Agreement of Limited Partnership - 1999 Internet Capital LP
1999 INTERNET CAPITAL L.P.
AGREEMENT OF LIMITED PARTNERSHIP, effective as of March 1, 2000 (the
"Effective Date"), among ICG Holdings, Inc. ("General Partner"), and the persons
and/or entities identified on Exhibit II attached hereto as Limited Partners,
and such other persons as shall, from time to time, become limited partners as
provided herein (the "Limited Partners"). The General Partner and the Limited
Partners are sometimes referred to herein collectively as the "Partners" or
individually as a "Partner."
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
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Section 1.1. Formation. The Partners hereby form the Partnership pursuant
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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
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name 1999 Internet Capital L.P.
(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 103 The Springer Building, 3411 Silverside Road, Wilmington,
Delaware 19801, c/o Cindy Conner or such other place as may from time to time be
designated by the General Partner. The General Partner shall give prompt notice
of any such change to each Partner.
(c) The principal office of the Partnership shall be at 103
The Springer Building, 3411 Silverside Road, Wilmington, Delaware 19801, c/o
Cindy Conner or such other place as may from time to time be designated by the
General Partner. The General Partner shall give prompt notice of any such change
to each Partner.
Section 1.3. Purpose. The Partnership is being organized for the purpose of
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investing in Securities, to engage in such activities as may be permitted hereby
or are incidental hereto and for engaging in any and all lawful business
activities in which limited partnerships formed in the State of Delaware under
the Act may participate.
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Section 1.4. Powers. In furtherance of the purpose of the Partnership as
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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
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force and effect indefinitely until the Partnership is dissolved pursuant to the
provisions of Article VII.
ARTICLE II
Limited Partners
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Section 2.1. Initial Limited Partners. The initial Limited Partners are
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listed on Exhibit II 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
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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 discretion of the General Partner. Each additional Limited
Partner so admitted to this Partnership shall be bound by all the provisions of
this Agreement. Following an amendment pursuant to Article VIII, the General
Partner is authorized to revise this Agreement as appropriate and, if required
by the Act, to file amendments to the Certificate of Limited Partnership from
time to time.
Section 2.3. Liability of Limited Partners. Except as otherwise provided
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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
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Section 3.1. Contribution of General Partner. The General Partner shall
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contribute in cash or Securities in respect of its interest in the Partnership
in 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. Upon admission to the
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Partnership, each Limited Partner shall make an initial Capital Contribution in
an amount equal to the product of one thousand dollars ($1,000) and such Limited
Partner's Profit Percentage, which amount shall be credited to such Limited
Partner's Capital Account. 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
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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
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Section 4.1. Management of Partnership. The General Partner shall have sole
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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. All
decisions with respect to Securities including, without limitation, the
investment or reinvestment, holding, disposition, distribution to Partners or
any similar investment-related decisions will be made solely by the General
Partner. The General Partner may delegate responsibility over any right or
obligation to any of the General Partner's agents or representatives as the
General Partner in its sole discretion, deems appropriate. 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
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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
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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.
Section 4.4. Liabilities of the General Partner. The General Partner shall
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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, 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.
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Section 4.5. Indemnification.
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(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 invested, 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) 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 (i) an undertaking by the Indemnified Party to repay such payment if
there is a final determination that he is not entitled to indemnification as
provided herein and (ii) satisfactory evidence that the Indemnified Party has
sufficient financial resources to satisfy any such undertaking.
(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 provided aforesaid, 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 provided
aforesaid, or in favor of anyone other than Indemnified Parties; 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.
ARTICLE V
Capital Accounts; Allocations and Distributions
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Section 5.1. Capital Accounts.
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(a) There shall be established for each Partner a separate
Capital Account.
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Section 5.2. Allocations.
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(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 Investment Position shall be allocated as follows:
(A) First, one hundred percent (100%) to the
General Partner until (1) the cumulative amount of Net
Income from a particular Investment Position 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, derived from
such Investment Position and allocated pursuant to Section
5.2(a)(ii) for all prior Accounting Periods and (2) the
cumulative amount of Net Income allocated to the General
Partner pursuant to this Section 5.2(a)(i)(A)(2) equals
one hundred percent (100%) of the General Partner's
Threshold Amount minus its Equity Cost Basis in such
Investment Position.
(B) Second, one hundred percent (100%) to the Limited
Partners (to be divided among them pro rata in accordance
with their Vested Profit Percentages) until the Net
Profits allocated to them pursuant to this Section
5.2(a)(i)(B) is equal to the aggregate Limited Partners'
Vested Profit Percentages multiplied by the sum of (a) the
Equity Cost Basis and (b) the amount allocated pursuant to
this Section 5.2(a)(i)(B) and Section 5.2(a)(i)(A)(2)
above with respect to such Investment Position, and
(C) Third, pro rata among the Partners in
accordance with their Vested Profit Percentages.
(ii) Net Loss with respect to an Investment Position
shall first be allocated in a manner that reverses the allocated Net Income with
respect to such Investment 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.
(iii) Short-term Investment Income and Short-term
Investment Loss shall be allocated to the Partners in accordance with Capital
Percentages.
(b) Upon the admission of any additional Limited Partner
during 1999 or 2000, the General Partner shall assign a Profit Percentage to
such additional Limited Partner, which shall dilute the Profit Percentages of
the Limited Partners to the extent that the aggregate Profit Percentage of all
Limited Partners would otherwise exceed twelve percent (12%) and the schedule on
file with the General Partner recording the Limited Partners' Profit Percentages
shall be amended to reflect such new Profit Percentages.
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(c) The allocations agreed to be made pursuant to Section
5.2(a) hereto shall, for purposes of determining Capital Account balances, be
deemed allocated prior to a distribution in kind (giving effect to such
distribution in kind).
(d) 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; provided, that such
allocation must be in accordance with a method permissible under section 706 of
the Code and Treasury Regulations thereunder.
Section 5.3. Distributions.
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(a) Except as otherwise provided in this Section 5.3, from
time to time the General Partner shall cause the Partnership to distribute to
the Partners all or part of the Investment Assets, the proceeds from a
Disposition or Dispositions or other income and proceeds attributable to the
Partnership's interest in any of the Investment Positions. Any Investment 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 an
Investment Position, distributions shall be made among the Partners in the
following manner:
(i) First, the General Partner shall receive an amount
equal to the cumulative amount, if any, of the Net Loss with respect to the
Investment Position previously allocated to the General Partner;
(ii) Then:
(1) Each Limited Partner shall receive an amount
equal to such Limited Partner's Vested Profit Percentage in the balance of such
distribution; and
(2) The General Partner shall receive the balance.
(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.
(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
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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.
Section 5.4. Tax Withholdings. To the extent the Partnership is required by
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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.
Section 5.5. Special Allocation - Qualified Income Offset. In the event
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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
Partner in an amount and manner sufficient to eliminate, to the extent required
by the Treasury Regulations, the deficit Capital Account of such Partner as
quickly as possible, provided that an allocation pursuant to this Section 5.5
shall be made if and only to the extent that such Partner would have a deficit
Capital Account after all other allocations provided for in this Article V have
been tentatively made as if this Section 5.5 were not in this Agreement.
Section 5.6. Allocations for Tax Purposes.
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(a) Items of Partnership taxable income, gain, loss,
deduction, or credit shall be determined according to Code Section 703, and
except as otherwise required under Code Section 704 or the Treasury Regulations
promulgated thereunder, the Partners' distributive shares of each such item for
purposes of Code Section 702 shall be determined by allocating such item in the
same manner as its correlative item of "book" income, gain, loss, deduction or
credit has been allocated pursuant to this Agreement.
(b) Items of the Partnership's taxable income, gain and
deduction with respect to any property contributed to the capital of the
Partnership shall be allocated among the Partners in accordance with Code
Section 704(c) so as to take account of any variation between the adjusted basis
of such property to the Partnership for federal income tax purposes and its
Gross Asset Value using the traditional method of Treas. Reg. (S)1.704-2(b)(2).
(c) If the Gross Asset Value of a Partnership asset is
adjusted, subsequent allocations of items of taxable income, gain, loss, and
deduction with respect to such asset shall take account of the variation between
the adjusted basis of such asset for federal
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income tax purposes and its Gross Asset Value in the same manner as under Code
Section 704(c).
(d) Allocations pursuant to this Section 5.6 are solely for
purposes of federal, state and local taxes and shall not effect, or in any way
be taken into account in computing, a Partner's Capital Account or share of
income, gains, losses, deductions distributions or other Partnership items
pursuant to these provisions.
ARTICLE VI
Vesting Provisions
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Section 6.1. Vested Profit Percentage. For purposes of this Partnership,
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the term "Vested Profit Percentage" of a Limited Partner with respect to an
Investment Position shall be the product obtained by multiplying the following
three factors: (1) such Limited Partner's Profit Percentage, (2) the Threshold
Requirement Percentage applicable to such Investment Position, and (3) the
Performance Requirement Percentage applicable to all Investments Positions of
the Partnership.
Section 6.2. Determining the Profit Percentage. For purposes of determining
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a Limited Partner's Vested Profit Percentage, the term "Profit Percentage" shall
mean, with respect to any given Measurement Period, the percentage initially
established for each such Limited Partner in connection with the Limited
Partner's admission to the Partnership, which percentage shall be set forth in a
schedule on file with the General Partner, and which percentage may be adjusted
pursuant to this Agreement.
Section 6.3. Determining the Threshold Requirement Percentage. On the date
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of any distribution with respect to an Investment Position, the Threshold
Requirement shall be considered satisfied and the "Threshold Requirement
Percentage" shall equal one hundred percent if (i) in connection with the sale
or other disposition of such Investment Position the Threshold Amount with
respect to such Investment Position was reached as of the time of such sale or
disposition or (ii) in connection with a distribution in-kind of an Investment
Position the Threshold Amount has been reached for at least three (3) of the six
(6) immediately preceding calendar months, determined on the last business day
of each such month, prior to the date of such distribution; provided that, if
the Threshold Requirement would have been met with respect to an Investment
Position prior to the end of a calendar year of the Partnership, and the Board
does not make a contemporaneous determination of whether the Performance
Requirement would have been satisfied as of that point in time during the
calendar year, the Threshold Requirement shall be deemed to be satisfied as of
such later date that the Board determines whether the Performance Requirement
has been satisfied. For any Investment Position for which the Threshold
Requirement is not satisfied pursuant to the preceding sentence, the Threshold
Requirement Percentage shall equal zero (0).
Section 6.4. Determining the Performance Requirement Percentage.
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(a) With respect to all Investment Positions of the
Partnership on a given date, the Performance Requirement shall be considered
satisfied for the relevant Measurement Period if the Aggregate Return equals or
exceeds fifteen percent (15%) and the
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Performance Requirement Percentage shall therefore be equal to one hundred
percent (100%). If the Performance Requirement has not been satisfied, the
Performance Requirement Percentage shall equal zero (0).
(b) For purposes of this Section 6.4, the term "Measurement
Period" means the period beginning on the date hereof and ending (i) on the last
day of each calendar year beginning with the calendar year ended December 31,
2000 and (ii) such other date as the Board shall from time to time decide is
appropriate for determining whether the Performance Requirement has been
satisfied.
(c) As of a given date, each Investment Position shall be
valued as follows: (1) if an Investment Position has been sold or otherwise
disposed of prior to such date, the value of the consideration received by the
Partnership as a result of such sale or disposition, (2) in the event that no
such sale or disposition has occurred, if an Investment Position has received
third-party financing within the twelve month period prior to such date, the
value of the Investment Position determined in connection with such financing,
or (3) in the event that no such sale, disposition or financing has occurred,
the value of an Investment Position shall be determined by an independent
appraiser chosen in good faith by the General Partner.
(d) In determining whether the Performance Requirement has
been satisfied for any Measurement Period, the "Aggregate Return" shall mean the
weighted average percentage appreciation in the value of the Investment Assets
of the Partnership over such Measurement Period, taking into account the size of
each investment and the length of time held by the Partnership, expressed on an
annualized basis, without regard to compounding.
Section 6.5. Board Discretion. Notwithstanding that the Performance
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Requirement or the Threshold Requirement has not been satisfied in accordance
with the provisions of Section 6.3 or Section 6.4 as of any particular point in
time, the Board reserves the right to determine that such requirements have been
met in full or in part as of such time.
ARTICLE VII
Dissolution and Winding-Up of the Partnership;
Withdrawal and Removal of Partners
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Section 7.1. Events of Dissolution. The Partnership shall be dissolved, and
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its affairs wound up, upon the happening of any of the following events:
(a) the determination for any reason by the General Partner
that the Partnership should be dissolved and its affairs wound up;
(b) the dissolution of the General Partner or the entry of an
order amounting to a stay of proceedings against the General Partner under the
federal bankruptcy laws or rules;
(c) the sale or distribution of all or substantially all of
the assets held by the Partnership;
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(d) any other event that would cause a dissolution of a
limited partnership under the Act; or
(e) December 31, 2004.
Section 7.2. Winding Up. Upon the occurrence of (i) a Dissolution Event or
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(ii) the determination by a court of competent jurisdiction that the Partnership
has dissolved prior to the occurrence of a Dissolution Event, the Partnership
shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and
Partners, and no Partner shall take any action that is inconsistent with, or not
necessary to or appropriate for, the winding up of the Partnership's business
and affairs, provided that all covenants contained in this Agreement shall
continue to be fully binding upon the Partners until such time as the assets of
the Partnership have been fully distributed pursuant to this Section 7.2 and the
Certificate has been canceled pursuant to the Act. The General Partner shall be
responsible for overseeing the winding up and dissolution of the Partnership and
the determining the time, manner and terms of sale or other disposition of the
Partnership's assets. The winding up and dissolution shall be completed within
ninety (90) days of the occurrence of the Dissolution Event. The completion of
the winding up and dissolution shall operate as the Limited Partners' release of
any and all of their claims against both the Partnership and the General
Partner. The General Partner shall take full account of the Partnership's
liabilities and property and shall cause the property or the proceeds from the
sale thereof, to the extent sufficient therefor, to be applied and distributed,
to the maximum extent permitted by law, in the following order:
(a) First to creditors (including Partners who are creditors,
to the extent otherwise permitted by law) in satisfaction of all of the
Partnership's debts and other liabilities (whether by payment of the making of
reasonable provision for payment thereof);
(b) The balance, if any, to the Partners in accordance with
the positive balances in their Capital Accounts, after giving effect to all
contributions, distributions and allocations for all periods. Such distribution
shall, to the greatest extent possible, be made among the Partners in a manner
consistent with the manner in which distributions shall be made among the
Partners pursuant to Section 5.3.
Section 7.3. Deficit Capital Accounts. If any Limited Partner has a deficit
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balance in his Capital Account (after giving effect to all contribution,
distributions and allocations for all Fiscal Years, including the Fiscal Year in
which such liquidation occurs), such Limited Partner shall have no obligation to
make any contribution to the capital of the Partnership with respect to such
deficit, and such deficit shall not be considered a debt owed to the Partnership
or to any other person for any purpose whatsoever.
Section 7.4. Voluntary Removal of a Limited Partner. A Limited Partner may,
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at such Partner's option exercised upon written notice to the General Partner,
voluntarily remove himself or herself as a Limited Partner as of the last day of
a calendar month (a "Voluntary Removal") (the last business day immediately
preceding the effective date of a Voluntary Removal or an Involuntary Removal
pursuant to Section 7.5 shall be herein referred to as the "Termination Date.").
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Section 7.5. Involuntary Removal of a Limited Partner. Effective upon
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written notice to a Limited Partner from the General Partner, the Limited
Partner named in such notice shall be involuntarily removed for any reason or
for no reason as a Limited Partner (an "Involuntary Removal"). A Voluntary
Removal under Section 7.4 or an Involuntary Removal under this Section 7.5 shall
not dissolve the Partnership, the business of which shall be carried on by the
remaining Partner(s). (A Limited Partner who is removed as a Partner pursuant to
Section 7.4 or this Section 7.5 may be referred to herein as a "Removed
Partner.")
Section 7.6. Treatment of Interest of Withdrawn or Removed Partner.
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(a) From and after the Termination Date, a Removed Partner's
Capital Account shall be eliminated and all items of Net Income and Net Loss
previously allocated to such Partner's Capital Account shall be reallocated to a
special Capital Account which shall be established for the benefit of such
Removed Partner. The Net Income or Net Loss realized following a Termination
Date with respect to the Removed Partner's portion of any Investment Position at
the Removed Partner's Termination Date shall be allocated solely to the General
Partner.
(b) A Removed Partner shall be entitled to receive only the
balance, if any, in such Removed Partner's Capital Account at the Removed
Partner's Termination Date. From and after the Termination Date, the Removed
Partner shall not be deemed a Partner for any purpose except for the purposes of
Section 4.5 and Section 5.4, and any interest that a Removed Partner would have
had in Investment Positions acquired subsequent to the Termination Date shall,
unless allocated by the General Partner to one or more other Limited Partners,
be allocated solely to the General Partner.
(c) In each instance of a Removed Partner, the General Partner
may make the election under Code Section 754, and adjust the basis of the
Partnership property pursuant to Code Sections 734 or 743, as may be applicable.
ARTICLE VIII
Amendments
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Section 8.1. This Agreement may be amended only by the General Partner;
provided, however, that prompt written notice thereof shall be delivered to the
other Partners and that any amendment to this Agreement which (a) increases the
liability of any Partner (b) affects vesting or (c) amends this Article VIII,
shall require the prior approval of a majority in interest of the Partners so
affected.
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ARTICLE IX
Limitations on Transfers of Interests;
Additional Partners; Adjustments to Distributive Shares
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Section 9.1. Transfer by General Partner. The General Partner may assign,
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pledge, mortgage or otherwise hypothecate, sell or dispose of any part or all of
its Partnership Interest without the consent of the Limited Partners.
Section 9.2. Limitations on Transfers of Interests of Limited Partners. No
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Limited Partner shall assign, pledge, mortgage, or otherwise hypothecate, sell,
or dispose of any part or all of his Partnership Interest without the prior
written consent of the General Partner.
Section 9.3. Effect of Authorized and Unauthorized Transfers. Any
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transferee of a Partnership Interest transferred in accordance with this
Agreement shall succeed to all the rights and liabilities of the transferor
provided for under this Agreement, but shall only become a Substituted Limited
Partner if the permission required by Section 9.4 is granted. Any attempted
transfer of a Limited Partner's Partnership Interest without compliance with the
provisions of this Agreement shall be void and ineffectual and shall not be
binding upon the Partnership, and the Partnership may refuse to recognize such
attempted transfer for all purposes.
Section 9.4. Substituted Limited Partners. The General Partner may, in its
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sole discretion, permit an assignee or transferee of a Partnership Interest to
become a Substituted Limited Partner in the Partnership entitled to all the
rights and benefits under this Agreement of the assignor or transferor. No such
assignee or transferee shall become a Substituted Limited Partner unless and
until the General Partner has given such permission. Each Limited Partner hereby
consents to such admission and authorizes the General Partner to amend Exhibit I
or II, the schedules referred to by this Agreement and, if required by the Act,
the Certificate of Limited Partnership of the Partnership to reflect such
admission.
Section 9.5. Additional Limited Partners. The General Partner may from time
---------------------------
to time admit one or more Persons as additional Limited Partners. Upon admission
of such Person(s), the Profit Percentage of each Partner will be adjusted as
provided below. Subject to the last sentence of this Section 9.5, the General
Partner shall assign such additional Limited Partners a Profit Percentage, and
any Profit Percentage assigned to such additional Limited Partners will dilute
the Profit Percentage of the existing Limited Partners in proportion to their
Profit Percentages to the extent that the aggregate Profit Percentages of all
Limited Partners would otherwise exceed twelve percent (12%), unless the General
Partner elects to have such assignment of Profit Percentage dilute the General
Partner. No Limited Partner shall participate in any Investment Asset acquired
by the Partnership prior to the time such Limited Partner became a Limited
Partner, unless expressly provided by the General Partner.
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<PAGE>
ARTICLE X
Fiscal Year; Records; Reports
-----------------------------
Section 10.1. Fiscal Year. "Fiscal Year," as used in this Agreement, means
-----------
the period beginning on January 1 and ending on December 31 of each year.
Section 10.2. Records. At all times the General Partner shall keep books of
-------
account of the Partnership. Such books of account, together with a copy of this
Agreement and the Certificate of Limited Partnership and any amendments thereto
and restatements thereof, shall at all times be maintained at the principal
office of the Partnership, and shall be open to inspection at any reasonable
time by the Partners.
Section 10.3. Reports. As promptly as possible after the close of each
-------
Fiscal Year, but in any event within ninety (90) days after the close of each
Fiscal Year, the General Partner shall distribute K-1 tax returns and a report
on the Investment Positions held by the Partnership to each Partner. Within
ninety (90) days after the close of each Fiscal Year, the Partnership shall
transmit to each Partner a report indicating his share of the income or losses
of the Partnership for such Fiscal Year for federal income tax purposes. Such
report shall contain a separate accounting for such tax purposes of each of the
following four items: realized capital gains, realized capital losses, ordinary
income, and ordinary losses.
Section 10.4. Accounting Decisions. All decisions as to accounting
--------------------
treatment of any items of Partnership business, when made by the General Partner
in accordance with generally accepted accounting principles, shall have
conclusive effect upon the Partnership and the Partners.
Section 10.5. Tax Matters Partner. The General Partner shall be the tax
-------------------
matters partner for the Partnership for all federal income tax purposes set
forth in the Code, with the power and authority to take all actions and do such
things as required or as he shall deem appropriate under the Code or regulations
promulgated thereunder.
ARTICLE XI
----------
Miscellaneous
-------------
Section 11.1. Counterparts. This Agreement may be executed by the Partners
------------
in counterparts, all of which taken together shall be deemed one original.
Section 11.2. Further Assurances. The Partners will execute, acknowledge,
------------------
and deliver such further instruments and do such further acts and things as may
be required to carry out the intent and purpose of this Agreement.
Section 11.3. Captions. The descriptive headings contained in this
--------
Agreement are inserted only as a matter of convenience and shall not control or
affect the meaning or construction of any provision of this Agreement.
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<PAGE>
Section 11.4. Binding Effect. Except to the extent required under the Act
--------------
and except for fees, rights to reimbursement and indemnity, and other
compensation, none of the provisions of this Agreement shall be for the benefit
of or enforceable by any creditor of the Partnership, as such. The provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
successors and permitted assigns, if any, of the respective Partners, except as
otherwise provided in this Agreement.
Section 11.5. Partial Invalidity. The invalidity or unenforceability of a
------------------
portion of this Agreement will not affect the validity or enforceability of the
remainder hereof.
Section 11.6. Integration. This Agreement and its schedules and Exhibits
-----------
constitutes the entire understanding and agreement among the parties pertaining
to the subject matter of this Agreement and supersedes all prior agreements and
understandings of the parties in connection with this Agreement.
Section 11.7. Notices. All notices provided for or permitted hereunder
-------
shall be made in writing by hand-delivery, registered or certified first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery and
directed if to a Partner, at its address set forth under its signature below,
and if to the Partnership, to the General Partner at its address set forth below
under its signature. All such notices shall be deemed to have been duly given:
when delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
Section 11.8. English Usage. Words of gender or neuter may be read as
-------------
masculine, feminine or neuter, as required by context, and the word "persons"
shall include individuals, trusts, Entities, and all other forms of association.
Section 11.9. References. Article and Section references in this Agreement
----------
are, unless otherwise indicated, references to the Articles or Sections, as the
case may be, of this Agreement which are so numbered, as such may be amended.
All references to numbered or lettered Exhibits are references to the Exhibits
so numbered or lettered which are appended to this Agreement, as such Exhibits
may be amended from time to time. Such references to Exhibits are to be
construed as incorporating by reference the contents of each Exhibit to which
such reference is made, as though such contents were set out in full at the
place in this Agreement where such reference is made.
Section 11.10. Action by General Partner. Any action, approval or consent
-------------------------
to be taken or given by the General Partner hereunder shall be valid only if
taken or given by a member of the Board of Directors of the General Partner who
is acting on behalf of a majority of the members of such Board of Directors.
Section 11.11. No Right to Employment. The establishment or existence of
----------------------
the Agreement shall not confer upon any individual the right to continue as a
Limited Partner or as an employee of any entity, including, without limitation,
the General Partner.
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<PAGE>
ARTICLE XII
Defined Terms
-------------
The following terms, when used in this Agreement, have the following
meanings, unless otherwise expressly indicated:
"Accounting Period" means a Fiscal Year or, if during a Fiscal Year there
shall be one or more interim closings of the Partnership's books, means the
period from the beginning of such Fiscal Year to the date of the first such
closing, the period(s) between any such closings, and the period from the last
such closing to the end of such Fiscal Year.
"Act" means the Delaware Revised Uniform Limited Partnership Act and any
successor statute, as amended from time to time.
"Affiliate" means any member of a person's immediate family and any entity
controlled by, controlling or under common control with such person.
"Aggregate Return" has the meaning ascribed to it in Section 6.4(d).
"Agreement" means this Agreement of Limited Partnership, with the Exhibits
which are appended to and referred to in this Agreement, and the schedules
referred to in this Agreement, as such Agreement, Exhibits and schedules may be
amended, modified or restated at any time and from time to time.
"Board" means the Board of Directors of the General Partner.
"Capital Account" means, for each Partner, the sum of (a) such Partner's
Capital Contribution(s), plus (b) the aggregate amount of Net Income (including
deemed gains only to the extent arising pursuant to this Agreement) allocated to
such Partner pursuant to Article V, minus (c) the aggregate amount of cash
distributed to such Partner pursuant to Article V, minus (d) the aggregate
amount of Net Losses (including deemed losses only to the extent arising
pursuant to this Agreement), minus (e) the aggregate amount of expenses
allocated to such Partner pursuant to Article VII, minus (f) the value, as
determined pursuant to Section 5.3, of such Partner's allocable share of
Partnership Assets distributed to such Partner in kind and (g) otherwise in
accordance with Treasury Regulations (S)1.704-1. All such allocations and
distributions shall be credited or charged, as the case may be, to the Capital
Accounts of the Partners to whom they apply, as of the time as of which they are
determined.
"Capital Contribution" means, for each Partner, the amount shown as the
Capital Contribution for such Partner, as from time to time increased pursuant
to Article III.
"Capital Percentages" mean (a) with respect to each Limited Partner, the
Capital Account initially established for such Limited Partners divided by the
sum of (i) the Capital Accounts initially established for all Limited Partners
upon their admission to the Partnership and (ii) the aggregate Capital
Contributions made by the General Partners and (b) with respect to the General
Partner, the aggregate Capital Contributions made by the General Partner divided
the
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<PAGE>
sum of (i) the Capital Accounts initially established by the Limited Partners
upon their admission to the Partnership and (ii) the aggregate Capital
Contributions made by the General Partner.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Cost Basis" means the amount paid, or deemed paid, by the Partnership for
a Security or as set forth on Exhibit III.
"Disposition" means the sale of all or a portion of any of an Investment
Position; in the case of a partial Disposition, such Disposition shall be
treated as a Disposition of a separate asset to which shall be attributed, for
purposes of this Agreement, a pro rata portion of the Partner's Capital
Contributions made with respect to the entire Capital Contribution attributable
to such Investment Position.
"Dissolution Event" shall mean an event of dissolution specified in Section
7.1.
"Entity" means any business corporation, partnership, unincorporated
association, firm, organization, or any other business entity having one or more
leaders or managerial figures.
"Equity Cost Basis" means the Cost Basis of equity Securities or Securities
convertible into or exercisable into equity Securities.
"Fair Market Value" means the market price of publicly traded Securities,
if publicly traded, or the fair market value determined by the General Partner
otherwise.
"Fiscal Year" has the meaning ascribed to it in Section 10.1.
"General Partner" means ICG Holdings, Inc. or any Person who succeeds its
interest as the general partner under this Agreement.
"Gross Asset Value" means with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(i) The initial Gross Asset Value of any asset contributed by a Partner
to the Partnership shall be the Fair Market Value of such asset;
(ii) The Gross Asset Values of all Partnership assets shall be adjusted to
equal their respective Fair Market Values as of the following times: (A) the
acquisition of an additional interest in the Partnership by any new or existing
Partner in exchange for more than a de minimis Capital Contribution; (B) the
----------
distribution by the Partnership to a Partner of more than a de minimis amount of
----------
Partnership property as consideration for an interest in the Partnership; and
(C) the liquidation of the Partnership within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g), provided, however, that an adjustment described in clauses
(A) and (B) of this paragraph shall be made only if the General Partner
reasonably determines that such adjustment is necessary or appropriate to
reflect the relative economic interests of the Partners in the Partnership;
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<PAGE>
(iii) The Gross Asset Value of any Partnership assets distributed to any
Partner shall be adjusted to equal the Fair Market Value of such asset on the
date of distribution; and
(iv) The Gross Asset Values of Partnership assets shall be increased (or
decreased) to reflect any adjustments to the adjusted basis of such assets
pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent
that such adjustments are taken into account in determining Capital Accounts
pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) clause (vi) of the
definition of "Net Income" and "Net Loss"; provided, however, that Gross Asset
Values shall not be adjusted pursuant to this subparagraph (iv) to the extent
that an adjustment pursuant to subparagraph (ii) is required in connection with
a transaction that would otherwise result in an adjustment pursuant to this
subparagraph (iv).
"Indebtedness" means all obligations, direct or contingent, for the payment
of cash or cash equivalents, including, without limitation, obligations with
respect to borrowed money, accounts payable, checks, drafts bills of exchange,
letters of credit, margin accounts, short sales, reverse purchase agreements,
futures contracts, and other recognized commercial transactions, instruments
involving the extension of credit, and all obligations incurred as surety or
guarantor of the obligations of others.
"Indemnified Parties" has the meaning ascribed to it in Section 4.5.
"Investment Assets," directly or indirectly, means and include all
Securities, rights and other tangible and intangible property acquired by the
Partnership for the purpose of producing a profit in the ordinary course of
business.
"Investment Position" means an Investment Asset and all Securities or other
property which may be exchanged for or distributed with respect to such
Investment Asset, whether by the issuer of the Investment Asset or related group
of Entities or any successor or successors thereto.
"Involuntary Removal" has the meaning ascribed to it in Section 7.5.
"Limited Partners" means all and only those persons who are so designated
in Exhibit II hereto, a copy of which shall be kept on file by the General
Partner and principal executive offices of the Partnership.
"Limited Partnership Interest" means the Limited Partner's ownership
interest in the Partnership received in exchange for his or her Capital
Contribution.
"Limited Partners Profit Percentage" means the aggregate Profit Percentage
of all of the Limited Partners.
"Measurement Period" has the meaning ascribed to it in Section 6.4(b).
"Net Income" and "Net Loss" mean, for each Accounting Period, an amount
equal to the Partnership's taxable income or loss for such Accounting Period,
with the following adjustments:
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<PAGE>
(i) Any income of the Partnership that is exempt from federal income tax
and not otherwise taken into account in computing Net Income or Net Loss shall
be added to such taxable income or loss;
(ii) Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to
Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account
in computing Net Income or Net Loss shall be subtracted from such taxable income
or loss;
(iii) In the event the Gross Asset Value of any Partnership asset is
adjusted pursuant to clauses (ii) or (iii) of the definition of Gross Asset
Value, the amount of such adjustment shall be taken into account as gain or loss
from the disposition of such asset for purposes of computing Net Income or Net
Loss;
(iv) Gain or loss resulting from any disposition of property with respect
to which gain or loss is recognized for federal income tax purposes shall be
computed by reference to the Gross Asset Value of the property disposed of,
notwithstanding that the adjusted tax basis of such property differs from its
Gross Asset Value;
(v) To the extent an adjustment to the adjusted tax basis of any
Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is
required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken
into account in determining Capital Accounts as a result of a distribution other
than in liquidation of a Partner's interest in the Partnership, the amount of
such adjustment shall be treated as an item of gain or loss from the disposition
of such asset and shall be taken into account for purposes of computing Net
Income or Net Loss; and
(vi) Notwithstanding any other provision of this definition, any items
which are specially allocated pursuant to a special allocation set forth in a
schedule on file with the General Partner shall not be taken into account in
computing Net Income or Net Loss.
"Partners" means the General Partner and Limited Partners individually or
collectively, as the context requires.
"Partnership" means 1999 Internet Capital L.P.
"Partnership Assets" means all assets and property of the Partnership of
any and every kind.
"Partnership Interest" means any Partner's interest in the Partnership.
"Person" has the meaning ascribed to it in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934.
"Profit Percentage" means the percentage established for each Limited
Partner pursuant to Section 6.2 and set forth in a schedule on file with the
General Partner.
"Removed Partner" has the meaning ascribed to it in Section 7.5.
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<PAGE>
"Securities" means any of one or more of the following: (a) capital stock
(both common and preferred); partnership interests (both limited and general);
limited liability company interests; interests in any acquisition, venture
capital or other investment funds; notes; bonds; debentures; other obligations,
instruments or evidences of indebtedness (whether convertible or otherwise); and
other securities and equity interests of whatever kind of any Person, whether
readily marketable or not; (b) any rights to acquire any of the Securities
described in clause (a) above (including, without limitation, options, warrants,
rights or other interests or other Securities convertible into any such
Securities); or (c) any Securities received by the Partnership upon conversion
of, in exchange for, as proceeds from the disposition of, as interest on, or
stock dividend or other distribution from, any of the Securities described in
clauses (a) or (b) above.
"Short-term Investment Income" means all items of Net Income, other than
Net Income with respect to an Investment Position.
"Short-term Investment Loss" means all items of Net Loss, other than Net
Loss with respect to an Investment Position.
"Substituted Limited Partner" means any transferee or assignee of a Limited
Partner's Partnership Interest who is then admitted to the Partnership as a
Limited Partner pursuant to Section 9.4 hereof.
"Termination Share" means the payments a Removed Partner is entitled to
receive from the Partnership from and after the date such Partner ceases to be a
Partner.
"Threshold Amount" means an amount equal to three hundred percent (300%) of
the Equity Cost Basis of an Investment Position, unless otherwise provided
Exhibit III.
"Treasury Regulation" means the income tax regulations promulgated under
the Code and effective as of the date hereof. Unless the General Partner
determines otherwise after consultation with the Limited Partner, such term
shall be deemed to include any amendments to such regulations and any
corresponding provisions of succeeding regulations.
"Vested Profit Percentage" has the meaning specified in Section 6.1.
"Voluntary Removal" has the meaning ascribed to it in Section 7.4.
[Signature Page Follows]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership as of the 1st day of March, 2000.
GENERAL PARTNER:
ICG HOLDINGS, INC.
/s/ Henry Nassau
-----------------------------------------
Henry Nassau
Secretary
LIMITED PARTNERS:
[See counterpart signature pages]
---------------------------------
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<PAGE>
EXHIBIT I
to
Agreement of Limited Partnership
of
1999 Internet Capital L.P.
Partners Capital Contribution/Capital Accounts
-------- -------------------------------------
General Partner: Capital Contribution
--------------- --------------------
Securities described in Exhibit III as
amended from time to time or purchase
price of such securities.
Limited Partners: Initial Capital Account
---------------- -----------------------
Schedule on file with the General Partner.
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EXHIBIT II
Limited Partners
----------------
------------------------------------------------
Names
------------------------------------------------
Alexander, Douglas A.
------------------------------------------------
Allgaier, Matthias
------------------------------------------------
Buckley, Walter W.
------------------------------------------------
Bunker, Richard G.
------------------------------------------------
Devine, Richard
------------------------------------------------
Duckett, Stephen
------------------------------------------------
Fox, Kenneth A.
------------------------------------------------
Gathman, David D.
------------------------------------------------
Harrington, Wendy
------------------------------------------------
Haskell, Bill
------------------------------------------------
Hewlin, Todd
------------------------------------------------
Hwang, Victor
------------------------------------------------
Jadallah, Sam
------------------------------------------------
Lotke, Mark
------------------------------------------------
Maner, Walter P.
------------------------------------------------
Morgan, Raymond K.
------------------------------------------------
Nassau, Henry N.
------------------------------------------------
Nickolas, John N.
------------------------------------------------
Pollan, Robert A.
------------------------------------------------
Risman, Michael
------------------------------------------------
Slaats, Paul H.
------------------------------------------------
Dated as of: March 1, 2000
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EXHIBIT III
Cost Basis and Threshold Amount
-------------------------------
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Securities Equity Cost Basis Threshold Amount
--------------------------------------------------------------------------------
Applied Intranet
(Animated Images, Inc.)
--------------------------------------------------------------------------------
Ag Producer Network
--------------------------------------------------------------------------------
asseTrade.com
--------------------------------------------------------------------------------
Net Vendor Systems
--------------------------------------------------------------------------------
Purchasing Solutions, Inc.
--------------------------------------------------------------------------------
traffic.com
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Dated as of: March 1, 2000