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Exhibit
10.2
20
INTERNET CAPITAL LP
This Agreement of Limited
Partnership, effective as of January 1, 20
(the “Effective Date”),
among ICG Holdings, Inc. as general partner (the “General
Partner”), and the persons identified on Exhibit I, as
amended from time to time, attached hereto as limited partners (the
“Limited Partners” and, together with the General
Partner, the “Partners”). The General Partner and the
Limited Partners are sometimes referred to herein collectively as
the “Partners” or individually as a
“Partner.” Capitalized terms shall have the meanings
set forth in Article XII below.
The parties, in consideration
of their mutual covenants herein contained, agree to become
partners and to form a limited partnership (the
“Partnership”) as follows:
ARTICLE I
Formation; Name and
Office;
Purpose; Powers; Term
and Dissolution
Section 1.1.
Formation . The Partners hereby form the Partnership
pursuant to the provisions of the Act by executing this Agreement
of Limited Partnership and filing a Certificate of Limited
Partnership in the office of the Secretary of State of the State of
Delaware.
Section 1.2. Name and
Office . The Partnership shall be conducted under the name 20
Internet Capital LP.
(a) The General Partner shall
have the power at any time to (i) change the name of the
Partnership and (ii) qualify the Partnership to do business
under any name when the Partnership’s name is unavailable for
use in a particular jurisdiction. The General Partner shall use its
best efforts to qualify the Partnership to do business in each
jurisdiction where the activities of the Partnership make such
qualification necessary. The General Partner shall give prompt
notice of any change of the Partnership’s name to each
Partner.
(b) The registered office of
this Partnership in the State of Delaware is Plaza 273, Suite 212A,
56 W. Main Street Christiana, DE 19702 or such other place as may
from time to time be designated by the General Partner. The General
Partner shall give notice of any such change to each
Partner.
(c) The principal office of
the Partnership shall be at Plaza 273, Suite 212A, 56 W. Main
Street Christiana, DE 19702 or such other place as may from time to
time be designated by the General Partner. The General Partner
shall give notice of any such change to each Partner.
Section 1.3.
Purpose . The Partnership is being organized for the purpose
of acquiring Securities, engaging in such activities as may be
permitted hereby or are incidental hereto and engaging in any and
all lawful business activities in which limited partnerships formed
in the State of Delaware under the Act may participate.
Section 1.4.
Powers . In furtherance of the purpose of the Partnership as
specified in Section 1.3, the Partnership shall have all
powers available to it as a limited partnership under the laws of
the State of Delaware that are reasonably necessary to enable it to
perform its functions and conduct its activities, including,
without limitation, (i) the power to make and perform all
contracts and engage in all activities and transactions necessary
or advisable to carry out the purpose of the Partnership,
(ii) the power to purchase, sell, transfer, pledge and
exercise all rights, privileges and incidents of ownership or
possession with respect to Securities and other Partnership Assets
and (iii) the power to form other limited partnerships and to
make capital contributions to such partnerships.
Section 1.5. Term and
Dissolution . The Partnership shall continue in full force and
effect indefinitely until the Partnership is dissolved pursuant to
the provisions of Article VII.
ARTICLE II
Limited
Partners
Section 2.1. Initial
Limited Partners . The initial Limited Partners are listed on
Exhibit I hereto. Additional Limited Partners may be admitted by
the General Partner from time to time pursuant to Section 2.2
below.
Section 2.2.
Admission of Limited Partners . One or more additional
Limited Partners shall be admitted to the Partnership and shall
become a party to this Agreement upon (i) each signing a
counterpart of this Agreement and delivering such counterpart to
the General Partner in such manner and at such time as the General
Partner shall determine and (ii) acceptance thereof by the
General Partner, at the sole discretion of the General Partner.
Each additional Limited Partner so admitted to this Partnership
shall be bound by all the provisions of this Agreement.
Section 2.3.
Liability of Limited Partners . Except as otherwise provided
under the Act, no Limited Partner, in his capacity as such, shall
be liable for any debts, liabilities, contracts or obligations of
the Partnership. No Limited Partner, in his capacity as such, shall
be liable for any debts, liabilities, contracts or obligations of
any other Partner.
ARTICLE III
Capital
Contributions
Section 3.1.
Contribution of General Partner . The General Partner shall
contribute cash or Securities in respect of its interest in the
Partnership the amount set forth opposite its name on Exhibit I
attached hereto. The General Partner may make additional Capital
Contributions from time to time in cash or Securities, and Exhibit
I shall be accordingly amended, but the inadvertent failure to
amend such Exhibit I shall not affect the calculations of Capital
Contributions.
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Section 3.2.
Contributions of Limited Partners . Each Limited Partner
shall make a Capital Contribution in connection with such Limited
Partner’s admission to the Partnership equal to the product
of (a) $10 multiplied by (b) the number of Carry Units
awarded to such Limited Partner as shown on Exhibit I, as amended
from time to time (“Carry Units”). A Limited Partner
shall not be required to make any additional Capital Contributions
to the Partnership.
Section 3.3.
Withdrawal of Capital . A Partner shall not be entitled to
bring an action for partition against the Partnership, or to demand
or receive any distribution of or with respect to his Capital
Contribution except as is specifically provided in this
Agreement.
ARTICLE IV
Rights, Powers and
Duties of the General Partner
Section 4.1.
Management of the Partnership .
(a) The General Partner shall
have sole and exclusive right to manage, control and conduct the
affairs of the Partnership and to do any and all acts on behalf of
the Partnership. In particular, all decisions with respect to
Securities including, without limitation, the deployment or
redeployment, holding, disposition, distribution to Partners or any
similar decisions will be made solely by the General
Partner.
(b) The General Partner may,
from time to time, appoint one or more officers with such titles as
it may designate to act in the name of the Partnership with such
authority as may be delegated to such officer(s) by the General
Partner. Any such officer shall act pursuant to such delegated
authority until such officer is removed by the General Partner,
which removal may be effected at any time with or without cause or
reason. Any action taken by an officer designated by the General
Partner shall constitute the act of and serve to bind the
Partnership. In dealing with the officers acting on behalf of the
Partnership, no person shall be required to inquire into the
authority of the officers to bind the Partnership. Persons dealing
with the Partnership are entitled to rely conclusively on the power
and authority of any officer set forth in this Agreement and any
instrument executed by the General Partner designating such officer
and the authority delegated to him or her. The General Partner will
possess all of the powers and rights of a general partner under the
Act.
Section 4.2.
Authorized Acts . The General Partner is authorized and
empowered to carry out and implement the purpose of the
Partnership, as provided in Section 1.3, and to exercise the
powers of the Partnership, as provided in Section 1.4, for, in
the name of, and on behalf of, the Partnership.
Section 4.3. Powers
of the Limited Partners . The Limited Partners shall take no
part in the control, management or conduct of the affairs of the
Partnership nor shall the Limited Partners have any authority to
vote on Partnership matters or to act for or on behalf of the
Partnership except as otherwise required by law.
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Section 4.4.
Liability of the General Partner . The General Partner shall
not be liable, responsible or accountable, in damages or otherwise,
to any other Partner or to the Partnership for any act or omission
taken by such General Partner, except for its own gross negligence
or willful misconduct, nor shall the General Partner be liable,
responsible or accountable for the gross negligence or willful
misconduct (including dishonesty or bad faith) of any employee,
officer, broker or other agent of the Partnership which the General
Partner shall have selected with reasonable care. The General
Partner shall be entitled to rely upon the advice of counsel and
public accountants, and shall not be liable, responsible or
accountable, in damages or otherwise, to any other Partner or to
the Partnership, for any act or omission which he shall take in
good faith in reliance on such advice.
Section 4.5.
Indemnification .
(a) The Partnership shall
indemnify, to the fullest extent permitted by law, the General
Partner and its officers, directors, employees, partners and agents
(“Indemnified Parties”) from and against all costs and
expenses, including attorneys’ fees, judgments, fines,
settlements and/or liabilities incurred by or imposed upon any
Indemnified Party in connection with, or resulting from,
investigating, preparing or defending any action, suit or
proceeding, whether civil, criminal, legislative or otherwise (or
any appeal thereof), to which any Indemnified Party may be made a
party or become otherwise involved or with which any Indemnified
Party may be threatened, in each case by reason of, or in
connection with, the Indemnified Party being or having been
associated with or otherwise acting for the Partnership, or having
acted as a director, officer, employee, partner or agent of any
Entity in which the Partnership had acquired an interest, or by
reason of any action or alleged action, omission or alleged
omission by any Indemnified Party in any such capacity, provided
that the Indemnified Party is not ultimately adjudged to have
engaged in gross negligence or willful misconduct, and provided
further that the Indemnified Party acted in a manner that he
reasonably believed to be in, or not opposed to, the best interests
of the Partnership.
(b) Except with regard to any
action, suit or proceeding where the Partnership’s interests
are adverse to the interests of the Indemnified Party, the
Partnership shall pay the expenses incurred by an Indemnified Party
in investigating, preparing or defending any civil or criminal
action, suit or proceeding, in advance of the final disposition
thereof, upon receipt of an undertaking by the Indemnified Party to
repay such payment if there is a final determination that such
Indemnified Party is not entitled to indemnification as provided
herein.
(c) The Partnership shall
make all indemnification provided for pursuant to this
Section 4.5 solely out of Partnership Assets and only to the
extent of such Partnership Assets. Except as explicitly provided
herein, no Limited Partner shall have any personal liability for
any indemnification required or permitted pursuant to this
Section 4.5. None of the provisions of this Section 4.5
shall be deemed to create or grant any rights in favor of
Indemnified Parties which cannot be discharged out of Partnership
Assets, except as explicitly provided herein, or in favor of anyone
other than Indemnified Parties; provided, however, this provision
excludes, among others, any right of subrogation in favor of any
insurer or surety. The rights of indemnification granted hereunder
shall survive the termination, dissolution and winding up of the
Partnership.
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ARTICLE V
Capital Accounts;
Allocations and Distributions
Section 5.1. Capital
Accounts . There shall be established for each Partner a
separate Capital Account.
Section 5.2.
Allocations .
(a) After giving effect to
the special allocations, if any, set forth in Section 5.5, Net
Income or Net Loss for any Accounting Period shall be allocated
among the Partners in accordance with the following
provisions:
(i) Net Income derived from
the Partnership’s interest in each Security Position shall be
allocated as follows:
(A) First, 100% to the
General Partner until (1) the cumulative amount of Net Income
allocated pursuant to this Section 5.2(a)(i)(A)(1) for the
current Accounting Period and all prior Accounting Periods equals
the cumulative amount of Net Loss, if any, allocated pursuant to
Section 5.2(a)(ii) for all prior Accounting Periods and
(2) the cumulative amount of Net Income from such Security
Position allocated to the General Partner pursuant to this
Section 5.2(a)(i)(A)(2) equals 100% of the General
Partner’s Preferred Return for such Security
Position;
(B) Second, 100% to the
Limited Partners (to be divided among them pro rata in accordance
with their Carry Units divided by total Carry Units outstanding)
until the Net Profits allocated to the Limited Partners pursuant to
this Section 5.2(a)(i)(B) is equal to (1) the General
Partner’s Preferred Return for such Security Position
multiplied by (2)(y) the Limited Partners’ Carry
Percentage divided by (z) one minus the Limited
Partners’ Carry Percentage; and
(C) Third, to the Limited
Partners (to be divided among them pro rata in accordance with
their Carry Units divided by total Carry Units outstanding) an
amount equal to the Limited Partners’ Carry Percentage of the
Net Income remaining after the allocation in
Section 5.2(a)(i)(B) and the remainder to the General
Partner.
(ii) Net Loss with respect to
a Security Position shall first be allocated in a manner that
reverses the allocated Net Income with respect to such Security
Position in Section 5.2(a)(i) above, reversing allocations
first under subsection (C) and then subsection (B) and
then subsection (A) of Section 5.2(a)(i) above and then
to the Partners in accordance with Capital Percentages.
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(iii) Notwithstanding
anything to the contrary in this agreement, in the event the
General Partner reasonably believes that a Clawback will be
required, the General Partner shall be permitted to allocate Net
Loss in a manner that accounts for the Clawback. If allocations of
Net Loss are made pursuant to this Section and the General Partner
later determines that a Clawback will not be required, the General
Partner shall make allocations of Net Income, prior to any
allocations being made under Section 5.2(a)(i), to reverse
prior allocations of Net Loss made pursuant to this
Section.
(iv) Short-term Investment
Income and Short-term Investment Loss shall be allocated to the
Partners in accordance with Capital Percentages.
(v) Holdback Amount
Investment Income shall be allocated to the Partners in accordance
with their Holdback Amount account balances.
(b) If an interest in the
Partnership is transferred during a taxable year, Net Income or Net
Loss (and any item of income, gain, loss, deduction or credit) for
such taxable year allocable to the transferred interest shall be
allocated between the transferor and the transferee on an interim
closing of the books basis, based upon that portion of such taxable
year during which each was recognized as owning such interest. Any
such allocation must be in accordance with a method permissible
under Section 706 of the Code and Treasury Regulations
thereunder.
Section 5.3.
Distributions .
(a) Except for distributions
in liquidation pursuant to Section 7.2(b) and as otherwise
provided in this Section 5.3, the General Partner shall cause
the Partnership to distribute to the Partners all or part of the
Acquired Assets, the proceeds from a Disposition or Dispositions or
other income and proceeds attributable to the Partnership’s
interest in any of the Security Positions as soon as practicable
after such Disposition or other event giving rise to the Acquired
Assets becoming distributable. Any Acquired Assets distributed by
the Partnership shall be valued at their Gross Asset Value and
treated for Capital Account purposes as if sold immediately prior
to distribution. Distributions of different types or classes of
property or securities need not be made pro rata to all Partners,
so long as the Gross Asset Value of all distributions is allocated
in accordance with this Section 5.3.
(b) In the case of any
distribution with respect to a Security Position, distributions
shall be made among the Partners in the following
manner:
(i) First, the General
Partner shall receive an amount equal to the Cost Basis of the
Security Position the proceeds of which are being
distributed;
(ii) Second, the General
Partner shall receive an amount equal to the amount of Net Income
allocated to the General Partner under
Section 5.2(a)(i)(A);
(iii) Third, the Limited
Partners shall each receive an amount equal to the amount of Net
Income allocated to each such Limited Partner under
Section 5.2(a)(i)(B); and
(iv) Fourth, to the General
Partner and Limited Partners amounts equal to the amount of Net
Income allocated to each such Partner under
Section 5.2(a)(i)(C).
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(c) In the case of a
distribution attributable to a disposition of Securities that
occurred in a prior calendar year, the distribution shall be
treated for purposes of this Section 5.3 as taking place in
such prior calendar year.
(d) Distributions with
respect to Short-term Investment Income shall be made at such times
as the General Partner shall determine in proportion to the
Partners’ Capital Percentages. Distributions with respect to
Holdback Amount Investment Income shall be made within 31 days
after the end of each fiscal year
(e) Notwithstanding the
foregoing provisions of this Section 5.3, in no event shall a
distribution be made to a Limited Partner to the extent that such
distribution would cause such Limited Partner (after taking into
account any allocations of Net Income or Net Loss attributable to
such distribution) to have a deficit balance in such Limited
Partner’s Capital Account. In the event that a distribution
is restricted pursuant to this Section 5.3(e), the Partnership
shall, as promptly as possible, make a special distribution to such
Limited Partner of an amount subject to restriction under this
Section 5.3(e) at such time, if any, as such distribution
would not cause such Limited Partners to have a deficit balance in
such Limited Partner’s Capital Account.
(f) Notwithstanding the
foregoing provisions of this Section 5.3, 40% of all amounts
otherwise distributable to Limited Partners, other than
distributions under Section 5.3(d) or liquidating
distributions pursuant to Section 7.2(b), will be withheld by
the Partnership (the “Holdback Amount”) to secure any
Clawback claims. The General Partner shall maintain a record of
each Limited Partner’s Holdback Amount. The General Partner
shall be permitted to commingle Holdback Amount funds with its own
funds for the purpose of investing or reinvesting such funds in
accordance with the General Partner’s investment policy for
its excess cash, provided that the General Partner maintains an
accounting of each Limited Partner’s Holdback Amount and
credits each Limited Partner with an amount equal to the General
Partner’s actual percentage earnings on its excess cash
investments each month multiplied by each Limited Partner’s
Holdback Amount account balance as of the beginning of such month
(“Holdback Amount Investment Income”). If, in the
General Partner’s discretion, the Holdback Amount funds are
in excess of any potential Clawback claim under Section 7.4,
the General Partner may distribute such excess on a pro rata
basis.
Section 5.4. Tax
Withholdings . To the extent the Partnership is required by
federal, state or local law or any tax treaty to withhold or to
make tax payments on behalf of or with respect to any Partner, the
General Partner shall withhold such amounts or make such tax
payments as so required. The amount of such payments shall
constitute an advance by the Partnership to such Partner bearing
interest at the lowest applicable federal rate for such advance
and, if such Partner shall not have reimbursed the Partnership for
such amount, such amount plus interest, if any, shall be repaid to
the Partnership by reducing the amount of the current or next
succeeding distribution or distributions which would otherwise have
been made to such Partner or, if such distributions are not
sufficient for that purpose, by so reducing the proceeds of
liquidation otherwise payable to such Partner and if such proceeds
are insufficient, such Partner shall pay to the Partnership the
amount of such insufficiency.
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Section 5.5. Special
Allocation - Qualified Income Offset . In the event that any
Partner unexpectedly received any adjustments, allocations or
distributions described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall
be specifically allocated to each Partne
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