AGREEMENT
OF
LIMITED PARTNERSHIP
OF
▇▇▇▇▇ & ▇▇▇▇ DISTRIBUTORS L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP, dated as of January 4,
1991, is entered into by and among ▇▇▇▇▇ & TANG, INC., a Delaware corporation,
and ▇▇▇▇▇ & TANG L.P., a Delaware limited partnership.
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated to the contrary, apply to the terms used in this Agreement.
"Affiliate" means, with respect to any Person, any other Person
that directly or indirectly controls, is controlled by, or is under common
control with the Person in question; provided, however, that, for purposes of
the restrictive provisions of Sections 7.5, 7.6, and 7.8, neither the MLP nor
any Operating Partnership nor any of their respective subsidiaries shall be
deemed to be Affiliates of the General Partner. As used herein, the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the
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management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Agreed Value" of any Contributed Property means the fair market
value of such property as of the time of contribution (or, in the case of
cash, the amount thereof), as determined by the General Partner using such
reasonable method of valuation as it may adopt.
"Agreement" means this agreement of limited partnership, as
amended or restated from time to time.
"Business Day" means any day other than a Saturday, a Sunday, or a
legal holiday recognized as such by the Government of the United States or the
State of New York or the District of Columbia.
"Capital Contribution" means any Contributed Property
which a Partner contributes to the Partnership.
"Certificate of Limited Partnership" means the Certificate of
Limited Partnership filed with the Secretary of State of the State of Delaware
as described in the first sentence of Section 2.5, as amended or restated from
time to time.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Contributed Property" means any cash, property or other
consideration (in such form as may be permitted under the Delaware Act)
contributed to the Partnership.
"Contributing Partner" means any Partner contributing
Contributed Property to the Partnership.
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"Delaware Act" means the Delaware Revised Uniform Limited
Partnership Act, as amended from time to time, and any successor to such Act.
"Designated Expenses" means all costs and expenses (direct or
indirect) incurred by the General Partner which are directly or indirectly
related to the formation, capitalization, business or activities of the
Partnership (including, without limitation, expenses, direct or indirect,
reasonably allocated to the General Partner by its Affiliates); provided,
however, that Designated Expenses shall not include any cost or expense for
which the General Partner is not entitled to be reimbursed by reason of the
proviso at the end of the Section 7.10(b).
"General Partner" means RTI, in its capacity as the general
partner of the Partnership, and any successor to RTI as such general partner.
"Indemnitee" means the General Partner, any Affiliate of the
General Partner, any Person who is or was a director, officer, employee or
agent of the General Partner or any such Affiliate, or any Person who is or
was serving at the request of the General Partner or any such Affiliate as a
director, officer, partner, trustee, employee or agent of another Person.
"Limited Partner" means the MLP, in its capacity as the limited
partner of the Partnership, and any successor to the MLP as such limited
partner.
"Liquidator" has the meaning specified in Section 12.3.
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"MLP" means ▇▇▇▇▇ & Tang L.P., a Delaware limited
partnership.
"MLP Agreement" means the agreement of limited partnership, dated
as of May 29, 1987, governing the rights and obligations of the partners of
the MLP.
"MLP General Partner" means RTI, in its capacity as the general
partner of the MLP, and any successor to RTI as such general partner.
"Net Agreed Value" means with respect to any Contributed Property,
the Agreed Value of such Contributed Property reduced by any indebtedness
either assumed by the Partnership upon contribution of such Contributed
Property or to which such Contributed Property is subject when contributed.
"Operating Partnership" means any limited partnership through
which the MLP may conduct any and all of its activities, the general partner
of which shall be RTI or the general partner of the MLP and the limited
partner of which shall be the MLP.
"Opinion of Counsel" means a written opinion of counsel (who may
be regular counsel of the General Partner or any of its Affiliates) acceptable
to the General Partner.
"Partner" means the General Partner or the Limited
Partner.
"Partnership" means ▇▇▇▇▇ & ▇▇▇▇ Distributors L.P., a Delaware
limited partnership.
"Partnership Interest" means a general partner's or
limited partner's interest in the Partnership.
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"Person" means an individual, a corporation, a
partnership, a trust, an unincorporated organization, an
association or any other entity.
"RTI" means ▇▇▇▇▇ & Tang, Inc.
"RTI Contributed Property" means any cash, property or other
consideration (in such form as may be permitted under the Delaware Act)
contributed to the Partnership by RTI.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor to such statute.
References herein to "States" include, except as the context may
otherwise require, the State of Delaware.
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 Formation. Subject to the provisions of this
Agreement, the General Partner and the Limited Partner have formed the
Partnership as a limited partnership pursuant to the provisions of the
Delaware Act. The General Partner and the Limited Partner hereby enter into
this Agreement to set forth the rights and obligations of the Partners and
certain matters related thereto. Except as expressly provided herein to the
contrary, the rights and obligations of the Partners and the administration,
dissolution and termination of the Partnership shall be governed by the
Delaware Act.
2.2 Name. The name of the Partnership shall be, and
the business of the Partnership shall be conducted under the name
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of, "▇▇▇▇▇ & ▇▇▇▇ Distributors L.P."; provided, however, that (a) the
Partnership's business may be conducted under any other name or names deemed
advisable by the General Partner, (b) the General Partner in its sole
discretion may change the name of the Partnership at any time and from time to
time and (c) the name under which the Partnership conducts business shall
include "Ltd." or "Limited Partnership" (or similar words or letters) where
necessary for purposes of maintaining the limited liability status of the
Limited Partner or otherwise complying with the laws of any jurisdiction that
so requires.
2.3 Principal Office; Registered Office. The principal office of
the Partnership shall be ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other
place as the General Partner may from time to time designate. The Partnership
may maintain offices at such other places as the General Partner deems
advisable.
2.4 Term. The Partnership shall continue in existence until the
close of Partnership business on December 31, 2086 or until the earlier
termination of the Partnership in accordance with the provisions of Article
XII.
2.5 Organizational Certificate. A Certificate of Limited
Partnership of the Partnership has been filed with the Secretary of State of
Delaware as required by the Delaware Act. The General Partner shall cause to
be filed such other certificates or documents as may be required for the
formation, operation and qualification of a limited partnership in Delaware
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and any other state in which the Partnership may elect to do business. The
General Partner shall thereafter file any necessary amendments to the
Certificate of Limited Partnership and any such other certificates and
documents and do all things requisite to the maintenance of the Partnership as
a limited partnership (or as a partnership in which the Limited Partner has
limited liability) under the laws of Delaware and any state or jurisdiction in
which the Partnership may elect to do business.
2.6 Partnership Interests. Effective as of the date
hereof, the Limited Partner has a 99% Partnership Interest and
the General Partner has a 1% Partnership Interest.
ARTICLE III
PURPOSE
3.1 Purpose. The purpose and business of the Partnership shall be
to engage in any lawful activity for which limited partnerships shall be
organized under the Delaware Act.
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Capital Contributions. (a) Prior to the date hereof, the
Limited Partner contributed to the Partnership certain assets necessary to
conduct the business of the Partnership, and the General Partner contributed
to the Partnership an amount equal to 1/99th of the Net Agreed Value of the
Capital Contribution then being made by the Limited Partner.
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(b) Whenever a Partner makes a Capital Contribution (other than
Capital Contributions required by Section 4.1 (a)), the other Partner shall
contribute to the Partnership Contributed Property such that the Net Agreed
Value of the Capital Contribution then being made by the General Partner is
equal to 1/99th of the Net Agreed Value of the Capital Contribution then being
made by the Limited Partner.
4.2 No Preemptive Rights. No Partner shall have any
preemptive right with respect to the issuance or sale of
securities that may be issued by the Partnership.
4.3 No Interest. No interest shall be paid by the
Partnership on Capital Contributions.
4.4 Loans from Partners. Loans or other advances by a Partner to
or for the account of the Partnership shall not be considered Capital
Contributions.
ARTICLE V
DISTRIBUTIONS
5.1 Distributions. From time to time, not less often then
quarterly, the General Partner shall review the Partnership's accounts to
determine whether distributions are appropriate. The General Partner may make
such cash distributions as it, in its sole discretion, may determine, without
being limited to current or accumulated income or gains, from any Partnership
funds, including, without limitation, Partnership revenues, Capital
Contributions or borrowed funds.
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In its sole discretion, the General Partner may also distribute to the
Partners other Partnership property, or securities of the Partnership or other
entities.
All distributions shall be made concurrently to both Partners and
shall be made 99% to the Limited Partner and 1% to the General Partner.
Amounts paid pursuant to Section 7.4 shall not be deemed to be
distributions for purpose of this Agreement.
ARTICLE VI
INCOME TAX MATTERS
6.1 Tax Allocations. (a) For federal income tax
purposes, each item of income, gain, loss, deduction and credit
of the Partnership shall be allocated 99% to the Limited Partner
and 1% to the General Partner.
6.2 Preparation of Tax Returns. The General Partner shall arrange
for the preparation and timely filing of all returns of Partnership income,
gains, losses, deductions, credits and other items necessary for federal and
state income tax purposes and shall use all reasonable efforts to furnish to
the Limited Partner within 90 days after the close of the taxable year the tax
information reasonably required for federal and state income tax reporting
purposes. The classification, realization and recognition of income, gains,
losses, deductions, credits and other items shall be on the accrual method of
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accounting for federal income tax purposes, unless the General Partner shall
determine otherwise in its sole discretion.
6.3 Tax Elections. Except as otherwise provided
herein, the General Partner shall, in its sole discretion,
determine whether to make any available election.
6.4 Tax Controversies. Subject to the provisions hereof, the
General Partner is designated as the Tax Matters Partner (as defined in
Section 6231 of the Code) and is authorized and required to represent the
Partnership (at the Partnership's expense) in connection with all examinations
of the Partnership's affairs by tax authorities, including resulting
administrative and judicial proceedings, and to expend Partnership funds for
professional services and costs associated therewith. The Limited Partner
agrees to cooperate with the General Partner and to do or refrain from doing
any and all things reasonably required by the General Partner to conduct such
proceedings.
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS;
INDEMNIFICATION
7.1 Powers of General Partner. Except as otherwise
expressly provided in this Agreement, all powers to control and manage the
business and affairs of the Partnership shall be exclusively vested in the
General Partner, and the Limited
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Partner shall not have any power to control or manage the business and affairs
of the Partnership.
In addition to the powers now or hereafter granted a general
partner of a limited partnership under applicable law or which are granted to
the General Partner under any other provisions of this Agreement, the General
Partner is hereby authorized and empowered, in the name of and on behalf of
the Partnership, to do and perform any and all acts and things which it deems
appropriate or necessary in the conduct of the business and affairs of the
Partnership, including, without limitation, the following:
(a) to lend or borrow money, to assume, guarantee or otherwise
become liable for indebtedness and other liabilities and to issue evidences of
indebtedness;
(b) to buy, lease (as lessor or lessee), sell, mortgage, encumber
or otherwise acquire or dispose of any or all of the assets of the Partnership
(subject to the provisions of Article XIV);
(c) to own, use and invest the assets of the
Partnership;
(d) to purchase or sell products, services and
supplies;
(e) to make tax, regulatory or other filings, and to render
periodic and other reports, to governmental agencies or bodies having
jurisdiction over the assets or business of the Partnership;
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(f) to open, maintain and close bank accounts and to
draw checks and other orders for the payment of money;
(g) to negotiate, execute and perform any contracts,
conveyances or other instruments;
(h) to distribute Partnership cash;
(i) to utilize the services of officers and employees
of the General Partner or of any other Persons and to select and
dismiss employees (if any) and outside attorneys, accountants,
consultants and contractors;
(j) to maintain insurance for the benefit of the
Partnership and the Partners;
(k) to form, participate in or contribute or loan cash or property
to limited or general partnerships, joint ventures, corporations or similar
arrangements;
(l) to expand the business activities in which the
Partnership is engaged or engage in new business activities by
acquisition or internal development; and
(m) to conduct litigation and incur legal expenses and otherwise
deal with or settle claims or disputes; in each case at such times and upon
such terms and conditions as the General Partner deems appropriate or
necessary, and subject to any express restrictions contained elsewhere in this
Agreement.
7.2 Duties of General Partner. The General Partner
shall manage the business and affairs of the Partnership in the
manner the General Partner deems appropriate or necessary.
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Without limiting the generality of the foregoing, the General Partner's duties
shall include the following:
(a) to take possession of the assets of the
Partnership;
(b) to staff and operate the business of the
Partnership with the officers and employees of the General
Partner or of other Persons;
(c) to render or cause to be rendered technical services and
perform or cause to be performed financial, accounting, logistical and other
administrative functions for the Partnership;
(d) to render such reports and make such periodic and other
filings as may be required under applicable federal, state and local laws,
rules and regulations;
(e) to provide or cause to be provided purchasing,
procurement, repair and other services for the Partnership; and
(f) to conduct the business of the Partnership in accordance with
this Agreement and all applicable laws, rules and regulations; in each case in
such a manner as the General Partner deems appropriate or necessary.
7.3 Reliance by Third Parties. Notwithstanding anything to the
contrary in this Agreement, any Person dealing with the Partnership shall be
entitled to assume that the General Partner has full power and authority to
encumber, sell or otherwise use in any manner any and all assets of the
Partnership
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and to enter into any contracts on behalf of the Partnership, and such Person
shall be entitled to deal with the General Partner as if it were the
Partnership's sole party in interest, both legally and beneficially. The
Limited Partner hereby waives any and all defenses or other remedies which may
be available against such Person to contest, negate or disaffirm any action of
the General Partner in connection with any such dealing. In no event shall any
Person dealing with the General Partner or its representatives be obligated to
ascertain that the terms of this Agreement have been complied with or to
inquire into the necessity or expedience of any act or action of the General
Partner or its representatives. Each and every certificate, document or other
instrument executed on behalf of the Partnership by the General Partner or its
representatives shall be conclusive evidence in favor of any and every Person
relying thereon or claiming thereunder that (a) at the time of the execution
and delivery of such certificate, document or instrument, this Agreement was
in full force and effect, (b) the Person executing and delivering such
certificate, document or instrument was duly authorized and empowered to do so
for and on behalf of the Partnership and (c) such certificate, document or
instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
7.4 Compensation and Reimbursement of the General
Partner. (a) Except as provided in this Section 7.4 or elsewhere
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in this Agreement, or any other agreement contemplated or permitted hereby or
thereby, the General Partner shall not be compensated for its services as
General Partner to the Partnership.
(b) The General Partner shall be promptly reimbursed for all
Designated Expenses, in addition to any reimbursement as a result of
indemnification in accordance with Section 7.10. The General Partner shall
determine such Designated Expenses in any reasonable manner determined by it.
(c) The General Partner may propose and adopt without the approval
of the Limited Partner fringe benefit plans, including, without limitation,
plans comparable to those that cover employees employed by the MLP and plans
involving the issuance of units of partnership interest, for the benefit of
employees of the Partners, the Partnership, or any of their respective
Affiliates, in respect of services performed, or obligated to be performed,
directly or indirectly, for the benefit of the Partnership.
7.5 Partnership Funds. The funds of the Partnership shall be
deposited in such account or accounts as shall be designated by the General
Partner, and shall not be commingled with the funds of the General Partner or
any of its Affiliates. All withdrawals from or charges against such accounts
shall be made by the General Partner or by its agents, which agents may be
Affiliates of the General Partner. Funds of the Partnership may be invested as
determined by the General Partner.
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7.6 Outside Activities; Contracts with Affiliates; Loans to or
from Affiliates. (a) The General Partner shall not have any business interests
or engage in any business activities except for those relating to the
Partnership, the MLP or any Operating Partnership, provided that the General
Partner shall be allowed to manage its own passive investments and the
investments of an RTI benefit plan, if any.
(b) Any Affiliate of the General Partner and any director,
officer, partner or employee of the General Partner or any of its Affiliates
shall be entitled to and may have business interests and engage in business
activities in addition to those relating to the Partnership, including
business interests and activities in direct competition with the Partnership,
for their own account and for the account of others, without having or
incurring any obligation to offer any interest in such businesses or
activities to the Partnership, or either Partner. Neither the Partnership nor
either of the Partners shall have any rights by virtue of this Agreement or
the partnership relationship governed hereby in any such business interests.
(c) The Limited Partner hereby agrees that the General Partner is
authorized to execute, deliver and perform any other agreements, acts,
transactions and matters contemplated hereby on behalf of the Partnership
without any further approval or vote of the Limited Partner, notwithstanding
any other provision of this Agreement.
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(d) Subject to the provisions of Section 7.4(a), the General
Partner and its Affiliates may enter into contracts with, or render services
to, the Partnership provided that such contracts or services are on terms that
are fair and reasonable to the Partnership.
(e) Neither the General Partner nor any of its Affiliates shall
sell, transfer or convey property to, or purchase property from, the
Partnership, directly or indirectly, except pursuant to transactions that are
fair and reasonable to the Partnership.
(f) The General Partner or any of its Affiliates may lend to the
Partnership funds needed by the Partnership for such periods of time as the
General Partner may determine; provided, however, that the General Partner or
an Affiliate may not charge the Partnership interest greater than the rate
(including points or other financing charges or fees) that would be charged to
the Partnership by unrelated lenders on comparable loans. The Partnership
shall reimburse the General Partner or its Affiliate, as the case may be, for
any costs incurred by the General Partner or Affiliate in connection with the
borrowing of funds obtained by such General Partner or Affiliate and loaned to
the Partnership.
(g) The Partnership may lend funds to the General Partner or any
of its Affiliates; provided, however, that the Partnership may not lend funds
to the General Partner or an Affiliate unless such funds consist of funds
available after
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provision for working capital and such reserves as the General Partner deems
appropriate and such loans shall bear interest at the rate (including points
or other financing charges or fees) that the General Partner would be charged
by unrelated lenders on comparable loans.
7.7 Tax Basis and Value Determinations. To the extent that the
General Partner is required pursuant to the provisions of this Agreement to
establish fair market values or allocate amounts realized, tax basis, Agreed
Values or Net Agreed Values, the General Partner shall establish such values
and make such allocations in a manner that is reasonable and fair to the
Limited Partner, taking into account all applicable laws, governmental
regulations, rulings and decisions. The General Partner may, in its sole
discretion, modify or revise such allocations in order to comply with such
laws, governmental regulations, rulings or decisions or to the extent it
otherwise deems such modification or revision appropriate or necessary. The
General Partner is authorized, to the extent deemed by it to be appropriate or
necessary, to utilize the services of an independent appraiser in establishing
such values or allocations and the General Partner shall in such cases be
entitled to rely on the values or allocations established by such independent
appraiser.
7.8 Resolution of Conflicts of Interest; Standard of
Care. (a) Unless otherwise expressly provided in this Agreement
or any other agreement contemplated hereby, (i) whenever a
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conflict of interest exists or arises between the General Partner or any of
its Affiliates, on the one hand, and the Partnership or the Limited Partner,
on the other hand, or (ii) whenever this Agreement or any other agreement
contemplated hereby provides that the General Partner or any of its Affiliates
shall act in a manner which is, or provides terms which are, fair and/or
reasonable to the Partnership, the MLP, any Operating Partnership or the
Limited Partner, the General Partner or such Affiliate shall resolve such
conflict of interest, take such action or provide such terms, considering, in
each case, the relative interests of each party to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting or engineering practices or principles, and in
the absence of bad faith by the General Partner or such Affiliate, shall not
constitute a breach of this Agreement or any other agreement contemplated
hereby or a breach of any standard of care or duty imposed hereby or under the
Delaware Act or any other applicable law, rule or regulation.
(b) Whenever this Agreement or any other agreement contemplated
hereby provides that the General Partner or any of its Affiliates is permitted
or required to make a decision (i) in its "discretion" or under a grant of
similar authority or latitude, the General Partner or such Affiliate shall be
entitled, to the extent permitted by applicable law, to consider only such
interests and factors as it desires and shall have no
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duty or obligation to give any consideration to any interest of or factors
affecting the Partnership or the Limited Partner, or (ii) in its "good faith"
or under another express standard, the General Partner or such Affiliate shall
act under such express standard and, except as required by applicable law,
shall not be subject to any other or different standards imposed by this
Agreement, any other agreement contemplated hereby or applicable law.
7.9 Other Matters Concerning the General Partner. (a) The General
Partner may rely and shall be protected in acting or refraining from acting
upon any certificate, document or other instrument believed by it to be
genuine and to have been signed or presented by the proper party or parties.
(b) The General Partner may consult with legal counsel,
accountants, appraisers, management consultants, investment bankers, and other
consultants and advisors selected by it and any opinion or advice of any such
Person as to matters which the General Partner believes to be within such
Person's professional or expert competence shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by the General Partner hereunder in good faith and in accordance with
such opinion or advice.
(c) The General Partner may exercise any of the powers granted to
it by this Agreement and perform any of the duties imposed upon it hereunder
either directly or by or through its agents, and the General Partner shall not
be responsible for any
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misconduct or negligence on the part of any such agent appointed by the
General Partner in good faith.
7.10 Limited Liability; Indemnification. (a) Notwith-standing
anything to the contrary in this Agreement, and except to the extent required
by applicable law, no Indemnitee shall be liable to the Partnership or any
Partner for any action taken or omitted to be taken by such Indemnitee,
provided that such Indemnitee acted in good faith and such action or omission
does not involve the gross negligence or willful misconduct of such
Indemnitee. 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 an Indemnitee did
not act in good faith or that an action or omission involves gross negligence
or willful misconduct.
(b) The Partnership shall, to the extent permitted by applicable
law, indemnify each Indemnitee against expenses (including legal fees and
expenses), judgments, fines and amounts paid in settlement, actually and
reasonably incurred by such Indemnitee, in connection with any threatened,
pending or completed claim, demand, action, suit or proceeding to which such
Indemnitee was or is a party or is threatened to be made a party, by reason of
(i) such Indemnitee's status as a General Partner, any Affiliate of the
General Partner, any Person who is or was a director, officer, employee or
agent of the General Partner or any such Affiliate, or any Person who is or
was serving at the
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request of the General Partner or any such Affiliate as a director, officer,
partner, trustee, employee or agent of another Person or (ii) any action taken
or omitted to be taken by such Indemnitee in any capacity referred to in
clause (i) of this Section 7.10(b), relating to this Agreement or the
property, business, affairs or management of the Partnership, the MLP, or any
Operating Partnership (provided the Indemnitee acted in good faith and the act
or omission which is the basis of such claim, demand, action, suit or
proceeding does not involve the gross negligence or willful misconduct of such
Indemnitee).
(c) Expenses (including legal fees and expenses) incurred in
defending any claim, demand, action, suit or proceeding subject to Section
7.10(b) shall be paid by the Partnership in advance of the final disposition
of such claim, demand, action, suit or proceeding upon receipt of an
undertaking (which need not be secured) by or on behalf of the Indemnitee to
repay such amount if it shall ultimately be determined, as permitted by the
Delaware Act or other applicable law, that the Indemnitee is not entitled to
be indemnified by the Partnership as authorized hereunder.
(d) The indemnification provided by Section 7.10(b) shall be in
addition to any other rights to which an Indemnitee may be entitled, and shall
continue as to an Indemnitee who has ceased to serve in a capacity for which
the Indemnitee is entitled to indemnification and shall inure to the benefit
of the
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heirs, successors, assigns, administrators and personal
representatives of the Indemnitee.
(e) To the extent commercially reasonable, the Partnership shall
purchase and maintain insurance on behalf of the Indemnitees against any
liability which may be asserted against or expense which may be incurred by an
Indemnitee in connection with the Partnership's activities, whether or not the
Partnership would have the power to indemnify an Indemnitee against such
liability under the provisions of this Agreement.
(f) An Indemnitee shall not be denied indemnification in whole or
in part under Section 7.10(b) because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement.
(g) The provisions of this Section 7.10 are for the benefit of the
Indemnitees and the heirs, successors, assigns, administrators and personal
representatives of the Indemnitees and shall not be deemed to create any
rights for the benefit of any other Persons.
ARTICLE VIII
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
8.1 Limitation of Liability. The Limited Partner
shall have no liability under this Agreement (including, without limitation,
liability under Section 7.10) except as provided in Section 4.1.
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8.2 Management of Business. The Limited Partner shall not take
part in the operation, management or control (within the meaning of the
Delaware Act) of the Partnership's business, transact any business in the
Partnership's name or have the power to sign documents for or otherwise bind
the Partnership.
8.3 Outside Activities. The Limited Partner shall be entitled to
and may have business interests and engage in business activities in addition
to those relating to the Partnership, including business interests and
activities in direct competition with the Partnership. Neither the Partnership
nor the General Partner shall have any rights by virtue of this Agreement or
the partnership relationship created hereby in any business ventures of the
Limited Partner.
8.4 Return of Capital. The Limited Partner shall not be entitled
to the withdrawal or return of his Capital Contribution, except to the extent,
if any, that distributions made pursuant to this Agreement or upon termination
of the Partnership may be considered as such by law and then only to the
extent provided for in this Agreement.
8.5 Rights of Limited Partners Relating to the Partnership. In
addition to other rights provided by this Agreement or by applicable law, the
Limited Partner shall have all rights of a limited partner pursuant to the
Delaware Act.
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ARTICLE IX
BOOKS, RECORDS AND ACCOUNTING
9.1 Books, Records and Accounting. The General
Partner shall keep or cause to be kept books and records with respect to the
Partnership's business, which books and records shall at all times be kept at
the principal office of the Partnership. Any books and records maintained by
the Partnership in the regular course of its business, including books of
account and records of Partnership proceedings, may be kept on, or be in the
form of, punch cards, disks, magnetic tape, photographs, micrographics or any
other information storage device, provided that the records so kept are
convertible into clearly legible written form within a reasonable period of
time. The books of the Partnership shall be maintained, for financial
reporting purposes, on the accrual basis, or on a cash basis adjusted
periodically to an accrual basis, as the General Partner shall determine in
its sole discretion, in accordance with generally accepted accounting
principles and applicable law.
9.2 Fiscal Year. The fiscal year of the Partnership for financial
reporting purposes shall be the calendar year, unless the General Partner
shall determine otherwise in its sole discretion.
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ARTICLE X
TRANSFER OF PARTNERSHIP INTERESTS; SUCCESSOR PARTNERS
10.1 Transfer of Partnership Interests. Neither
Partner may transfer any of its Partnership Interest unless (a) all of its
Partnership Interest is being transferred and the transferee assumes all of
the rights and obligations of such Partner hereunder, (b) the transfer is to
an Affiliate of such Partner or is in connection with the Partner's merger or
consolidation with, or a transfer of all or substantially all of a Partner's
assets to, another Person, or the transfer is approved by the other Partner
and (c) the Partnership receives an Opinion of Counsel that (i) such transfer
would not result in the loss of limited liability of the Limited Partner or
cause the Partnership or the MLP or any Operating Partnership to be treated as
an association taxable as a corporation for federal income tax purposes.
10.2 Successor Partners. Any Person becoming a
successor General Partner pursuant to Section 11.1 or the proviso
to Section 12.1 or the transferee of the entire Partnership
Interest of a Partner pursuant to Section 10.1 shall be admitted
to the Partnership as a successor Partner, effective as of the
date an amendment or restatement of the Certificate of Limited
Partnership is filed with the Secretary of the State of Delaware
effecting such substitution; provided, however, that no such
successor shall be so admitted until it has agreed in writing to
assume that former Partner's obligations hereunder. This
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Agreement and the Certificate of Limited Partnership shall be amended as
appropriate to reflect the termination of the former Partner and the admission
of the successor Partner.
ARTICLE XI
REMOVAL OF THE GENERAL PARTNER
11.1 Removal of the General Partner. The removal of
the MLP General Partner from the MLP shall also constitute the removal of the
General Partner from the Partnership, effective as of the date on which the
MLP General Partner's removal is effective. The Person approved as successor
MLP General Partner (or its designated Affiliate) shall become the successor
General Partner.
11.2 Sale of Former General Partner's Interest. If a successor
General Partner is approved pursuant to Section 11.1 or 12.2 or the proviso to
Section 12.1, such successor shall purchase from the former General Partner
and the former General Partner shall sell to such successor, the Partnership
Interest of the former General Partner for an amount in cash equal to the fair
market value thereof, determined as of the date of the departure of the former
General Partner. Such fair market value shall be determined by agreement
between the former General Partner and its successor or, failing agreement
within 30 days after the date the successor General Partner is so admitted, by
a firm of independent appraisers jointly selected by the former General
Partner and its successor (or, if the former General
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Partner and its successor cannot agree on the selection of such a firm within
45 days after the date the successor General Partner is so admitted, by a firm
of independent appraisers selected by two firms, one of which will be selected
by the former General Partner and the other of which will be selected by the
successor).
ARTICLE XII
DISSOLUTION AND LIQUIDATION
12.1 Dissolution. The Partnership shall be dissolved,
and its affairs shall be wound up, upon:
(a) expiration of its term as provided in
section 2.4;
(b) bankruptcy or dissolution of the General Partner, or any
other event that results in the General Partner ceasing to be a general
partner in the Partnership (other than by reason of removal pursuant to
Section 11.1 or a transfer pursuant to Section 10.1); or
(c) an election by the General Partner to
dissolve the Partnership;
provided, however, that the Partnership shall not be dissolved upon an event
described in Section 12.1(b) if, within 90 days of such event, the Limited
Partner agrees in writing to continue the business of the Partnership and to
the appointment of a successor General Partner.
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For purposes of this Section 12.1, bankruptcy of the General
Partner shall be deemed to have occurred when (i) it commences a voluntary
proceeding seeking liquidation, reorganization or other relief under any
bankruptcy, insolvency or other similar law now or hereafter in effect, (ii)
it seeks, consents to or acquiesces in the appointment of a trustee, receiver
or liquidator for it or for all or any substantial part of its properties,
(iii) it is adjudged a bankrupt or insolvent, or has entered against it a
final and nonappealable order for relief, under any bankruptcy, insolvency or
similar law now or hereafter in effect, (iv) it executes and delivers a
general assignment for the benefit of its creditors, (v) it files an answer or
other pleading admitting or failing to contest the material allegations of a
petition filed against it in any involuntary proceeding of the nature
described in clause (i) above, or (vi) (1) any involuntary proceeding of the
nature described in clause (i) above has not been dismissed 120 days after the
commencement thereof or (2) the appointment without its consent or
acquiescence of a trustee, receiver or liquidator for it or for all or any
substantial part of its properties has not been vacated or stayed within 90
days of such appointment, or (3) such appointment has been stayed but is not
vacated within 90 days after the expiration of any such stay.
12.2 Reconstitution. Upon dissolution of the
Partnership in accordance with Section 12.1(b), and a failure of
all Partners to agree to continue the business of the Partnership
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and to the appointment of a successor General Partner as provided in the
proviso to Section 12.1, then within 180 days after the event described in
Section 12.1(b), the remaining Partners may elect to reconstitute the
Partnership and continue its business by forming a new partnership on terms
identical to those set forth in this Agreement and having as a general partner
a Person approved by such Partners. Upon any such election by such Partners,
all partners shall be bound thereby and shall be deemed to have consented
thereto. Unless such an election is made within such 180-day period, the
Partnership shall conduct only activities necessary to wind up its affairs. If
such an election is made within such 180-day period, then (a) the
reconstituted partnership shall continue until the end of the term set forth
in Section 2.4 unless earlier dissolved in accordance with this Article XII
and (b) all necessary steps shall be taken to cancel this Agreement and the
Certificate of Limited Partnership and to enter into a new partnership
agreement and certificate of limited partnership; provided that the right to
reconstitute and to continue the business of the Partnership shall not exist
and may not be exercised unless the Partnership received an Opinion of Counsel
that (i) the exercise of the right would not result in the loss of limited
liability of the Limited Partner and (ii) neither the Partnership, the
reconstituted partnership, the MLP nor any Operating Partnership would be
treated as an association taxable as a corporation for federal income tax
purposes.
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12.3 Liquidation. Upon dissolution of the Partnership, unless the
Partnership is reconstituted pursuant to Section 12.2, the General Partner or,
in the event the General Partner has been removed or dissolved or become
bankrupt (as defined in section 12.1), a liquidator or liquidating committee
approved by the Limited Partner shall be the liquidator of the Partnership
(the "Liquidator"). The Liquidator (if other than the General Partner) shall
be entitled to receive such compensation for its services as may be approved
by the Limited Partner. The Liquidator shall agree not to resign at any time
without 15 days' prior written notice and (if other than the General Partner)
may be removed at any time, with or without cause, by notice of removal
approved by the Limited Partner. Upon dissolution, resignation or removal of
the Liquidator, a successor and substitute Liquidator (who shall have and
succeed to all rights, powers and obligations of the original Liquidator)
shall, within 30 days thereafter, be approved by the Limited Partner. Except
as expressly provided in this Article XII, the Liquidator approved in the
manner provided herein shall have and may exercise, without further
authorization or approval of any of the parties hereto, all of the powers
conferred upon the General Partner under the terms of this Agreement (but
subject to all of the applicable limitations, contractual and otherwise, upon
the exercise of such powers, other than the restrictions set forth in Article
XIV) to the extent appropriate or necessary in the good faith judgment of the
Liquidator to carry out the duties and
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functions of the Liquidator hereunder for and during such period of time as
shall be reasonably required in the good faith judgment of the Liquidator to
complete the winding-up and liquidation of the Partnership as provided for
herein. The Liquidator shall liquidate the assets of the Partnership and apply
and distribute the proceeds of such liquidation in the following order of
priority, unless otherwise required by mandatory provisions of applicable law:
(a) to creditors of the Partnership (including
Partners); and
(b) to the Partners, 99% to the Limited Partner
and 1% to the General Partner;
provided, however, that the Liquidator may place in escrow a reserve of cash
or other assets of the Partnership for contingent liabilities in an amount
determined by the Liquidator to be appropriate for such purposes.
12.4 Distribution in Kind. Notwithstanding the provisions of
Section 12.3 requiring the liquidation of the assets of the Partnership, but
subject to the order of priorities set forth therein, if on dissolution of the
Partnership the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical or would cause undue loss to the
Partners, the Liquidator may, in its sole discretion, defer for a reasonable
time the liquidation of any assets except those necessary to satisfy
liabilities of the Partnership and may, in its sole discretion, distribute to
the
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Partners, or to specific classes of Partners, as tenants in common, in lieu of
cash, and as their interests may appear in accordance with the provisions of
Section 12.3(b), undivided interests in such Partnership assets as the
Liquidator deems not suitable for liquidation. Any distributions in kind shall
be subject to such conditions relating to the disposition and management
thereof as the Liquidator deems reasonable and equitable and to any joint
ownership agreements or other agreements governing the ownership and operation
of such properties at such time. The Liquidator shall determine the fair
market value of any property distributed in kind using such reasonable method
of valuation as it may adopt.
12.5 Cancellation of Certificate of Limited Partnership. Upon the
completion of the distribution of Partnership property pursuant to Sections
12.3 and 12.4, the Partnership shall be terminated, and the Liquidator (or the
Limited Partner if necessary) shall cause the cancellation of the Certificate
of Limited Partnership and all qualifications of the Partnership as a foreign
limited partnership in jurisdictions other than Delaware and shall take such
other actions as may be necessary to terminate the Partnership.
12.6 Return of Capital. The General Partner shall not be
personally liable for the return of the Capital Contributions of the Limited
Partner, or any portion thereof, it being expressly understood that any such
return shall be made solely from Partnership assets.
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12.7 Waiver of Partition. Each Partner hereby waives
any rights to partition of the Partnership property.
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT
13.1 Amendments Which May be Adopted Solely by the General
Partner. The General Partner may amend any provision of this Agreement without
the consent of the Limited Partner, and may execute, swear to, acknowledge,
deliver, file and record whatever documents may be required in connection
therewith, to reflect:
(a) a change in the name of the Partnership, in
the location of the principal place of business of the
Partnership or in the registered office or registered agent
of the Partnership;
(b) a change that the General Partner deems appropriate or
necessary to (i) qualify, or continue the qualification of, the
Partnership as a limited partnership (or a partnership in which the
Limited Partner has limited liability) under the laws of any state or
jurisdiction or (ii) ensure that the Partnership will not be treated as
an association taxable as a corporation for federal income tax purposes;
(c) a change that the General Partner in its sole discretion
deems appropriate or necessary to satisfy any requirements, conditions
or guidelines contained in any
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order, rule or regulation of any federal or state agency or
contained in any federal or state statute;
(d) a change that is appropriate or necessary, as determined
by an Opinion of Counsel, to prevent the Partnership, the General
Partner, its Affiliates and their respective directors and officers from
in any manner being subjected to the provisions of the Investment
Company Act of 1940, as amended, the Investment Advisers Act of 1940, as
amended, or "plan asset" regulations adopted under the Employee
Retirement Income Security Act of 1974, as amended, whether or not
substantially similar to plan asset regulations currently applied or
proposed by the United States Department of Labor;
(e) a change that is required or contemplated by
any provision of this Agreement, including, without
limitation, Section 10.2;
(f) a change that in the good faith opinion of the General
Partner does not adversely affect the Limited Partner in any material
respect; or
(g) any changes or events similar to the
foregoing.
13.2 Other Amendments. Amendments to this Agreement
(other than amendments adopted pursuant to Section 13.1) shall be
effective only when approved by both Partners.
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ARTICLE XIV
CERTAIN RESTRICTIONS
14.1 Sale of Assets. Without the prior approval of
the Limited Partner, the General Partner shall not, acting on behalf of the
Partnership, sell or otherwise dispose of, or consent to the sale or other
disposition of, all or substantially all of the assets owned directly or
indirectly by the Partnership.
14.2 Minimum Net Worth of General Partner. The General Partner
shall at all times have assets that can be reached by creditors (excluding its
Partnership Interest or its interest in the MLP or any Operating Partnership
and any notes receivable from or payable to the Partnership, the MLP or any
Operating Partnership) having a fair market value (using such reasonable
method of valuation as the General Partner may adopt) sufficient so that in
the Opinion of Counsel the Partnership will not be treated as an association
taxable as a corporation for federal income tax purposes.
ARTICLE XV
GENERAL PROVISIONS
15.1 Opinions Regarding Taxation as a Partnership.
Notwithstanding any other provisions of this Agreement, the requirement, as a
condition to any action proposed to be taken under this Agreement, that the
Partnership receive an Opinion of Counsel that the proposed action would not
result in the
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Partnership or any other Person being treated as an association taxable as a
corporation for federal income tax purposes (a) shall not be applicable to the
extent that the Partnership or such person is at such time treated in all
material respects as an association taxable as a corporation for federal
income tax purposes and (b) shall be deemed satisfied by an Opinion of Counsel
containing conditions, limitations and qualifications which are acceptable to
the General Partner in its sole discretion.
15.2 Personal Property. The Partnership Interest of
any Partner shall be personal property for all purposes.
15.3 Addresses and Notices. Any notice to the Partnership, the
General Partner or the Limited Partner shall be deemed given if received by it
in writing at the principal office of the Partnership designated pursuant to
Section 2.3.
15.4 Headings. All article or section headings in this Agreement
are for convenience only and shall not be deemed to control or affect the
meaning or construction of any of the provisions hereof.
15.5 Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
successors and assigns.
15.6 Integration. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings pertaining thereto.
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15.7 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute a waiver of any such breach or of any other covenant, duty,
agreement or condition.
15.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement binding on
the parties hereto. Each party shall become bound by this Agreement
immediately upon affixing its signature hereto.
15.9 Severability. If any provision of this Agreement is or
becomes invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions hereof, or of such
provision in other respects, shall not be affected thereby.
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15.10 Applicable Law. This Agreement shall be
governed by and construed and enforced in accordance with the
laws of Delaware.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
General Partner and the Limited Partner as of the date first above written.
▇▇▇▇▇ & ▇▇▇▇, INC.
As General Partner
By:_________________________
▇▇▇▇▇ & TANG L.P.
As Limited Partner
By: ▇▇▇▇▇ & ▇▇▇▇, Inc.,
its General Partner
By:__________________________
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AGREEMENT
OF
LIMITED PARTNERSHIP
OF
▇▇▇▇▇ & TANG DISTRIBUTORS L.P.
307427.1
▇▇▇▇▇ & ▇▇▇▇ DISTRIBUTORS L.P.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
"Affiliate"................................................................ 1
"Agreed Value"............................................................. 2
"Agreement"................................................................ 2
"Business Day"............................................................. 2
"Capital Contribution"..................................................... 2
"Certificate of Limited Partnership"....................................... 2
"Code"..................................................................... 2
"Contributed Property"..................................................... 2
"Contributing Partner"..................................................... 2
"Delaware Act"............................................................. 3
"Designated Expenses"...................................................... 3
"General Partner".......................................................... 3
"Indemnitee"............................................................... 3
"Limited Partner".......................................................... 3
"Liquidator"............................................................... 3
"MLP"...................................................................... 4
"MLP Agreement"............................................................ 4
"MLP General Partner"...................................................... 4
"Net Agreed Value"......................................................... 4
"Operating Partnership".................................................... 4
"Opinion of Counsel"....................................................... 4
"Partner".................................................................. 4
"Partnership".............................................................. 4
"Partnership Interest"..................................................... 4
"Person"................................................................... 5
"RTI"...................................................................... 5
"RTI Contributed Property"................................................. 5
"Securities Act"........................................................... 5
"States"................................................................... 5
ARTICLE II
ORGANIZATIONAL MATTERS
2.1 Formation............................................................. 5
2.2 Name.................................................................. 5
2.3 Principal Office; Registered Office................................... 6
2.4 Term.................................................................. 6
2.5 Organizational Certificate............................................ 6
2.6 Partnership Interests................................................. 7
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ARTICLE III
PURPOSE
3.1 Purpose............................................................... 7
ARTICLE IV
CAPITAL CONTRIBUTIONS
4.1 Capital Contributions................................................. 7
4.2 No Preemptive Rights.................................................. 8
4.3 No Interest........................................................... 8
4.4 Loans from Partners................................................... 8
ARTICLE V
DISTRIBUTIONS
5.1 Distributions......................................................... 8
ARTICLE VI
INCOME TAX MATTERS
6.1 Tax Allocations....................................................... 9
6.2 Preparation of Tax Returns............................................ 9
6.3 Tax Elections......................................................... 10
6.4 Tax Controversies..................................................... 10
ARTICLE VII
MANAGEMENT AND OPERATION OF BUSINESS;
INDEMNIFICATION
7.1 Powers of General Partner............................................. 10
7.2 Duties of General Partner............................................. 12
7.3 Reliance by Third Parties............................................. 13
7.4 Compensation and Reimbursement of the General Partner................. 14
7.5 Partnership Funds..................................................... 15
7.6 Outside Activities; Contracts with Affiliates; Loans to or
from Affiliates...................................................... 16
7.7 Tax Basis and Value Determinations.................................... 18
7.8 Resolution of Conflicts of Interest; Standard of Care................. 18
7.9 Other Matters Concerning the General Partner.......................... 20
7.10 Limited Liability; Indemnification................................... 21
ARTICLE VIII
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
8.1 Limitation of Liability............................................... 23
8.2 Management of Business................................................ 24
8.3 Outside Activities.................................................... 24
8.4 Return of Capital..................................................... 24
8.5 Rights of Limited Partners Relating to the Partnership................ 24
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ARTICLE IX
BOOKS, RECORDS AND ACCOUNTING
9.1 Books, Records and Accounting......................................... 25
9.2 Fiscal Year........................................................... 25
ARTICLE X
TRANSFER OF PARTNERSHIP INTERESTS; SUCCESSOR PARTNERS
10.1 Transfer of Partnership Interests.................................... 26
10.2 Successor Partners................................................... 26
ARTICLE XI
REMOVAL OF THE GENERAL PARTNER
11.1 Removal of the General Partner....................................... 27
11.2 Sale of Former General Partner's Interest............................ 27
ARTICLE XII
DISSOLUTION AND LIQUIDATION
12.1 Dissolution.......................................................... 28
12.2 Reconstitution....................................................... 29
12.3 Liquidation.......................................................... 31
12.4 Distribution in Kind................................................. 32
12.5 Cancellation of Certificate of Limited Partnership................... 33
12.6 Return of Capital.................................................... 33
12.7 Waiver of Partition.................................................. 34
ARTICLE XIII
AMENDMENT OF PARTNERSHIP AGREEMENT
13.1 Amendments Which May be Adopted Solely by the General
Partner.............................................................. 34
13.2 Other Amendments..................................................... 35
ARTICLE XIV
CERTAIN RESTRICTIONS
14.1 Sale of Assets....................................................... 36
14.2 Minimum Net Worth of General Partner................................. 36
ARTICLE XV
GENERAL PROVISIONS
15.1 Opinions Regarding Taxation as a Partnership......................... 36
15.2 Personal Property.................................................... 37
15.3 Addresses and Notices................................................ 37
15.4 Headings............................................................. 37
15.5 Binding Effect....................................................... 37
15.6 Integration.......................................................... 37
15.7 Waiver............................................................... 38
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15.8 Counterparts......................................................... 38
15.9 Severability......................................................... 38
15.10 Applicable Law...................................................... 39
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Amended and Restated Agreement of
Limited Partnership of
▇▇▇▇▇ & ▇▇▇▇ Distributors L.P.
First Amendment
This First Amendment (the "First Amendment") to the Amended
and Restated Agreement of Limited Partnership of ▇▇▇▇▇ & Tang Distributors
L.P. (the "Agreement") is entered into as of the 1st day of October, 1994 (the
"Amendment Date") by and among ▇▇▇▇▇ & ▇▇▇▇ Asset Management, Inc. ("R&TAM" or
the "General Partner") and ▇▇▇▇▇ & Tang Asset Management L.P.
("R&TAMLP" or the "Limited Partner").
Section references and other capitalized terms not otherwise
defined herein have the meaning assigned to them by the Agreement.
WHEREAS, pursuant to Section 10.1 of the Agreement, New
England Investment Companies, Inc. ("NEIC") has transferred its entire general
Partnership Interest in the Partnership to R&TAM in accordance with the terms
of the Acknowledgement of Contribution, Issuance of Shares and Purchase and
Sale in respect of ▇▇▇▇▇ & ▇▇▇▇ Asset Management, Inc. of even date herewith;
WHEREAS, pursuant to Section 10.1 of the Agreement, New
England Investment Companies, L.P. ("NEICLP") has transferred its entire
limited Partnership Interest in the Partnership to R&TAMLP in accordance with
the terms of the Contribution to Partnership in respect of ▇▇▇▇▇ & Tang Asset
Management L.P. of even date herewith;
WHEREAS, in connection with the aforementioned transfers,
NEIC and NEICLP have relinquished all of their Partnership Interests and are
no longer Partners of the Partnership, and R&TAM and R&TAMLP have agreed to
assume the obligations of NEIC and NEICLP, respectively, and have become
successor Partners of the Partnership; and
WHEREAS, R&TAM and R&TAMLP wish to amend the Agreement by
adopting this First Amendment, thereby setting forth the agreements with
respect to the conduct of the business of the Partnership and each of their
rights and obligations.
NOW THEREFORE, in consideration of the foregoing premises,
the agreements and covenants contained herein and other good and valuable
consideration received, the receipt and sufficiency of which are hereby
acknowledged, R&TAM and R&TAMLP hereby agree as follows, all amendments to be
effective as of the Amendment Date unless otherwise indicated:
307427.1
(a) The definition of General Partner in Article I is
amended in its entirety to read as follows:
""General Partner" means R&TAM, in its capacity as
the general partner of the Partnership and any
successor to R&TAM as such general partner."
(b) The definition of Limited Partner in Article I is
amended in its entirety to read as follows:
""Limited Partner" means R&TAMLP, in its capacity
as the limited partner of the Partnership and any
successor to R&TAMLP as such limited partner."
(c) The definition of MLP Agreement in Article I is amended
in its entirety to read as follows:
""MLP Agreement" means the Amended and Restated Agreement of
Limited Partnership of ▇▇▇▇▇ & ▇▇▇▇ ▇.▇., dated as of
September 15, 1993, as may be amended from time to time."
(d) New definitions of R&TAM and R&TAMLP are added
in Article I to read as follows:
""R&TAM" means ▇▇▇▇▇ & Tang Asset Management,
Inc., a Massachusetts corporation."
""R&TAMLP" means ▇▇▇▇▇ & ▇▇▇▇ Asset Management
L.P., a Delaware limited partnership."
(e) In Section 4.1(a), the words "Limited Partner" are
replaced by the word "MLP" wherever such words appear.
(f) Section 14.2 is deleted.
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IN WITNESS WHEREOF, this First Amendment is duly executed by
the General Partner and the Limited Partner as of the date first above
written.
▇▇▇▇▇ & TANG ASSET MANAGEMENT, INC.
As General Partner
By:/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇ & TANG ASSET MANAGEMENT, L.P.
As Limited Partner
By: ▇▇▇▇▇ & ▇▇▇▇ Asset Management, Inc.,
its general partner
By:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Consented to:
NEW ENGLAND INVESTMENT COMPANIES, INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and General Counsel
NEW ENGLAND INVESTMENT COMPANIES, L.P.
By: New England Investment Companies, Inc.,
its general partner
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
and General Counsel
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307427.1
STATE OF NEW YORK
CERTIFICATE OF AMENDMENT OR CHANGE OF
▇▇▇▇▇ & ▇▇▇▇ DISTRIBUTORS L.P.
UNDER SECTION 121-903 OF
THE REVISED LIMITED PARTNERSHIP ACT
1. The name of the limited partnership is: ▇▇▇▇▇ & Tang
Distributors L.P.
2. The jurisdiction of organization of the foreign limited
partnership is: Delaware
3. The date the foreign limited partnership was authorized to
do business in the state was: March 4, 1991
4. The sole general partner of the foreign limited partnership has been
deleted, and a new general partner is being substituted. The new general
partner is: ▇▇▇▇▇ & ▇▇▇▇ Asset Management, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Such change has been effected under the laws of
the jurisdiction of organization on October 1, 1994.
IN WITNESS WHEREOF, this Certificate of Amendment has been
duly executed and subscribed and does affirm the foregoing as true under the
penalties of perjury this day of October, 1994.
▇▇▇▇▇ & TANG DISTRIBUTORS L.P.
By: ▇▇▇▇▇ & ▇▇▇▇ Asset Management, Inc.,
General Partner
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Clerk
307427.1
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇ & TANG DISTRIBUTORS ▇.▇.
▇▇▇▇▇ & ▇▇▇▇ Distributors L.P., a limited partnership
organized under the Delaware Revised Uniform Limited Partnership Act (the
"Act"), for the purpose of amending its Certificate of Limited Partnership
pursuant to Section 17-202 of the Act, hereby certifies that effective on
October 1, ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 3 of the Certificate of Limited Partnership is
amended to read in its entirety as follows:
3. General Partner. The name and the business
address of the sole general partner of the Partnership is:
▇▇▇▇▇ & Tang Asset Management, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF, this Certificate of Amendment has been
duly executed by a general partner thereunto duly authorized as of the 1st day
of October, 1994.
▇▇▇▇▇ & ▇▇▇▇ DISTRIBUTORS L.P.
By: ▇▇▇▇▇ & Tang Asset Management, Inc.,
General Partner
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
307427.1
