign. An original signature
transmitted by facsimile or email shall be deemed to be original for purposes
of this Agreement.
12.05
No Third Party Beneficiaries. Except as otherwise specifically
provided in this Agreement (including, without limitation, Section 12.10),
this Agreement is made for the sole benefit of the parties. Except as set forth
in Section 12.10, no other persons shall have any rights or remedies by
reason of this Agreement against any of the parties or shall be considered to
be third party beneficiaries of this Agreement in any way.
12.06
Binding Effect. This Agreement shall inure to the benefit of the
respective heirs, legal representatives and permitted assigns of each party,
and shall be binding upon the heirs, legal representatives, successors and
assigns of each party.
12.07
Titles and Captions. All article, section and paragraph titles
and captions contained in this Agreement are for convenience only and are not
deemed a part of the context hereof.
12.08
Pronouns and Plurals. All pronouns and any variations thereof are
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
12.09
Execution by Limited Partners. It is anticipated that this
Agreement will be executed by Limited Partners through the execution of an
Investment Agreement.
12.10
Legal Representation. Each Limited Partner hereby agrees and
acknowledges that: (a) ▇▇▇▇▇▇▇▇ & English, LLP ("▇▇▇▇▇▇▇▇ & English")
has been retained as legal counsel by the General Partner in connection with
the preparation of this Agreement and the General Partner and the transactions
described in the Offering Circular and in such capacity has provided legal
services to the Company and the General Partner; (b) ▇▇▇▇▇▇▇▇ & English is
not representing and will not represent the Limited Partners in connection with
this Agreement, the transaction described in the Offering Circular, any
offering of Investor Shares, the management and operation of the Company or any
dispute that may arise between the Limited Partners on the one hand and the Company
and/or the General Partner on the other hand (the "Company Legal Matters");
(c) each Limited Partner should, if it wishes counsel on a Company Legal
Matter, retain its own independent counsel with respect thereto and, except as
otherwise specifically provided by this Agreement, will pay all fees and
expenses of such independent counsel; and (d) each Limited Partner agrees that
▇▇▇▇▇▇▇▇ & English may represent the Company, the General Partner and/or
any of their affiliates in connection with any and all Company Legal Matters
that are or in the future may become adverse to one or more Limited Partners,
including disputes and litigation, and waives any potential or actual conflict
of interest, including the right to disqualify ▇▇▇▇▇▇▇▇ & English from such
representation, that could arise by virtue of the fact that a Limited Partner
is or becomes a client of ▇▇▇▇▇▇▇▇ & English.
12.11
Days. Any period of days mandated under this Agreement shall be
determined by reference to calendar days, not business days, except that any
payments, notices, or other performance falling due on a Saturday, Sunday, or
federal government holiday shall be considered timely if paid, given, or
performed on the next succeeding business day.
12.12
Relationship to Investment Agreement. In the case of a Limited
Partner, this Agreement governs such Limited Partnership's ownership of
Investor Shares and the operation of the Company, while the Investment
Agreement governs such Limited Partner's purchase of Investor Shares. In the
event of a conflict between the two agreements, this Agreement shall control.
12.13
Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to its subject matter and supersedes all prior
agreements and understandings.
Energea Global, LLC its General Partner
By _______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Manager
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Manager
By _______________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇, Manager
▇▇▇▇▇ ▇▇▇▇▇▇▇, Manager
Exhibit A
Class A Authorizing
Resolution
(See attached.)
Exhibit B
Reg D Authorizing
Resolution
(See attached.)
Exhibit C
Beneficiary Agreement
(See attached.)