EXHIBIT 10.33
THE LIMITED PARTNER INTERESTS EVIDENCED BY THIS AGREEMENT HAVE NOT
BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES
LAWS OF ANY
STATE OR FOREIGN JURISDICTION AND MAY NOT BE SOLD OR TRANSFERRED
WITHOUT
COMPLIANCE WITH APPLICABLE FEDERAL, STATE OR FOREIGN SECURITIES
LAWS. IN
ADDITION, TRANSFER OR OTHER DISPOSITION OF THE LIMITED PARTNER
INTERESTS IS
RESTRICTED AS PROVIDED IN THIS AGREEMENT.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
GSAVP GP, L.P.
DATED AS OF
MARCH 31, 2006
TABLE OF CONTENTS
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Page
ARTICLE 1
GENERAL PROVISIONS
Section 1.01.
Definitions.....................................................1
Section 1.02.
Name of the Partnership.........................................1
Section 1.03.
Continuation of the Partnership.................................1
Section 1.04.
Purposes of the Partnership and Powers..........................1
Section 1.05.
Office; Registered Agent........................................2
Section 1.06.
Title to Partnership Property...................................2
Section 1.07.
Filing of Certificates..........................................3
Section 1.08.
Admission of Limited Partners...................................3
Section 1.09.
Subsequent Admission of Limited Partners........................3
ARTICLE 2
GOVERNANCE; MANAGEMENT AND OPERATIONS OF THE PARTNERSHIP
Section 2.01.
Management of the Partnership...................................4
Section 2.02.
Powers of the General Partner...................................4
Section 2.03.
Investment Committee............................................6
Section 2.04.
Transactions with Affiliates....................................7
Section 2.05.
Other Activities................................................7
Section 2.06.
Books and Records; Accounting Method; Fiscal Year...............7
Section 2.07.
Partnership for Tax Purposes; Partnership Tax Returns...........8
Section 2.08.
Confidentiality.................................................9
Section 2.09.
Investment of Funds............................................11
Section 2.10.
Other Authority................................................12
ARTICLE 3
CARRIED INTEREST POINTS; CERTAIN OTHER MATTERS
Section 3.01.
General Provisions.............................................12
Section 3.02.
Assignment of Carried Interest Points..........................13
Section 3.03.
Pro Rata Dilution..............................................15
Section 3.04.
No Right to Awards or Continued Employment.....................15
Section 3.05.
Effect of Termination of Employment............................15
Section 3.06.
Other Provisions Relating to Special Limited Partners..........18
Section 3.07.
Effect of Change in Control....................................19
ARTICLE 4
EXPENSES
Section 4.01.
Definition of Expenses.........................................19
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Section 4.02.
Responsibility for Partnership Expenses among the Partners.....19
ARTICLE 5
CAPITAL CONTRIBUTIONS
Section 5.01.
Capital Contributions..........................................20
Section 5.02.
Payment of Capital Contributions...............................20
ARTICLE 6
CAPITAL ACCOUNTS; ALLOCATIONS; DISTRIBUTIONS
Section 6.01.
Principles of Distributions Attributable to Invested Capital...20
Section 6.02.
Principles of Distributions Attributable to Carried Interest...20
Section 6.03.
Other Provisions Relating to Distributions.....................21
Section 6.04.
Capital Accounts; Adjustments to Capital Accounts..............23
Section 6.05.
Tax Allocations................................................24
Section 6.06.
Foreign Currency Considerations................................24
Section 6.07.
Segregated Accounts; Netting of Carried Interest Shares;
Distributions from Segregated Accounts
.......................................25
Section 6.08.
Loans and Withdrawal of Amounts Allocated to Capital Accounts..26
Section 6.09.
Repayment of Certain Distributions.............................26
ARTICLE 7
REPORTS TO LIMITED PARTNERS
Section 7.01.
Reports........................................................27
ARTICLE 8
EXCULPATION AND INDEMNIFICATION
Section 8.01.
Exculpation and Indemnification................................27
ARTICLE 9
DURATION AND DISSOLUTION OF THE PARTNERSHIP
Section 9.01.
Duration.......................................................29
Section 9.02.
Dissolution....................................................30
Section 9.03.
Liquidation of Partnership.....................................30
Section 9.04.
Distribution upon Dissolution of the Partnership...............31
Section 9.05.
Resignation of Limited Partners................................32
ARTICLE 10
TRANSFERABILITY OF A LIMITED PARTNER'S INTEREST
Section 10.01.
Restrictions on Transfer of Limited Partner Interests.........32
Section 10.02.
Expenses of Transfer; Indemnification.........................33
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Section 10.03.
Recognition of Transfer; Substituted Partners.................33
Section 10.04.
Information Reporting In Connection With Transfer.............34
ARTICLE 11
TRANSFERABILITY OF GENERAL PARTNER'S INTEREST
Section 11.01.
Transferability of General Partner's Interest.................35
ARTICLE 12
MISCELLANEOUS
Section 12.01.
Entire Agreement; Amendments; Waivers; Termination............35
Section 12.02.
Mergers and Consolidations....................................36
Section 12.03.
Investment Representation.....................................36
Section 12.04.
Successors; Counterparts......................................36
Section 12.05.
Governing Law; Severability...................................36
Section 12.06.
Further Assurance.............................................37
Section 12.07.
Filings.......................................................37
Section 12.08.
Power of Attorney.............................................37
Section 12.09.
No Bill for Partnership Accounting............................38
Section 12.10.
Goodwill......................................................38
Section 12.11.
Notices.......................................................38
Section 12.12.
Arbitration...................................................38
Section 12.13.
Withholding...................................................39
Section 12.14.
Headings......................................................40
ARTICLE 13
CLAWBACK OBLIGATIONS
Section 13.01.
General Partner Clawback......................................40
Section 13.02.
Guaranty......................................................40
Appendix A
Definitions....................................................A-1
Schedule I
Initial Allocation of Carried Interest Points..................S-1
Schedule II
Form of Award of Carried Interest Points.......................S-2
Schedule III
Capital Commitments ...........................................S-3
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AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
GSAVP GP, L.P.
(A LIMITED PARTNERSHIP FORMED UNDER THE LAWS OF THE STATE OF
DELAWARE)
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF GSAVP GP,
L.P.
dated as of March 31, 2006.
WITNESSETH:
WHEREAS, Greenhill Venture Partners, LLC, a Delaware limited
liability
company, as General Partner, and Ulrika Ekman, as initial Limited
Partner,
heretofore entered into an Agreement of Limited Partnership dated
as of March 8,
2006 (the "ORIGINAL AGREEMENT") and formed a limited partnership
pursuant to the
Delaware Revised Uniform Limited Partnership Act 6 Del.C.
ss.17-101, et seq, as
amended from time to time (the "DELAWARE ACT"); and
WHEREAS, the parties hereto desire to continue the limited
partnership and
to amend and restate the Original Agreement in its entirety.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 14
GENERAL PROVISIONS
Section 14.01. Definitions. Capitalized terms used herein without
definition have the meanings assigned to them in Appendix A hereto.
Section 14.02. Name of the Partnership. The name of the Partnership
is
GSAVP GP, L.P. The business of the Partnership shall be conducted
under such
name or such other names (upon notice to all the Limited Partners)
as the
General Partner may from time to time determine.
Section 14.03. Continuation of the Partnership. The General Partner
and
the Limited Partners hereby continue the Partnership as a limited
partnership
under and pursuant to the Delaware Act.
Section 14.04. Purposes of the Partnership and Powers. The
Partnership is
formed for the object and purpose of, and the nature of the
business to be
conducted and promoted by the Partnership is, engaging in any
lawful act or
activity for which limited partnerships may be formed under the
Delaware Act and
engaging in any and all activities necessary or incidental to the
foregoing.
Without limiting the generality of the foregoing, the purpose of
the Partnership
is also to act as the general partner of GSAV, L.P., GSAV
(Associates), L.P.,
GSAV New York, L.P. and any other Related Funds (collectively, the
"FUNDS"). In
furtherance of its purposes, (a) the Partnership shall have and may
exercise all
of the powers now or hereafter conferred by Delaware law on limited
partnerships
formed under the Delaware Act, including without limitation, all of
the powers
that may be exercised on behalf of the Partnership by any of its
Partners and
(b) the Partnership shall have the power to do any and all acts
necessary,
appropriate, proper, advisable, incidental or convenient to or for
the
protection and benefit of the Partnership.
Section 14.05. Office; Registered Agent. (a) The Partnership's
registered
agent and office in the State of Delaware shall be The Corporation
Trust
Company, Corporation Trust Center, 1209 Orange Street, Wilmington,
New Castle
County, Delaware 19801.
(a)
The business address of the Partnership shall be 300 Park Avenue,
New York, New York 10022, or (upon notice to all the Limited
Partners) such
other address as may be designated by the General Partner.
Section 14.06. Title to Partnership Property. (a) All property of
the
Partnership, whether real or personal, tangible or intangible,
shall be owned by
the Partnership as an entity, and no Partner, individually, shall
have any
direct ownership interest in such property. Title to all such
property shall be
held in the name of the Partnership and all securities shall be
registered in
the name of the Partnership; provided, however, that publicly
traded securities
may be held in "street name" or through a similar arrangement with
a reputable
financial institution.
(a)
The Partnership shall, subject to the terms of this Agreement, be
the exclusive beneficial holder of all securities and other
property acquired in
connection with any investment made by the Partnership and of any
property
transferred to the Partnership, and the Partnership shall make any
such filings
as may be required or desirable in connection therewith.
(b)
Any and all rights, including, without limitation, voting rights,
rights to consent to, object to or grant waivers with respect to
partnership,
limited partnership and corporate action, rights to sell, transfer
or encumber
any securities or other property held by the Partnership and any
rights arising
out of or relating to any documents the Partnership is party to,
including the
right to consent to or object to any proposed amendment or
modification thereof
or waiver thereunder, shall be vested exclusively in the
Partnership and shall
be exercised only by the Partnership and no Partner either alone or
acting with
one or more other Partners shall have any such rights with respect
to such
securities or property.
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Section 14.07. Filing of Certificates. The General Partner is
hereby
authorized to execute, deliver and file, or to cause the execution,
delivery and
filing of, all certificates (and all amendments and/or restatements
thereof)
required or permitted by the Delaware Act to be filed in the office
of the
Secretary of State of the State of Delaware and any other
certificates, notices,
statements or other instruments (and any amendments or restatements
thereof)
necessary or advisable for the formation of the Partnership or the
operation of
the Partnership in all jurisdictions where the Partnership may
elect to do
business.
Section 14.08. Admission of Limited Partners. Each of the Limited
Partners
whose names appear on Schedule I shall be admitted to the
Partnership on the
date hereof as a Limited Partner (and shall be shown as such on the
books and
records of the Partnership) upon the execution and delivery by (or,
pursuant to
a power-of-attorney, on behalf of) such Limited Partner and the
General Partner
of counterparts of this Agreement.
Section 14.09. Subsequent Admission of Limited Partners. (a) At any
time,
the General Partner may cause the Partnership to admit additional
Persons as
Limited Partners; provided that no Person may be admitted to the
Partnership if,
as a result of such admission, the Partnership or any of the Funds
would not be
exempt from the provisions of the Investment Company Act. Such
Person shall
become a Limited Partner (and shall be shown as such on the books
and records of
the Partnership) upon execution and delivery by (or, pursuant to a
power-of-attorney, on behalf of) such Person and the General
Partner of
counterparts of this Agreement. The admission of any additional
Limited Partner
to the Partnership pursuant to this Section 1.09 shall not require
the approval
of any Limited Partner existing immediately prior to such
admission.
(a)
The Limited Partners shall share in distributions or items of
income or gain of the Partnership attributable to any Fund
Investment made prior
to the date such Person becomes a Limited Partner to the extent set
forth in
Articles 3 and 6.
(b)
No additional Limited Partner shall be admitted to the Partnership
if the admission of such Limited Partner would, in the judgment of
the General
Partner (i) jeopardize the status of the Partnership as a
partnership for United
States federal income tax purposes, (ii) cause a dissolution of the
Partnership
under the Delaware Act, (iii) cause the Partnership's assets to be
deemed "plan
assets" for purposes of ERISA, (iv) cause the Partnership to be an
"investment
company" within the meaning of the Investment Company Act (except
for purposes
of Section 12(d)(1) thereunder), (v) cause the Partnership to be in
violation of
the Advisers Act or (vi) violate, or cause the Partnership to
violate, any
applicable law or regulation, including any applicable federal or
state
securities laws.
3
(c)
Notwithstanding anything herein to the contrary, each Partner
hereby approves of any amendment of this Agreement and of the
Certificate of
Limited Partnership necessary to effect the admission of any Person
as a Partner
pursuant to Section 1.08 or this Section 1.09 or Article 10. Any
amendment to
this Agreement permitted under this paragraph (d) may be executed
by the
General Partner on behalf of each other Partner pursuant to the
Power of
Attorney given by each other Partner to the General Partner
pursuant to Section
12.08.
ARTICLE 15
GOVERNANCE; MANAGEMENT AND OPERATIONS OF THE PARTNERSHIP
Section 15.01. Management of the Partnership. The business and
affairs of
the Partnership shall be managed by and under the direction of the
General
Partner. Except as otherwise expressly provided herein, the General
Partner
shall have complete and exclusive discretion in the management and
control of
the affairs and business of the Partnership, and shall possess all
powers
necessary, convenient or appropriate to carrying out the purposes
and business
of the Partnership and to perform all acts and enter into and
perform all
contracts and other undertakings that it may deem necessary or
advisable or
incidental thereto, including doing all things and taking all
actions necessary
to carry out the terms and provisions of this Agreement (and is
hereby
authorized and directed, on behalf of the Partnership, to do all
such things and
to take all such actions without any further act, vote, consent or
approval of
any Partner). Except as otherwise expressly provided herein, the
General Partner
may delegate such general or specific authority to officers,
Limited Partners,
employees or agents of the Partnership as the General Partner
considers
desirable from time to time, and such officers, Limited Partners,
employees or
agents of the Partnership may, subject to any restraints or
limitations imposed
by the General Partner, exercise the authority granted to them.
Section 15.02. Powers of the General Partner. Without limiting the
generality of the authority of the General Partner set forth in
Section 2.01,
the General Partner hereby is authorized and empowered in the name
and on behalf
of the Partnership and to the extent applicable and permitted under
this
Agreement and the Fund Partnership Agreements:
(a)
to serve as the general partner of the Funds;
(b)
to acquire and hold the Partnership's general partner interest in
the Funds, and to sell, transfer, exchange, or otherwise dispose of
such
interests, and otherwise to exercise all rights, powers,
privileges, options and
other incidents of ownership or possession with respect to such
interests or any
other assets or property held or owned by the Partnership or the
Funds;
4
(c)
to employ attorneys and accountants of the Partnership, which
attorneys and accountants may also serve as counsel and auditors to
the Funds or
any of their respective Affiliates;
(d)
to deposit the funds of the Partnership in the Partnership name in
any bank or trust company and to entrust to any such bank or trust
company any
of the securities, monies, documents and papers belonging to or
relating to the
Partnership, or to deposit in and entrust to any brokerage firm
that is a member
of any national securities exchange any of said funds, securities,
monies,
documents and papers;
(e)
to set aside funds for reasonable reserves, reasonably anticipated
contingencies and reasonable working capital in the Partnership and
the Funds;
(f)
to make such elections under the Code and other relevant tax laws
as to the treatment of items of Partnership income, gain, loss and
deduction,
and as to all other relevant matters, as the General Partner deems
necessary,
appropriate or advisable, including elections referred to in
Section 754 of the
Code, and a determination of which items of cash outlay are to be
capitalized or
treated as current expenses;
(g)
to sue, prosecute, settle or compromise all claims against third
parties, to compromise, settle or accept judgment in respect of
claims against
the Partnership and to execute all documents and make all
representations,
admissions and waivers in connection therewith;
(h)
to enter into, make and perform all contracts, agreements,
instruments and other undertakings as the General Partner may
determine to be
necessary, advisable or incidental to carrying out of the objects
and purposes
of the Partnership;
(i)
to cause the execution and delivery of such documents and
performance of such acts consistent with the terms of this
Agreement as may be
necessary to comply with the requirements of law for the formation,
qualification and operation of a limited partnership under the laws
of each
jurisdiction in which the General Partner determines it is
necessary or
advisable for the Partnership to conduct business; and
(j)
to do and perform everything that may be necessary, advisable,
suitable or proper for the conduct of the Partnership's business
for the
carrying out of the purposes and objects hereinbefore enumerated,
including the
delegation to any Person or Persons of such functions and
authorities as the
General Partner may determine.
Any Person not a party to this Agreement dealing with the
Partnership shall be
entitled to rely conclusively upon the power and authority of the
General
Partner
5
to bind the Partnership in all respects, and to authorize the
execution of any
and all agreements, instruments and other writings on behalf of and
in the name
of the Partnership as and to the extent set forth in this
Agreement.
Notwithstanding any other provision of this Agreement, the
Partnership, and the
General Partner on behalf of the Partnership, may execute, deliver
and perform
the Fund Partnership Agreements, subscription agreements with the
limited
partners of the Funds, the Management Agreement among Greenhill
Venture
Partners, LLC and each Fund, any agreements to induce a Person to
purchase
interests in the Funds, any amendments to such documents, and all
documents
related thereto and contemplated thereby, all without any further
act, vote or
approval of any Partner or other Person. The General Partner is
hereby
authorized to enter into and perform on behalf of the Partnership
the documents
described in the immediately preceding sentence, but such
authorization shall
not be deemed a restriction on the power of the General Partner to
enter into
other documents on behalf of the Partnership (subject to any other
restrictions
expressly set forth in this Agreement).
Section 15.03. Investment Committee. (a) The General Partner will
establish an Investment Committee of the General Partner to
evaluate and discuss
potential investments and to review the performance of existing
investments of
the Funds.
(a)
Each Limited Partner who is a member of the Investment Committee
of the General Partner agrees, in consideration for sharing in the
Carried
Interest Points hereunder, to participate in meetings of the
Investment
Committee and, in connection with his role on the Investment
Committee, to
provide the Partnership with the benefit of his knowledge and
judgment in the
decision-making process with respect to the acquisition and
disposition of
Investments by the Funds. Each Limited Partner who is not a member
of the
Investment Committee agrees, at the request of the Investment
Committee, to
provide the Partnership with the benefit of his knowledge and
judgment in order
to assist the Investment Committee in its evaluation with respect
to the
acquisition and disposition of Investments.
(b)
Notwithstanding anything to the contrary contained herein, the
members of the Investment Committee shall not be deemed to be
participating in
the control of the business of the Partnership within the meaning
of the
Delaware Act as a result of any actions taken by the Investment
Committee or any
member of the Investment Committee.
(c)
Notwithstanding anything to the contrary contained in this
Agreement, in no event shall a member of the Investment Committee
be considered
a general partner of the Partnership by agreement, estoppel, as a
result of the
performance of its duties, or otherwise.
6
Section 15.04. Transactions with Affiliates. To the extent
permitted by
applicable law, the Partnership is hereby authorized to purchase
property,
securities, options or other assets from, sell property,
securities, options or
other assets to, borrow funds from, or otherwise deal with,
Greenhill, any
Affiliate of Greenhill, any Person in which a Fund Investment has
been or is
proposed to be made, any Person having an interest in such Fund
Investment (or
any underlying assets) or any Affiliate of any such Persons;
provided that any
such dealing (A) shall be on terms no less favorable to the
Partnership than
would be available from unaffiliated Persons and (B) shall not
otherwise be in
violation of this Agreement. In connection with any services
performed by any
Affiliate of Greenhill for the Partnership, such Affiliate shall be
entitled to
be compensated by the Partnership for such services to the extent
such
compensation is a Partnership Expense, and the amount of such
compensation shall
be determined by the General Partner in its discretion; provided
that such
compensation at any time shall not exceed the amount such Affiliate
would
customarily receive from third parties as compensation at such time
for the
performance of similar services. Each Limited Partner acknowledges
and agrees
that the purchase or sale of property or other assets, the
performance of
services, other dealings or the receipt of compensation may give
rise to
conflicts of interest between the Partnership and the Limited
Partners, on the
one hand, and Greenhill or any Affiliate of Greenhill, on the other
hand.
Section 15.05. Other Activities. Nothing contained in this
Agreement shall
be deemed to prohibit or otherwise limit any Partner (or Affiliate
thereof) from
entering into transactions with the Partnership, making investments
in Persons
or assets in which Fund Investments have been or are proposed to be
made, in
Persons having an interest in such Fund Investments (or any
underlying assets)
or in any Affiliates of any such Persons or providing financing to
any such
Person.
Section 15.06. Books and Records; Accounting Method; Fiscal Year.
(a) The
Partnership shall keep or cause to be kept at the address of the
Partnership (or
at such other place as shall be notified to the Limited Partners in
writing)
full and accurate books and records of the Partnership. Each
Limited Partner
shall be shown as a Limited Partner on such books and records.
Subject to
Sections 2.06(b) and 3.06, such books and records shall be
available, upon 10
Business Days' notice to the General Partner, for inspection at the
offices of
the Partnership at reasonable times during business hours on any
Business Day by
each Limited Partner or his duly authorized agents or
representatives for a
purpose reasonably related to such Limited Partner's interest as a
Limited
Partner.
(a)
Each Limited Partner agrees that (i) the books and records of the
Partnership contain confidential information relating to the
Partnership and its
affairs and (ii) except for information otherwise required to be
provided or
made available to Limited Partners pursuant to this Agreement, the
General
Partner
7
may, to the maximum extent permitted by applicable law, keep
confidential from
the Limited Partners any information (excluding any financial
statements of the
Partnership and underlying documentation supporting such financial
statements)
the disclosure of which the General Partner reasonably believes is
adverse to
the interests of the Partnership (including information relating to
any Fund
Investment or underlying assets or any Person that is, directly or
indirectly,
the subject of any Fund Investment) or which the Partnership,
Greenhill or the
General Partner is required by law, agreement or otherwise to keep
confidential.
(b)
Except as otherwise provided in this Agreement, the Partnership's
books of account shall be kept on the same basis followed by the
Partnership for
federal income tax purposes.
Section 15.07. Partnership for Tax Purposes; Partnership Tax
Returns. (a)
The Partners agree that it is their intention that the Partnership
shall be
treated as a partnership for purposes of United States federal,
state and local
income tax laws, and further agree not to take any position or make
any
election, in a tax return or otherwise, inconsistent therewith. In
furtherance
of the foregoing, the Partnership will file an information return
as a
partnership for United States federal income tax purposes. If a
change in
applicable law (including a revenue ruling, revenue procedure or
other
administrative pronouncement) would cause the Partnership not to be
treated as a
partnership for United States federal income tax purposes, the
Partners shall
endeavor in good faith to reach an agreement on restructuring the
Partnership so
that it will be so treated (which may, subject to the following
proviso, entail
a merger of the Partnership into an entity treated as a partnership
for federal
income tax purposes); provided that no Limited Partner shall be
required to
agree to any restructuring that it reasonably determines would have
an adverse
effect on the assets, properties, business or condition of, or
otherwise would
be adverse to the interests of or cause the incurrence of any
material
expenditure by, such Limited Partner or any Affiliate of such
Limited Partner.
(a)
The General Partner shall cause to be prepared and timely filed
all tax returns required to be filed for the Partnership. Subject
to paragraph
y(a) above, the General Partner may, in its discretion, make, or
refrain from
making, any federal, state or local income or other tax elections
for the
Partnership that it deems necessary or advisable, including an
election pursuant
to Code Section 754.
(b)
The General Partner is hereby designated as the Partnership's "TAX
MATTERS PARTNER" under Code Section 6231(a)(7). The Tax Matters
Partner is
specifically directed and authorized to take whatever steps the
General Partner,
in its discretion, deems necessary or desirable to perfect such
designation,
including filing any forms or documents with the Internal Revenue
Service and
taking such other action as may from time to time be required under
Treasury
regulations.
8
Expenses incurred by the Tax Matters Partner, in its capacity as
such, will be
Partnership Expenses. Any Limited Partner shall have the right to
participate in
any administrative proceedings relating to the determination of
Partnership
items at the Partnership level. Each Limited Partner that elects to
participate
in such proceedings shall be responsible for any expenses incurred
by such
Limited Partner in connection with such participation. Further, a
Limited
Partner shall notify the Tax Matters Partner in a timely manner of
its intention
to: (i) file a notice of inconsistent treatment under Code Section
6222(b); (ii)
file a request for administrative adjustment of Partnership items;
(iii) file a
petition with respect to any Partnership item or other tax matters
involving the
Partnership or (iv) enter into a settlement agreement with the
Secretary of the
Treasury with respect to any Partnership items. Upon any such
notification, the
Tax Matters Partner may, if it agrees with the Limited Partner's
position, elect
(at its discretion) to make such filing or enter into such
agreement, as
applicable and practicable, on behalf of the Partnership. The
expenses in
connection with any resulting audits or adjustments of a Limited
Partner's tax
return shall be borne solely by the affected Limited Partner.
(c)
The General Partner may, in its discretion, take appropriate steps
on behalf of the Partnership that it deems necessary or advisable
to comply with
the laws of non-U.S. jurisdictions.
Section 15.08. Confidentiality. (a) Each Limited Partner agrees to
keep
confidential, and not to make any use of (other than for purposes
reasonably
related to his interest in the Partnership or for purposes of
filing such
Limited Partner's tax returns or for other routine matters required
by law) nor
to disclose to any Person (other than to appropriate employees of
Greenhill or
its Affiliates associated with the business of the Partnership),
any Proprietary
Information or any other information or matter relating to the
Partnership or
any Fund and its respective affairs or to any Partnership or Fund
Investment
(other than disclosure to employees, agents, advisors, or
representatives of the
Partnership responsible for matters relating to the Partnership
(each such
Person being hereinafter referred to as an "AUTHORIZED
REPRESENTATIVE"));
provided that such Limited Partner and such Authorized
Representatives may make
such disclosure to the extent that (i) the information being
disclosed is
publicly known at the time of proposed disclosure by such Limited
Partner or
Authorized Representative, (ii) the information subsequently
becomes publicly
known through no act or omission of such Limited Partner or
Authorized
Representative, (iii) such disclosure, in the written opinion of
legal counsel
of such Limited Partner reasonably acceptable to the General
Partner, is
required by law or regulation or by any regulatory authority or
self-regulatory
organization having jurisdiction over such Limited Partner or (iv)
such
disclosure is approved in advance by the General Partner. Prior to
making any
disclosure required by law, regulation, regulatory authority or
self-regulatory
organization, each Limited Partner shall notify the General Partner
of such
disclosure and deliver to the General Partner the opinion referred
to
9
above. Prior to any disclosure to any Authorized Representative,
each Limited
Partner shall advise such Authorized Representative of the
obligations set forth
in this Section 2.08(a) and obtain the agreement of such Person to
be bound by
the terms of such obligation.
(a)
The obligations of each Limited Partner under this Section 2.08
shall survive for a period of five years after the date such
Limited Partner
ceases to be a Limited Partner. If the Partnership is dissolved,
the obligation
of each Limited Partner under this Section 2.08 who is a Limited
Partner at the
time of such dissolution shall survive for a period of five years
thereafter.
(b)
Notwithstanding any other provision of this Agreement, any Limited
Partner (and each of its employees, representatives or other
agents) may
disclose to any and all Persons, without limitation of any kind,
the tax
treatment and tax structure of the Partnership and the
Partnership's investments
and all materials of any kind (including opinions or other tax
analyses) that
are provided to such Limited Partner relating to such tax treatment
or tax
structure; provided that the foregoing does not (except to the
extent necessary
to permit any Limited Partner to claim any available treaty
benefits) constitute
an authorization to disclose information identifying the
Partnership, the
Limited Partners, the General Partner or any parties to
transactions engaged in
by the Partnership or (except to the extent relating to such tax
structure or
tax treatment) any nonpublic commercial or financial information.
(c)
Each party acknowledges and agrees that the covenants contained in
this Section 2.08 have been negotiated in good faith by the parties
hereto, are
reasonable and are not more restrictive or broader than are
necessary to protect
the interests of the Limited Partners and the Partnership, and
would not achieve
their intended purpose if they were on different terms or for
periods of time
shorter than the periods of time provided herein. Each party
further
acknowledges and agrees that the business of the Partnership and
the Funds is
highly competitive, that no party hereto would enter into this
Agreement but for
the covenants contained in this Section 2.08 and that such
covenants are
essential to protect the value of the business of the Partnership
and the Funds.
(d)
Track Record Information.
(i)
Notwithstanding the other provisions of this Section
2.08, each member or former member of the Investment Committee (a
"REQUESTING PARTNER") shall, following termination of such
employment with
Greenhill Group, be entitled to receive Partnership information
reasonably
necessary to establish such Person's investment track record for
purposes
of seeking employment or soliciting investment capital from third
parties
(e.g., in connection with organizing a new investment fund), and
may
disclose such information to a prospective employer or to
10
prospective investors pursuant to a securities offering that does
not give
rise to a registration requirement under Section 5 of the
Securities Act
or any similar requirement under the securities laws of a State or
foreign
country; provided, however, that, except as otherwise approved by
the
General Partner in its reasonable discretion, information to be
provided
or disclosed under this Section 2.08(e) shall exclude Portfolio
Company
valuation information and other similar information the disclosure
or use
of which would present a material risk of harm to Greenhill, the
General
Partner, the Partnership, a Fund, or a Portfolio Company. In the
event
that a Requesting Partner is prohibited, under the proviso of the
preceding sentence, from receiving or disclosing Portfolio Company
valuation information, such Requesting Partner shall be entitled to
require that the Company provide to such Requesting Partner (not
more
often than once per fiscal year of the Partnership) a single "IRR"
or
similar rate of return number that, on an aggregate basis, reflects
the
performance of all investments that were consummated while such
Requesting
Partner was a member of the Investment Committee, as reasonably
calculated
by the General Partner. Such number may thereafter be disclosed by
such
Requesting Partner in the manner described in the first sentence of
this
paragraph. A Requesting Partner shall pay the reasonable costs and
expenses of the General Partner relating to the delivery of
information
requested hereunder.
(ii)
Under no circumstances shall Greenhill, the General
Partner, the Partnership, any Fund, any Portfolio Company, or any
other
Partner have any liability of any type with respect to information
that is
provided to, or used or disclosed by, a Limited Partner or former
Limited
Partner pursuant to this Section 2.08(e). Without limitation on the
preceding sentence, Greenhill, the General Partner, the
Partnership, the
Funds, the Portfolio Companies, and the other Partners shall not
have any
liability in respect of the inaccuracy or incompleteness of any
such
information that is disclosed by a Requesting Partner in connection
with
the organization of a new investment fund and shall not be deemed
to have
any duties to the Persons investing in such fund. Except as
otherwise
approved by the General Partner (which approval may be withheld by
the
General Partner in its sole and absolute discretion), a Requesting
Partner
shall not claim, assert or report to any third party that any
information
provided or disclosed pursuant to this Section 2.08(e) has been
certified,
validated or otherwise guaranteed as to accuracy or completeness by
Greenhill, the General Partner, the Partnership, any Fund, any
Portfolio
Company or any other Partner.
Section 15.09. Investment of Funds. Cash held by the Partnership,
including all amounts being held by the Partnership for future
investment in
Fund Investments, payment of expenses or distributions to Limited
Partners may
be
11
invested in such instruments as the General Partner, or any Person
which it has
retained to manage such cash, in its discretion deems appropriate.
Section 15.10. Other Authority. The General Partner agrees to use
its best
efforts to operate the Partnership in such a way that (i) the
Partnership would
be exempt from the provisions of the Investment Company Act, (ii)
none of the
Partnership's assets would be deemed to be "plan assets" for
purposes of Section
4975 of the Code or ERISA, (iii) the Partnership would be in
compliance with the
Advisers Act, and (iv) the Partnership would be in compliance with
any other
material law, regulation, order or guideline applicable to the
Partnership. The
General Partner is hereby authorized to take any action it has
determined in
good faith to be necessary or desirable in order for (i) the
Partnership's
assets not to be "plan assets" for purposes of ERISA, (ii) the
Partnership to be
exempt from the provisions of the Investment Company Act, (iii) the
Partnership
not to be in violation of the Advisers Act and (iv) the Partnership
not to be in
violation of any other material law, regulation, order or guideline
applicable
to the Partnership, including, in each case, (x) making any
structural,
operating or other changes in the Partnership by amending this
Agreement, (y)
requiring the sale in whole or in part of a Limited Partner's
limited partner
interest in the Partnership with respect to or as a result of whom
such
violation arose, or otherwise causing the withdrawal of such
Limited Partner
from the Partnership or (z) dissolving the Partnership. Any action
taken by the
General Partner pursuant to Section 2.10 shall not require the
approval of any
Limited Partner.
ARTICLE 16
CARRIED INTEREST POINTS; CERTAIN OTHER MATTERS
Section 16.01. General Provisions. (a) The General Partner shall be
solely
responsible for making all determinations as to the Carried
Interest Points,
which determinations shall be made in accordance with this Article
3.
(a)
Neither the General Partner nor any of its Affiliates shall be
liable to the Partnership or the Limited Partners for anything
whatsoever in
connection with this Agreement except for the gross negligence or
willful
misconduct of the General Partner or its Affiliates. In the
performance of their
functions with respect to this Agreement, the General Partner and
its Affiliates
shall be entitled to rely upon information and advice furnished by
officers,
accountants or legal counsel of Greenhill or its Affiliates, or by
any other
party the General Partner deems necessary or appropriate as to
matters the
General Partner reasonably believes are within such other person's
professional
or expert competence and who has been selected with reasonable care
by or on
behalf of the Partnership, and the General Partner and its
Affiliates shall not
be liable to the Partnership or the Limited Partners for any action
taken or not
taken in good faith reliance upon any such advice. The General
Partner may
delegate such of its responsibilities
12
hereunder as the General Partner deems appropriate to one or more
officers or
directors of Greenhill or its Affiliates and in performing such
delegated
responsibilities, such persons shall have the benefit of all the
protections
afforded the General Partner under this Agreement.
Section 16.02. Assignment of Carried Interest Points. (a) On or
prior to
January 1 of each fiscal year, commencing in 2007, or as soon as
practicable
thereafter (the "ANNUAL ALLOCATION DATE"), the General Partner
shall assign each
Partner (including the General Partner) a number (which may include
fractional
numbers or may be zero) of carried interest points (the "CARRIED
INTEREST
POINTS") for all Fund Investments made by all Funds during the
fiscal year
commencing on such January 1 (the "CARRIED INTEREST ANNUAL POOL").
The aggregate
number of Carried Interest Points for any Fund Investment shall be
20, and the
amount of the Carried Interest with respect to each Fund Investment
for such
fiscal year allocated to a Partner shall be calculated by
multiplying the
Carried Interest by a fraction, the numerator of which shall be the
number of
points so assigned and the denominator of which shall be 20. Each
Carry
Participating Partner's share of the Carried Interest for any Fund
Investment is
referred to herein as his "CARRIED INTEREST SHARE".
(a)
Carried Interest Points shall be awarded in accordance with the
following:
(i)
50% of the Carried Interest Points for each Fund
Investment shall be awarded to the General Partner; and
(ii)
50% of the Carried Interest Points for each Fund
Investment shall be awarded to the SAVP Partners (the "SAVP CARRIED
INTEREST POINTS") in such a manner and at such times as may be
recommended
by the Co-Chairmen, subject to the approval of each GHL Investment
Committee Member (provided that, if no such approval is obtained,
then
Brotman and Hirsch will be entitled to receive the same Carried
Interest
Points as were awarded for the prior fiscal year).
With respect to each Fund Investment made during the 2006 fiscal
year and
with respect to Partners who have been admitted as such on the date
of this
Agreement, the Carried Interest Points shall be set forth in
Schedule I to this
Agreement with respect to such Partner (the "ALLOCATION SCHEDULE"),
which shall
be maintained by the General Partner and the Partnership and
updated to reflect
any changes in the allocation of Carried Interest Points. The
General Partner
shall advise each Partner of such Partner's Carried Interest Points
in effect at
any time, and the General Partner may, in its discretion, to the
maximum extent
permitted by applicable law, decline to disclose such Carried
Interest Points to
any other Person. With respect to each Fund Investment made during
any fiscal
year, the Carried Interest Points (as determined in accordance with
this
ySection 3.02(a) or
13
adjusted in accordance with this Article 3) of each Partner having
an interest
in such Fund Investment shall be set forth in the Allocation
Schedule. Except as
otherwise provided in this Article 3, such Carried Interest Points
shall not be
changed after they are determined in accordance with this Section
3.02(a).
(b)
The General Partner may award Carried Interest Points to newly
admitted Partners and may award additional Carried Interest Points
to existing
Partners at any time during the course of a fiscal year. In making
such award
the General Partner may, in its discretion, determine whether the
Carried
Interest Points assigned to such Person shall be calculated as if
such Person
was admitted as a Partner on the date such award was determined or
any other
date or in any other manner that the General Partner in its
discretion shall
determine is appropriate in light of the circumstances giving rise
to such
determination. Such awards shall be made either from Reserved
Carried Interest
Points, from Reallocated Carried Interest Points, from Forfeited
Carried
Interest Points or through a reallocation of Carried Interest
Points as provided
in Section 3.03.
(c)
Notwithstanding anything in this Agreement to the contrary, the
General Partner may, in its discretion, elect to reserve a portion
of the SAVP
Carried Interest Points for allocation at any time during the
period ending on
January 31 of the fiscal year next succeeding the fiscal year for
which an
allocation of SAVP Carried Interest Points has been made to any
SAVP Partner
(the "RESERVED SAVP CARRIED INTEREST POINTS"). During any fiscal
year, all
Reserved SAVP Carried Interest Points with respect to the Fund
Investments made
during such fiscal year shall be initially allocated to the General
Partner.
From time to time during each fiscal year, the General Partner will
assign such
Reserved SAVP Carried Interest Points to SAVP Partners, pursuant to
an
Assignment of Carried Interest Points as provided in Schedule II
(either for an
annual basis or an investment by investment basis) and the
Allocation Schedule
shall be revised accordingly to reflect such award. If the Reserved
SAVP Carried
Interest Points have not been so allocated by January 31 of the
next succeeding
fiscal year, they shall be allocated pro rata among the SAVP
Partners based on
each SAVP Partner's Carried Interest Share (as determined for the
fiscal year in
which the Carried Interest Points were reserved) in the relevant
Fund
Investments.
(d)
If any Carried Interest Points awarded to any SAVP Partner are
later surrendered or forfeited by such Partner or otherwise reduced
in
accordance with this Article 3, such surrendered, forfeited or
reduced Carried
Interest Points shall, unless otherwise allocated pursuant to
Section 3.02(c)
or as otherwise determined by the General Partner in its
discretion, be
reallocated to the other SAVP Partners on a pro rata basis in
accordance with
their Carried Interest Share in the relevant Fund Investments.
Section 16.03. Pro Rata Dilution. Initially, the Carried Interest
Points
for the Carried Interest Annual Pool for 2006 will be allocated as
set forth in
14
Schedule I. During any fiscal year of the Partnership, the General
Partner
may determine to award Carried Interest Points to a Limited Partner
that do not
come from Reserved Carried Interest Points, from Reallocated
Carried Interest
Points or from Forfeited Carried Interest Points, and in such case
the Carried
Interest Points so awarded shall dilute the other Partners in
proportion to
their respective Carried Interest Points for such fiscal year;
provided,
however, that: (i) the General Partner shall not award Carried
Interest Points
pursuant to this sentence for any fiscal year other than the fiscal
year in
which such award is made; and (ii) the Carried Interest Points of
an SAVP
Partner shall not be diluted pursuant to this sentence except in
consequence of
awards of Carried Interest Points to SAVP Partners.
Section 16.04. No Right to Awards or Continued Employment. No
Partner
shall have any claim or right to receive any award of Carried
Interest Points
hereunder. Neither this Agreement nor any action taken or omitted
to be taken
hereunder shall be deemed to create or confer on any Partner any
right (i) to be
retained in the employ of Greenhill Group or any Affiliate thereof
or (ii) to
interfere with or to limit in any way the right of Greenhill Group
or any
Affiliate thereof to terminate the employment of such Partner at
any time or to
transfer his or her employment within Greenhill Group or any
Affiliate thereof
to other activities from time to time.
Section 16.05. Effect of Termination of Employment. (a) A Limited
Partner
whose employment with Greenhill Group terminates for any reason
shall
automatically (without any action being required on the part of the
Partnership
or any Limited Partner) and immediately become a "SPECIAL LIMITED
PARTNER". Upon
becoming a Special Limited Partner, (i) such Limited Partner shall
no longer
receive any new awards of Carried Interest Points with respect to
any Fund
Investments and (ii) such Limited Partner's Carried Interest Points
theretofore
awarded may be reduced, eliminated or forfeited in accordance with
this Section
3.05. Upon the complete liquidation of all Fund Investments in
which a Special
Limited Partner is a participant, such Special Limited Partner (i)
shall cease
to be a Partner of the Partnership and (ii) shall not be entitled
to any further
distributions of Carried Interest under this Agreement.
(a)
Subject to Section 3.05(d), with respect to any Limited Partner
who becomes a Special Limited Partner and any Fund Investment in
which such
Limited Partner has an interest prior to becoming a Special Limited
Partner,
such Limited Partner shall continue to hold his or her Carried
Interest Points
theretofore awarded with respect to such Fund Investment and shall
be entitled
to such Limited Partner's Carried Interest Share of such Fund
Investment without
reduction if such Limited Partner becomes a Special Limited Partner
as a result
of (i) termination of employment due to permanent disability (as
determined by
the General Partner and Greenhill), (ii) subject to Section
3.06(a),
termination of employment due to death, (iii) Retirement (iv)
termination of
employment by
15
Greenhill without Cause (as determined by the General Partner in
its sole
discretion) within two years following the occurrence of a Change
in Control or
upon a termination of employment by Greenhill without Cause (as
determined by
the General Partner in its sole discretion) six months prior to the
occurrence
of a Change in Control if the General Partner reasonably determines
in its sole
discretion that such termination was at the behest of the acquiring
entity, (v)
Constructive Discharge or (vi) any other exception determined by
the General
Partner.
(b)
Subject to Section 3.05(d), with respect to any Limited Partner
who becomes a Special Limited Partner as a result of the
termination of
employment for any reason other than as specified in Section
3.05(b) (a
"FORFEITURE EVENT"), and any Fund Investment in which such Limited
Partner has
an interest prior to becoming a Special Limited Partner, such
Limited Partner's
Carried Interest Share of such Fund Investment shall be vested and
become
non-forfeitable as follows:
(i)
with respect to 25% of his Carried Interest Share
attributable to a Fund Investment made in any given fiscal year on
January
1 of the year following the year such Fund Investment was made;
(ii)
with respect to 50% of his Carried Interest Share
attributable to such Fund Investment on January 1 of the second
year
following the year such Fund Investment was made;
(iii)
with respect to 75% of his Carried Interest Share
attributable to such Fund Investment on January 1 of the third year
following the year such Fund Investment was made;
(iv)
with respect to 100% of his Carried Interest Share
attributable to such Fund Investment on January 1 of the fourth
year
following the year such Fund Investment was made;
provided that a Limited Partner will be vested with respect to 100%
of his
Carried Interest Share attributable to a Fund Investment which is
realized prior
to the date on which he becomes a Special Limited Partner. Limited
Partners
shall be "PARTIALLY REDUCED PARTNERS" with respect to the unvested
portion of
their Carried Interest Share forfeited in accordance with this
Section
3.05y(c). The unvested portion of the Carried Interest Share of
each Special
Limited Partner shall be forfeited on the date of termination of
employment and
shall be reallocated as provided in Section 3.02(e). The number of
Carried
Interest Points so forfeited, derived by application of the
foregoing
percentages to such Carry Participating Partner's Carried Interest
Points in a
Carried Interest Annual Pool, is hereinafter referred to as the
"FORFEITED
CARRIED INTEREST POINTS", and the vested number of Carried Interest
Points at
such time, derived by application of the foregoing percentages to
such Carry
Participating Partner's Carried Interest Points
16
in such Carried Interest Annual Pool, is hereinafter referred to as
the "VESTED
CARRIED INTEREST POINTS".
(c)
Upon the occurrence of an Elimination Event with respect
to any Limited Partner who becomes a Special Limited Partner (a
"FULLY REDUCED
PARTNER"), all of such Limited Partner's Carried Interest Points
with respect to
such Fund Investment and any Proceeds with respect to any Fund
Investment that
otherwise has been or could be allocated to such Limited Partner at
any time
after such Limited Partner becomes a Special Limited Partner shall
be forfeited
and shall be reallocated to other Limited Partners as provided in
Section
3.02(e).
For purposes of this Agreement, the term "ELIMINATION EVENT" means,
with
respect to any Limited Partner at any time, (i) the termination of
such Limited
Partner's employment with Greenhill Group for Cause (or the
termination of such
Limited Partner's employment with Greenhill Group for any reason
and, within 180
days following such termination, the General Partner or Greenhill
determines
that circumstances existed during such Limited Partner's employment
with
Greenhill Group which w
