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Murdock Opportunity Fund L.P.
Limited Partnership Agreement

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Section 1. Formation

1.1 Formation and Continuation of the Partnership's Business

Section 2. Definitions

2.1 Terms

Section 3. General Provisions

3.1 Name
3.2 Principal Office
3.3 Business
3.4 Address of Limited Partners
3.5 Term, Dissolution and Fiscal Year

Section 4. Capital Contributions and Interests

4.1 General
4.2 General Partner
4.3 Limited Partners
4.4 Procedures for Additional Capital Contributions
4.5 Early Tender of Funds

Section 5. Net Asset Value and Valuation of Assets

5.1 Valuation

Section 6. Capital Accounts and Allocations of Profits and Losses

6.1 Capital Accounts
6.2 Certain Adjustments to Capital Accounts
6.3 Maintenance and Modification of Capital Accounts
6.4 Carrying Values
6.5 Transferees
6.6 Tax Capital Accounts .

Section 7. Allocation of Net Profits and Net Losses

7.1 Allocation of Net Profits and Net Losses

Section 8. Allocation of Income for Tax Purposes

8.1 Allocation of Profits and Losses for Federal Income Tax Purposes
8.2 Allocations for Tax Purposes Relating to Appreciated Property
8.3 Tax Withholding

Section 9. Management of the Partnership

9.1 Management
9.2 General Partner Authority
9.3 Management Fees
9.4 Partnership Expenses
9.5 Other Business Activities
9.6 New General Partners
9.7 Limited Partners

Section 10. Audits and Reports to Limited Partners

10.1 Reports

Section 11. Transferability of Interests

11.1 Transfer and Assignments of Interests
11.2 Notice; Consent
11.3 Transfers and Assignments of General Partner Interest

Section 12. Withdrawal of Interests

12.1 Withdrawal of Limited Partners
12.2 Mandatory Withdrawals
12.3 Payment
12.4 Withdrawal of General Partner

Section 13. Offering of Limited Partnership Interests

13.1 Sale of Interests

Section 14. Special Power of Attorney

14.1 Power of Attorney

Section 15. Indemnification

15.1 Indemnification of General Partner
15.2 Limitations
15.3 Advances of Fees and Expenses

Section 16. Amendments; Meetings

16.1 Amendments with Assent of the General Partner
16.2 Meetings
16.3 Amendments and Actions without Asset of General Partner

Section 17. Miscellaneous

17.1 Delaware Law
17.2 Priority Among Limited Partners
17.3 Notices
17.4 Binding Effect
17.5 Captions
17.6 Counterparts
17.7 Complete Agreement
17.8 Group Ownership of Limited Partnership Interests
17.9 Legal Counsel

This Limited Partnership Agreement for the Murdock Opportunity Fund L.P., dated the_____day of _________, 20__, by and among Murdock Opportunity G.P., L.P., a Delaware limited partnership, as general partner (the "General Partner"), and various Limited Partners identified as such on the signature page hereof (the "Initial Limited Partners").

The following Limited Partnership Agreement (the "Agreement") is among the General Partner, the Initial Limited Partners and each other party who shall execute this Agreement, as amended from time to time, whether in counterpart, by separate instrument or otherwise (including through Power of Attorney), as Limited Partners (collectively such limited partners and the Initial Limited Partners are referred to as "Limited Partners") (the General Partner and Limited Partners are sometimes collectively referred to as "Partners").


The parties hereby agree:

1.1 Formation of the Partnership's Business. The Partnership is formed as a limited partnership under the Delaware Revised Uniform Limited Partnership Act (the "Act"). The Partners agree that they shall comply with the requirements and provisions of the Act, which shall govern the rights and liabilities of the Partners, except as otherwise provided in this Agreement. Simultaneous with the execution of this Agreement, the General Partner will execute and file a Certificate of Limited Partnership in accordance with the provisions of the Act and shall execute, file, record and publish (as appropriate) those amendments, assumed name certificates and other documents as are or become necessary or advisable in connection with the operation of the Partnership, as it determines. The Limited Partners undertake to furnish to the General Partner, if the General Partner so requests, a Power of Attorney which may be filed in those jurisdictions as the General Partner may deem appropriate with the Certificate of Limited Partnership and any amendments and any additional information as is required from the General Partner to complete any documents, including Certificates of Limited Partnership, this Agreement, amendments thereto and assumed name certificates, and to execute and cooperate in the filing, recording and publishing of those documents at the request of the General Partner. The General Partner shall not be required to deliver a Certificate of Limited Partnership to each Limited Partner. The General Partner may change the name of the Partnership.

SECTION 2: DEFINITIONS

2.1 Terms. The following terms used in this Agreement will have the meanings set forth below, unless the context otherwise requires:

Act means the Delaware Revised Uniform Limited Partnership Act, as amended.

Affiliate means, with respect to a specified person (a) any person who directly or indirectly owns, controls, or holds with power to vote, 10% or more of any class of equity securities of such specified person; (b) any person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such specified person; (c) any person who, directly or indirectly, controls, is controlled by, or is under common control with such specified person; or (d) any officer, director or partner of, or any person who serves in a similar capacity with respect to, such specified person, or of which such specified person is an executive officer, director or general partner, or with respect to which such specified person serves in a similar capacity.

Agreement means this Limited Partnership Agreement, as it may be amended from time to time.

Capital Account means the account established for each Partner as provided in Section 6.1 (a) and 1.704-1 (b)(2)(iv) of the Regulations, including such adjustments as may from time to time be made to such account in accordance with the provisions of this Agreement.

Capital Contribution means, with respect to any Partner, any amount contributed to, or for the benefit of, the Partnership by such Partner pursuant to Section 4.1.

Closing Date means the first day of each month at which time Limited Partners are admitted to the Partnership. Unless otherwise provided for herein, all Capital Contributions will be deemed to be made as of the Closing Date next following the date of their subscription.

Code means the Internal Revenue Code of 1986 including all amendments and revisions.

Consent means either (a) the consent given by vote at a meeting called and held in accordance with the provisions of Section 16, or (b) a written consent required or permitted to be given pursuant to this Agreement or applicable law, or (c) the act of voting or granting any such written consent, as the context may require. Except as expressly provided otherwise in this Agreement, "Consent of the Limited Partners" will refer to the Consent of a Majority in Interest of the Limited Partners.

Effective Date of Withdrawal means the date on which withdrawals pursuant to Section 12 are deemed effective. If proper Notice is received by the General Partner of the intent to withdraw not less than sixty (60) days prior to the end of a calendar quarter, the Effective Date of Withdrawal is the last day of such calendar quarter. If Notice of withdrawal is received less than sixty (60) days prior to the end of such calendar quarter, the Effective Date of Withdrawal is the last day of the next following calendar quarter unless the General Partner, in its sole and absolute discretion, waives such Notice requirement. The Effective Date of Withdrawal of any mandatory withdrawal under Section 12.2 is the last day of the month in which such withdrawal is effective.

Event of Bankruptcy means, with respect to any person, (a) the entry of a decree or order for relief by a court having jurisdiction in respect of such person in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy or insolvency law, or the appointment of a receiver, assignee, or trustee of such person or for any substantial part of such person's property, or the issuance of an order for the winding-up or liquidation of such person's affairs and the continuance of any such decree or order unstaved and in effect for a period of ninety (90) consecutive days, or (b) the commencement by such person of a voluntary proceeding seeking any decree, order or appointment referred to in clause (a) or the consent by such person to any such decree, order or appointment.

Fiscal Period means the period commencing on (i) January 1 of each year, on (ii) each Closing Date, and (iii) each Effective Date of Withdrawal. The prior Fiscal Period shall terminate on the date immediately preceding the date of commencement of the new Fiscal Period.

General Partner means Murdock Opportunity G.P., L.P., a Delaware limited partnership, or any person who is admitted to the Partnership as an additional or substitute general partner in accordance with the terms of this Agreement.

General Partner Profit Allocation means the amount determined pursuant to Section 7.1 with respect to each Limited Partner, resulting in the adjustments to Capital Accounts pursuant to Section 6.1.

ICA means the United States Investment Company Act of 1940, as amended.

Initial Limited Partners means those Limited Partners who were limited partners on the date of the adoption of this Agreement.

Interest means the entire ownership interest of a Partner in the Partnership at any particular time, including the right of such Partner to any and all benefits to which a Partner may be entitled as provided in this Agreement.

Limited Partner means each person who was or is admitted to the Partnership as an additional or substitute limited partner in accordance with the terms of this Agreement at all times prior to the complete withdrawal of such person as a limited partner in the Partnership.

Loss Carryforward means the cumulative Net Losses, if any, allocated to the Limited Partner's Capital Account for Profit Allocation Periods prior to the then current Profit Allocation Period (and not offset by subsequent Net Profits); provided that the Loss Carryforward shall be reduced proportionately for withdrawals by the Limited Partners.

Majority in Interest of the Limited Partners means the Consent of Limited Partners whose Interests represent more than 50% of the aggregate Partnership Percentages of all Limited Partners.

Net Asset Value means the amount calculated in accordance with Section 5.1.

Net Profit (Loss) means the Partnership's net operating profits or net operating losses, as the case may be, determined on the accrual basis of accounting in accordance with generally accepted accounting principles consistently applied and further in accordance with the following:

 

(a) Net Profits and Net Losses shall include realized and unrealized profits and losses with respect to all Securities and other positions. Realized or unrealized profit and realized or unrealized loss shall, with respect to any Security and other position held during any Fiscal Period, include the realized or unrealized appreciation or the realized or unrealized depreciation, as the case may be, with respect to such position, determined by comparing the net proceeds from the closing of such position or the market value of such position at the end of such Fiscal Period with (i) the cost of such position established during such Fiscal Period or (ii) if such position was established during a prior Fiscal Period, the market value of such position at the end of the preceding Fiscal Period.

(b) The market value of positions in Securities shall be computed in accordance with the provisions of Section 5.

(c) There shall be deducted in computing Net Profits and Net Losses the estimated expenses for administrative, legal and audit services, if any, in respect of the particular Fiscal Period (whether performed therein or to be performed thereafter), and such reserves for contingent liabilities of the Partnership, including estimated expenses, if any, in connection therewith, as the General Partner shall determine. Any management fees payable by the Partnership shall be deducted in computing Net Profits and Net Losses.

(d) The Organizational and Offering Expenses of the Partnership shall be amortized over a period of 60 months from the formation of the Partnership, and the amortizable portion of the Organizational expenses shall be deducted in computing Net Profits and Net Losses.

(e) Withdrawal penalties paid by withdrawing Limited Partners shall not be included in Net Profits for purposes of calculating the General Partner Profit Allocation.

 

Notification or Notice means a writing containing the information required by this Agreement to be communicated to any person, sent or delivered in accordance with this Agreement.

Organization and Offering Expenses means all expenses in connection with the formation of the Partnership and the offer and sale of Interests (other than selling commissions, if any), including fees for legal, accounting, investment banking and consulting services.

Partner means any General Partner or any Limited Partner.

Partnership means The Murdock Opportunity Fund L.P. a Delaware limited partnership.

Partnership Percentage means for each Partner, the proportion, expressed as a percentage, that the amount of such Partner's Capital Account bears as of the beginning of any Fiscal Period to the total of all Partners' Capital Accounts as of the beginning of such Fiscal Period (after giving effect to the adjustments provided in Section 6.2).

Profit Allocation Period means, for each Limited Partner, (i) the period from January 1st through December 31st of each year, (ii) the period from the Closing Date on which the Limited Partner was admitted to the Partnership through June 30th if the Closing Date was prior to July 1st or the period from the Closing Date the Limited Partner was admitted to the Partnership through December 31st if the Closing Date was after June 30th (with respect to the Initial Limited Partners, the first Profit Allocation Period shall commence on the effective date of the Agreement and terminate as described above), (iii) the period from January 1st through the Effective Date of Withdrawal of any withdrawal by a Limited Partner if the Effective Date of Withdrawal is prior to June 30th or from July 1st through the Effective Date of Withdrawal if the Effective Date of Withdrawal is after June 30th.

Regulations means the Regulations promulgated under the Code, as such Regulations may be amended from time to time (including corresponding provisions of succeeding Regulations).

Security or Securities means any domestic or foreign note, stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, interest in any limited partnership or limited liability company, collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, financial futures contract, commodity futures contract, put or call option, voting-trust certificate, certificate of deposit for a security, mortgage-backed security (including collateralized mortgage obligations of any type), or, in general, any interest or instrument commonly known as a "security" or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase or any derivative of any of the foregoing.

1933 Act means the Securities Act of 1933, as amended.

Tax Capital Account means the account established for each Partner as provided in Section 6.3, including such adjustments as may from time to time be made to such account in accordance with the provisions of this Agreement.

Tax Matters Partner means the General Partner.

Transfer of an Interest means a sale, exchange, transfer, assignment, or encumbrance of an Interest.

Transferee is the recipient of a Transfer of an Interest pursuant to Section 11.

Transferor is a Limited Partner who transfers an Interest pursuant to Section 11

Valuation Date is any date on which the value of the Partnership's Securities or other assets are valued.

 

3.1 Name. The name of the Partnership shall be, and its business shall be conducted under the name, The Murdock Opportunity Fund L.P.

3.2 Principal Office. The address of the principal office of the Partnership is The Murdock Opportunity Fund L.P., 520 Madison Avenue, 40th Floor, New York, New York 10022 or such other place as the General Partner may designate from time to time. The name and address of the agent of the Partnership for service of process is: Luis J. Mejia, The Murdock Opportunity Fund L.P., 520 Madion Avenue, 40th Floor, New York, New York 10022. The Partnership shall maintain its books and records at its principal office and or the offices of its designated accountants .

3.3 Business. The Partnership's business and purpose is to invest in both private and public venture and early stage companies that may require funding at a critical stage in their development and to invest and trade in Private Placements, bridge financing, mezzanine financing, long and short term equity and or debt investments, convertible debt, convertible stock, common stock, money market and other traditional bank product offerings, US government securities and agency debt with the ability to hedge risk with private and publicly traded securities, options and futures. The Partnership may also borrow funds using the securities held as collateral. The Partnership may engage in any other activity the General Partner deems necessary and suitable to accomplish and further such purposes.

3.4 Addresses of Limited Partners. The address of each Limited Partner is set forth on such Limited Partner’s Subscription Page. A Limited Partner may change such address by notice to the General Partner, which notice shall become effective on receipt or such later time as such notice may specify.

3.5. Term, Dissolution and Fiscal Year.

(a) Term. The term of the Partnership shall commence on the day on which the Certificate of Limited Partnership is filed with the Department of State of the State of Delaware, pursuant to the provisions of the Act and shall end upon the first to occur of the following: (1) December 31, 2025; (2) receipt by the General Partner of an election to dissolve the Partnership at a specified time by a Majority in Interest, Notice of which is sent by registered mail to the General Partner not less than ninety (90) days prior to the effective date of dissolution; (3) withdrawal, removal, insolvency or dissolution of a General Partner (unless the Partnership is continued pursuant to the terms of this Agreement); or (4) any event which shall make it unlawful for the existence of the Partnership to be continued or requiring termination of the Partnership.

(b) Dissolution.  Upon the occurrence of an event causing the dissolution of the Partnership, the Partnership shall be dissolved and its business wound-up. Payment of creditors and distribution of the Partnership's assets shall be effected as soon as practicable in accordance with the Act and this Agreement, and the General Partner and each Limited Partner (and any assignee) shall share in the assets of the Partnership pro-rata in accordance with their respective positive Capital Account balances in the Partnership, less any amount owing by any Partner (or assignee) to the Partnership.

(c) Fiscal Year.  The Partnership's tax year shall be the calendar year unless changed by the General Partner.

4.1 General.  All contributions to the capital of the Partnership will be in the form of cash provided that the General Partner may, in its sole discretion, consent to the contribution of Securities to the capital of the Partnership. Such Securities shall be valued as is provided for in Section 5 hereof.

4.2 General Partner. The General Partner has contributed $50,000 (exclusive of Organization and Offering Expenses advanced by it) as of the date of this Agreement. The General Partner may make additional Capital Contributions to the Partnership pursuant to the procedures set forth herein. Except as otherwise provided herein, no General Partner is required to make any additional Capital Contributions. The General Partner shall not be liable for the return or repayment of all or any portion of the capital or profits of any Partner (or assignee), it being expressly agreed that any return of capital or profits made pursuant to this Agreement shall be made solely from the assets (which shall not include any right of contribution from the General Partner) of the Partnership. Organization and Offering Expenses advanced by the General Partner shall not be treated as Capital Contributions and shall not be credited to the General Partner's Capital Account. Said advances shall be re-paid to the General Partner by the Partnership at or promptly following each Closing Date.

4.3 Limited Partners. Each person admitted as a Limited Partner to the Partnership pursuant to this Agreement will contribute, on or prior to the Closing Date, the amount of the Capital Contribution set forth on such Partner's Subscription Agreement, and such Capital Contribution will be deemed made as of such Closing Date and will be set forth on a supplement to this Agreement which shall be maintained in the principal offices of the Partnership. An affidavit declaring the amount of capital contributions of the Limited Partners and the amount anticipated to be contributed by the Limited Partners shall be filed at the same time as the Certificate of Limited Partnership, and supplemental affidavits shall be filed as required by the Act. No Limited Partner will be required to make any additional Capital Contribution, but voluntary additional Capital Contributions may be made pursuant to the procedures set forth herein and will be set forth on such supplements. The initial Capital Contribution by a Limited Partner (other than the Initial Limited Partners) will not be less than $250,000 (two hundred and fifty thousand dollars) unless the General Partner, in its sole discretion, permits a lesser amount.

4.4 Procedures for Additional Capital Contributions.  Any Partner wishing to make an additional Capital Contribution must notify the General Partner of such Partner's proposed Capital Contribution at least ten business days (or such shorter period as may be acceptable to the General Partner) before a Closing Date. In the exercise of its discretion, the General Partner may require additional representations and warranties, together with supporting documentation, as a condition to accepting any such proposed additional Capital Contribution and may refuse to accept all or any portion of any such proposed Capital Contribution. If the General Partner accepts any proposed Capital Contribution, the contributing Partner will make available to the Partnership the cash to be contributed prior to the next Closing Date. Any such Capital Contribution will be deemed for all purposes of this Agreement to have been made on the Closing Date. The amounts and effective dates of all additional Capital Contributions shall be set forth on supplements to this Agreement maintained by the General Partner. The General Partner may terminate the offering of Interests at any time. The aggregate of all Capital Contributions shall be available to the Partnership to carry on its business and no interest shall be paid by the Partnership to subscribers on any funds after their contribution to the Partnership. All Interests are subscribed for upon receipt of a check, draft, or wire of the subscriber and are issued subject to the collection of the funds represented by the check, draft, or wire. If a check or draft of a subscriber for Interests representing payment for an Interest is returned unpaid, the Partnership shall cancel that subscriber's Interest as represented by the returned check or draft and the General Partner shall file an amendment to the Partnership's Certificate of Limited Partnership reflecting the cancellation in any jurisdiction where the filing may be necessary. Any losses or profits sustained by the Partnership in connection with the Partnership's investing or trading allocable to any canceled Interest shall be allocated among the remaining partners. Each subscriber agrees to reimburse the Partnership for any expense or losses incurred in connection with any cancellation of Interests issued to him.

4.5 Early Tender of Funds. The General Partner will cause funds tendered before the applicable Closing Date to be deposited in a separate account. All interest earned on such funds will be paid to the subscriber based on the length of deposit of the subscriber’s escrowed funds. In no event will such funds be considered Partnership assets until contributed to the Partnership on the applicable Closing Date.

5.1 Valuation. The Partnership's Net Asset Value shall be determined according to the following principles, and where no principle is governing, then on the basis of generally accepted accounting principles, consistently applied.

(a) Net Asset Value means the Partnership's total assets less total liabilities and shall include any unrealized profit or loss on all open positions.

(b) Any Security that is listed on a national securities exchange will be valued at its last sale price on the most recent date on or before the Valuation Date that the requisite information is available (the Date of Determination) as recorded by the composite tape system, or, if the Security is not included in such system, at its last sale price on the Date of Determination on the principal national securities exchange on which the Security is traded, as recorded by the exchange, or, if no sale occurred on the Date of Determination, at the mean between the closing "bid" and "asked" prices on the Date of Determination as recorded by the composite tape system or the exchange, as the case may be.

(c) Any Security that is not listed on a national securities exchange but is included in the National Market System (NMS) of the National Association of Securities Dealers, Inc.'s Automated Quotation System (NASDAQ) (such a Security is referred to as a NMS Security) will be valued at its last sale price on the Date of Determination as reported by NASDAQ or, if no sale occurred on the Date of Determination, at the mean between the highest closing "bid" and lowest closing "asked" prices on the Date of Determination, as reported by NASDAQ.

(d) Any Security that is not subject to valuation under subparagraph (a) or (b) of this section but for which "bid" and "asked" prices are reported by NASDAQ or another price quotation service will be valued at the mean between the highest closing "bid" and the lowest closing "asked" prices on the Date of Determination as reported by NASDAQ or, if not so reported, as reported in such other price quotation service for the over-the-counter market as the General Partner, in its sole discretion, determines fairly reflects the market for such Security.

(e) All other Securities and all other assets shall be assigned a value determined in good faith by the General Partner. With respect to funds or other investment vehicles in which the Partnership may invest, the General Partner may rely on the values reported by such entities in computing the value of the Partnership's assets but will carry the investment at the cost basis unless otherwise prudent.

(f) The Partnership will amortize its Organization and Offering expenses over sixty months. As of December 31 of each year, the Partnership shall reimburse the General Partner for the amortized share of any such expenses advanced or paid by the General Partner.

(g) Amounts withheld directly from the Partnership on account of foreign or other taxes will be treated as if such amounts had been received by the Partnership on the date of withholding and thereupon distributed to the Partners on whose behalf such withholding is deemed made. In such event, the General Partner will make such other adjustments in appropriate accounts as is consistent with this treatment.

(h) Appropriate reserves may be created, accrued and charged against Net Asset Value for contingent liabilities, as of the date any contingent liability becomes known to the General Partner. Any reserves shall reduce Net Asset Value for all purposes, including withdrawals.

6.1 Capital Accounts. A Partner's Capital Account shall consist of the following:

(a) An amount equal to the Partner’s original Capital Contribution;

(b) The additions, if any, to such account by reason of Capital Contributions; and

(c) The adjustments, if any, to such account in accordance with the provisions of Section 6.2, Section 7, and any other provision hereunder requiring such adjustment.

6.2 Certain Adjustments to Capital Accounts. The amount of (i) withdrawals, if any, made by a Partner, and (ii) any distributions made to Partners shall be deducted from such Partner's Capital Account as of the date of such withdrawal or distribution.

6.3 Maintenance and Modification of Capital Accounts.  The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulation 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Regulation. If the General Partner determines that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto (including, without limitation debits or credits relating to liabilities which are secured by contributed or distributed property or which are assumed by the Partnership, the General Partner or the Limited Partners) are computed in order to comply with such Regulations, the General Partner may make such modification without regard to Section 16 of this Agreement, provided that it is not likely to have a material effect on the amounts distributable to any Partner. The General Partner also shall (i) make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Partners and the amount of Partnership capital reflected on the Partnership's balance sheet, as computed for book purposes, in accordance with Regulations sections 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event this Agreement is deemed not to comply with Regulations section 1.704-1(b).

6.4 Carrying Values. The carrying values of all Partnership assets shall be adjusted each Fiscal Period in accordance with Regulation 1.704-1 (b)(2)(iv).

6.5 Transferees. Generally, a transferee (including an Assignee) of an Interest shall succeed to a pro rata portion of the Capital Account of the transferor; provided, however, that, if the transfer causes a termination of the Partnership under Section 708(b)(1)(B) of the Code, the Partnership's properties shall be deemed solely for federal income tax purposes, to have been distributed in liquidation of the Partnership to the holders of Partnership Interests (including such transferee) and re-contributed by such Persons in reconstitution of the Partnership. In such event, the carrying values of the Partnership properties shall be adjusted immediately prior to such deemed distribution. The Capital Accounts of such reconstituted Partnership shall be maintained in accordance with the principles of this Agreement.

6.6 Tax Capital Accounts. A tax capital account will be maintained for each Limited Partner (Tax Capital Account). Each Tax Capital Account equals (i) the Limited Partner's capital contribution, (ii) plus all items of recognized income and gain, and minus all items of recognized deduction and loss that are allocated as described below, and (iii) minus any distributions made with respect to such Interest. All allocations of income, gain, loss or deduction are reflected as appropriate increases or decreases in the Tax Capital Account in accordance with federal income tax accounting.

7.1 Allocation of Net Profits and Net Losses. Any Net Profits or Net Losses during any Fiscal Period shall be allocated as of the end of such Fiscal Period to the Capital Accounts of all the Partners in the proportion which each Partner's Capital Account as of the beginning of such Fiscal Period bore to the sum of the Capital Accounts of all the Partners as of the beginning of such Fiscal Period; however, if the General Partner determines that in order to comply with Rule IM-2110-1 of the National Association of Securities Dealers Inc.'s Conduct Rules and Interpretations thereunder (the Free Riding and Withholding Interpretation) concerning investments in securities of a public offering which trade at a premium in the secondary market whenever such trading commences (i.e., investments in "hot issues") a Partner cannot participate in the gain or loss, if any, attributable to such investments in "hot issues", the General Partner shall allocate such gain or loss, and related expenses, only to the Capital Accounts of Partners who are permitted to invest in "hot issues" under the Free Riding and Withholding Interpretation. Investments in any "hot issue" securities shall be set forth in a separate memorandum account for each Partner and any gain or loss, and related expenses, for such memorandum account shall be separately calculated.

With respect to each Limited Partner who has been allocated Net Profits to its Capital Account for a Profit Allocation Period, there shall be deducted from the Capital Account of such Limited Partner, and there shall be allocated to the Capital Account of the General Partner, as the General Partner's Profit Allocation, 20% of the excess of (i) the Net Profits allocated to such Limited Partner's Capital Account during the Profit Allocation Period, over (ii) the Loss Carry forward, if any, with respect to the Limited Partner applicable to the Profit Allocation Period.

8.1 Allocation of Profits and Losses for Federal Income Tax Purposes. As of the end of each taxable year of the Partnership, the items of income, gain, loss, or deduction recognized by the Partnership during such taxable year shall be allocated as provided below.

(a) Any income or gain (including capital gains and ordinary income) recognized during the year shall be allocated first among Limited Partners who have withdrawn capital from the Partnership during the year in proportion to and to the extent of the amount, if any, by which the amounts received on withdrawal from the Partnership exceed the Tax Capital Account balance (immediately prior to any adjustment hereunder for the year) for each such Limited Partner.

(b) Any income or gain (including capital gains and ordinary income) remaining after the allocation provided for in subparagraph (a) above shall be allocated among the Limited Partners in such a manner to reflect equitably in their respective Tax Capital Accounts amounts credited or debited to each Limited Partner's Capital Account pursuant to Section 6.

(c) Any loss or deduction (including capital and ordinary losses) recognized during the year shall be allocated first among Limited Partners who have withdrawn capital from the Partnership during the year, in proportion to and to the extent of the amount, if any, by which the Tax Capital Account balance (immediately prior to any adjustment hereunder for the year) for each such Interest exceeds the amounts received on withdrawal from the Partnership.

(d) Any loss or deduction (including capital and ordinary losses) remaining after the allocation provided for in subparagraph (c) above shall be allocated among the Limited Partners in such a manner to reflect in their respective Tax Capital Accounts amounts credited or debited to each Limited Partner's Capital Account pursuant to Section 6.

(e) The character of any item of income, gain, deduction or loss allocated pursuant to this Section 8 shall be made based upon a good faith determination of the character of the unrealized and realized items credited or debited to the Capital Accounts of the Limited Partner (i.e., ordinary income or loss, short-term, mid-term or long-term capital gain or loss).

(f) Any Limited Partner who withdraws amounts from the Partnership and, for any reason, was not allocated net profits equal to the difference between the amount received on withdrawal and his Tax Capital Account may be deemed to remain a Limited Partner holder solely for income tax purposes until such time as the balance of income or gain that should have been allocated in the year of withdrawal are so allocated.

(g) In the event any Partner unexpectedly receives any adjustments, allocations or distributions described in 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), and after giving effect to the allocations required hereunder, such Partner has an adjusted Capital Account deficit, items of Partnership income and gain (consisting of a pro rata portion of each item of Partnership income, including gross income and gain for the Partnership's fiscal year) shall be specifically allocated to such Partner in an amount and manner sufficient to eliminate, to the extent required by the Regulations, its adjusted capital account deficit created by such adjustments, allocations or distributions as quickly as possible.

(h) To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b) of the Code is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such item of gain or loss shall be specially allocated to the Partners in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such Section of the Regulations.

(i) Any gain allocated to the Partners upon the sale or other taxable disposition of any Partnership asset shall, to the extent possible after taking into account other required allocations of gain pursuant to this Section 8, be characterized as recapture income in the same proportions and to the same extent as such Partners have been allocated any deductions directly or indirectly giving rise to the treatment of such gains as recapture income.

8.2 Allocations for Tax Purposes Relating to Appreciated Property

(a) Except as otherwise provided herein, for federal income tax purposes, each item of income, gain, loss and deduction shall be allocated among the Partners in the same manner as its correlative item of "book" income, gain, loss or deduction is allocated pursuant to Section 6 of this Agreement.

(b) In an attempt to eliminate book-tax disparities attributable to contributed property or adjusted property, items of income, gain, loss and deduction shall be allocated for federal income tax purposes among the Partners as follows:

(1) (i) In the case of contributed property, such items attributable thereto shall be allocated among the Partners consistent with the principles of Section 704(c) of the Code to take into account the variation between the 704(c) value of such property and its adjusted basis at the time of the contribution; and

(ii) Any item of residual gain or residual loss attributable to a contributed property shall be allocated among the Partners in the same manner as its correlative item of "book" gain or loss is allocated pursuant to Section 6 of this Agreement.

(2) (i) In the case of an adjusted property, such items shall (A) first, be allocated among the Partners in a manner consistent with the principles of Section 704(c) of the Code to take into account the unrealized gain or unrealized loss attributable to such property and the allocations thereof pursuant to this Agreement, and (B) second, in the event such property was originally contributed property, be allocated among the Partners in a manner consistent with Section 8.2(b)(1) of this Agreement; and

(ii) any item of residual gain or residual loss attributable to an adjusted property shall be allocated among the Partners in the same manner as its correlative item of "book" gain or loss is allocated pursuant to Sections 6.1 and 8.2(b)(1) of this Agreement.

(3) All other items of income, gain, loss and deduction shall be allocated among the Partners in the same manner as their correlative item of "book" gain or loss is allocated pursuant to Sections 6.1 and 8 of this Agreement.

(c) To the extent Treasury Regulations promulgated pursuant to Section 704(c) of the Code permit a Partnership to utilize alternative methods to eliminate the disparities between the carrying value of property and its adjusted basis, the General Partner shall have the authority to elect the method to be used by the Partnership and such election shall be binding on all Partners.

8.3 Tax Withholding. To the extent the Partnership is required by law to withhold or to make tax payments on behalf of or with respect to any Partner (Tax Advances), the General Partner may cause the Partnership to withhold such amounts and make such tax payments as so required. All Tax Advances made on behalf of a Partner will, at the option of the General Partner, (i) be promptly paid to the Partnership by the Partner on whose behalf such Tax Advances were made or (ii) reduce any current withdrawal being made by such Partner (or, if no such withdrawal is being made by such Partner, be treated as a distribution to such Partner as of the last day of the Fiscal Period which includes the date the Tax Advance was remitted by the Partnership to the taxing authorities). Whenever the General Partner selects option (i), from the date 10 days after the receipt by the Partner on whose behalf the Tax Advance was made of Notice of the Tax Advance, the Tax Advance will bear interest at the highest rate permitted by law until repaid. Whenever the General Partner selects option (ii), for all other purposes of this Agreement, such Partner will be treated as having received the full amount of such withdrawal, unreduced by the amount of such Tax Advance. Each Partner hereby agrees to indemnify and hold harmless the Partnership and the General Partner from and against any liability with respect to Tax Advances required on behalf of or with respect to such Partner. Each Partner hereby agrees to promptly give the General Partner or the Partnership any true certification or affidavit that the General Partner may request in connection with this Section.

9.1 Management. The General Partner, to the exclusion of all Limited Partners, shall conduct the business of the Partnership and will make all decisions affecting the Partnership and the Partnership's assets. By way of illustration only, the General Partner:

(a) Shall have sole discretion in determining what distributions, if any, shall be made to the Partners (subject to the allocation provisions of this Agreement), shall execute various documents on behalf of the Partnership and the Partners pursuant to powers of attorney and supervise the liquidation of the Partnership if any event causing termination of the Partnership occurs. In order to facilitate the foregoing, each Limited Partner shall execute a power of attorney as described in Section 14;

(b) may cause the Partnership to buy, sell, hold or otherwise acquire or dispose of Securities and or assets in connection with the execution of the Partnership's business. In addition, the General Partner, on behalf of the Partnership, may retain a trading manager or adviser, including its Affiliates, to make any or all trading decisions regarding the Partnership and may delegate complete trading discretion to the manager or advisor; and

(c) may engage, and compensate on behalf of the Partnership from funds of the Partnership, persons, firms or corporations, including the General Partner and any of its affiliates, as in its sole judgment it shall deem advisable for the conduct and operation of the business of the Partnership, including brokers and dealers. In determining the compensation paid to such persons, the General Partner may take into account, among other things, the value of any research and other services provided by such person.

9.2 General Partner Authority.

(a) No person dealing with the General Partner shall be required to determine its authority to make any undertaking on behalf of the Partnership, nor to determine any fact or circumstance bearing upon the existence of its authority.

(b) Except as otherwise provided herein, the General Partner shall, in its sole and absolute discretion, determine whether to make any available election pursuant to the Code; provided, however, that the General Partner shall make an election under Section 754 of the code in accordance with applicable Regulations thereunder. The General Partner shall have the right to seek to revoke any such election (including, without limitation, the election under Section 754 of the Code) upon the General Partner's determination in its sole and absolute discretion that such revocation is in the best interest of the Partners.

The General Partner shall be the "tax matters partner' of the Partnership for federal income tax purposes.

9.3 Management Fees. As compensation to the General Partner for its services in administering the business and affairs of the Partnership each fiscal year, on the first day of each fiscal quarter an amount shall be deducted from the Capital Account of each Limited Partner and paid as a "Management Fee" to the General Partner. Such amount shall equal .500 percent (50.00 basis points or 50 one hundredths of one percent) of the value of that Capital Account based on the value of the assets and liabilities of the Partnership determined as of the opening of trading on that date pursuant to section 5.1. A Limited Partner who is permitted by the General Partner to contribute capital on a date other than the first day of a fiscal quarter shall be charged a prorated Management Fee with respect to such Capital Contribution. Limited Partners who are permitted to withdraw capital on a date other than the last day of a fiscal quarter shall not receive a refund of any Management Fee paid in advance. In addition, if a Limited Partner is permitted by the General Partner to withdraw profits prior to the date immediately preceding the first anniversary of that Limited Partner’s admission to the Partnership (whether as a result of the dissolution of the partnership of otherwise), the General Partner Profit Allocation shall not be made with respect to those withdrawn profits but the Management Fee shall be increased as specified in section 12.1. The General Partner may waive all of any portion of the Management Fee with respect to any Limited Partner in any fiscal quarter.

9.4 Partnership Expenses. The General Partner shall bear all of its own routine operating expenses without reimbursement from the Partnership. All of the Partnership's expenses shall be borne by the Partnership (or reimbursed to the General Partner to the extent such expenses are advanced by it). The Partnership’s expenses include, but are not limited to:

(a) expenses directly related to investment transactions and positions for the Partnership's account, including brokerage and sales commissions, fees and custody charges, costs of any outside accountants, attorneys or other experts or consultants engaged by the General Partner in connection with specific transactions (including reimbursement of the Partnership's advisers, whether or not they are affiliates of the General Partner, for research and due diligence expenses paid by them which are directly allocable to the Partnership's trades), and any legal fees and costs (including settlement and indemnification costs) arising in connection with any litigation or regulatory investigation instituted against the Partnership or the General Partner in connection with the affairs of the Partnership;

(b) any withholding or transfer taxes imposed on the Partnership or any of the Limited Partners as a result of its or their earnings, investments or withdrawals (which amounts will be assessed, where applicable to particular Partners, directly against the capital accounts of such Partners); and

(c) costs of the audit of the Partnership's annual financial statements, the preparation of its tax returns, any outside accounting or bookkeeping services, and the fees and expenses of the Partnership's legal counsel.

9.5 Other Business Activities. The General Partner and its Affiliates will devote such time and services to the Partnership as they deem necessary, but they shall not be required to devote their full time to the Partnership's business. The General Partner and its Affiliates are free to engage in other business activities (even if they conflict, or are in competition with the Partnership's business) including, but not limited to, the formation of other investment partnerships and the providing of advisory services to other clients. The Limited Partners acknowledge that such activities on the part of the General Partner or its Affiliates does not give rise to any obligation on their part to account to the Partnership or any Limited Partner for any profits or other benefits derived therefrom.

9.6 New General Partners. Additional or substitute general partners may be admitted to the Partnership pursuant to Section 16. Upon the admission of any substitute or additional general partner or general partners, this Agreement shall be amended (and each Limited Partner consents to such amendment) so that the provisions of this Agreement shall apply to such general partner or general partners in the same manner as now applicable to the General Partner, to the extent practicable.

9.7 Limited Partners. No Limited Partner:

(a) is entitled to any salary, draw or other compensation on account of the Limited Partner’s investment in the Partnership;

(b) shall participate in the Limited Partner’s capacity as a Limited Partner in the management of the business of the Partnership nor shall any Limited Partner have the power to contract for or bind the Partnership in any way;

(c) shall be liable for the debts, liabilities or other obligations of the Partnership except as may be provided for by law or under the terms of this Agreement.

 

10.1 Reports. As soon as is practicable after the conclusion of each fiscal year, the Partnership will send (i) financial statements (including a balance sheet and statement of income) of the Partnership for the fiscal year then ended, audited by an independent public accountant and (ii) tax information relating to the Partnership as is necessary for a Limited Partner to complete the Limited Partner’s federal income tax return. At the end of each calendar year the General Partner will send each Limited Partner a statement reflecting the Net Asset Value of each Limited Partner's Interest for the quarter then ended. The General Partner is authorized to expend Partnership funds to provide the foregoing information and to notify the Limited Partners of other information as the General Partner may deem appropriate. Limited Partners or their authorized representatives may inspect the Partnership books and records at the General Partner's offices during normal business hours upon reasonable written Notice to the General Partner.

11.1 Transfer and Assignments of Interests. Each Limited Partner expressly agrees that he will not assign, transfer or dispose of, by gift or otherwise, any of his Interest or any part or all of his right, title and interest in the capital or profits of the Partnership without the prior written consent of the General Partner. No transfer of Interests will be recognized by the Partnership without the prior written consent of the General Partner. No assignment or transfer will be permitted unless the General Partner is satisfied that (i) the assignment or transfer would not violate the 1933 Act or the laws of any state, (ii) notwithstanding such assignment or transfer, the Partnership shall continue to be classified as a partnership and not as a corporation or association under the Code and appropriate state taxing statutes, (iii) such transfer shall not cause the Partnership to become a publicly traded partnership under the Code and (iv) such assignment or transfer shall not require the Partnership to be registered as an Investment Company under the ICA . The General Partner may require an opinion of counsel from the Transferor confirming (i), (ii), (iii) and (iv) above. All costs related to such transfer (including attorney's fees) shall be borne by the Transferor.

11.2 Notice; Consent. If an assignment, transfer or disposition occurs by reason of the death of a Limited Partner or assignee, written Notice may be given by the duly authorized representative of the estate of the Limited Partner or assignee and shall be supported by proof of legal authority as may reasonably be requested by the General Partner. Any request for assignment or transfer shall be in writing to the General Partner. The written Notice required by this paragraph shall specify the name and address of the assignee and the date of assignment, shall include a statement by the assignee that he agrees to give the above described written Notice to the General Partner upon any subsequent assignment and to be bound by the terms of this Agreement and authorizes the General Partner, should it consent to the admission of the assignee as a substituted Limited Partner, to sign such assignee's name to this Agreement and to an amendment to the Partnership's Certificate of Limited Partnership (should such an amendment be advisable) as such assignee's attorney-in-fact. The General Partner may, in its sole discretion, waive receipt of the above-described Notice or waive any defect therein. No assignee, except upon consent of the General Partner (which consent may be withheld at its sole and absolute discretion), may become a substituted Limited Partner nor will the estate or any beneficiary of a deceased Limited Partner or assignee have any right to withdraw any capital or profits from the Partnership except by withdrawal of Interests. A substituted Limited Partner shall have all the rights and powers and shall be subject to all the restrictions and liabilities of his assignor; provided, however, that a substituted Limited Partner shall not be subject to those liabilities of which he was ignorant at the time he became a substituted Limited Partner and which could not be ascertained from the Certificate of Limited Partnership or this Agreement. Each Limited Partner agrees that with the consent of the General Partner any assignee may become a substituted Limited Partner without the further act or consent of any Limited Partner. Each Limited Partner agrees that he or she has no right to consent to any person or entity becoming a substituted Limited Partner. If the General Partner withholds consent, an assignee shall not become a substituted Limited Partner and shall not have any of the rights of a Limited Partner, except that the assignee shall be entitled to receive that share of capital or profits and shall have the right of withdrawal to which his assignor would otherwise have been entitled. An assigning Limited Partner shall remain liable to the Partnership as provided in the Act, regardless of whether his assignee becomes a substituted Limited Partner.

11.3 Transfers and Assignments of General Partner Interest. The General Partner may transfer or assign part of its Interest to another person provided that (i) the Interest received by the Transferee will immediately be converted to a Limited Partners Interest, (ii) a Majority in Interest approves the transfer, and (iii) the transfer meets the conditions of Section 11.1.

12.1 Withdrawal of Limited Partners. Limited Partners have the right to withdraw all or a portion of the Interests they initially purchase on sixty (60) days prior written notice to the General Partner as of the end of any calendar quarter. Withdrawals are subject to a withdrawal penalty of 5% (five percent) of the value of any Interests withdrawn prior to the twelve-month anniversary of the withdrawing Limited Partner's admission to the Partnership. Because of the possible delay in determining accurate valuations of certain of the Securities held by the Partnership. To the extent of the Fund’s available liquidity, withdrawing Limited Partners will receive 90% of the estimated value of their Interests within 30 days after the quarter-end following notice. The balance will be distributed after the next succeeding quarter-end and the Net Asset Value has been audited. The death, incompetency, withdrawal, insolvency or dissolution of a Limited Partner shall not terminate or dissolve the Partnership, and a Limited Partner, his estate, custodian or personal representative shall have no right to withdraw or value the Limited Partner's interest in the Partnership except as provided in this Section 12. Each Limited Partner (and any assignee of a Limited Partner's Interest) waives on behalf of himself and his estate, and directs the legal representatives of his estate and any person interested therein to waive, the furnishing of any inventory, accounting or appraisal of the assets of the Partnership and any right to an audit or examination of the books of the Partnership other than as provided for in this Agreement.

12.2 Mandatory Withdrawals. If the General Partner, in its sole judgment, believes that based on applicable law or controlling precedent, the Partnership's assets are deemed to be "plan assets" under ERISA, the Partnership may require Interests owned by certain retirement plans or IRAs to be withdrawn as of the Effective Date of Withdrawal. The General Partner may, for any reason, terminate a Limited Partner's Interest in the Partnership and require their withdrawal as of the Effective Date of Withdrawal.

12.3 Payment. Payment of withdrawals are contingent upon the following conditions: (i) all liabilities, contingent or otherwise, of the Partnership, except any liability to Partners on account of their Capital Contributions, have been paid or there remains property of the Partnership sufficient to pay them, (ii) receipt by the Partnership of the proceeds from the liquidation of securities necessary to finance the withdrawal, and (iii) the General Partner shall have timely received a Request for Withdrawal, as defined below. Upon withdrawal, a Partner (or any assignee of whom the General Partner has received Notice as described below) shall receive from the Partnership for his withdrawn Interest, an amount equal to the value of such Interest less any amount owing by such Partner (and assignees, if any) to the Partnership pursuant to the terms of this Agreement as of the Effective Date of Withdrawal. If withdrawal is requested by an assignee, all amounts owed hereunder by the Partner to whom such Interest was sold by the Partnership, as well as all amounts owed by all other assignees that owned such Interest prior to the current assignee shall be deducted from the amount paid to such assignee upon withdrawal of his Interest. As described above, an assignee shall not be entitled to effect a withdrawal until the General Partner has received written Notice of the assignment, transfer or disposition under which the assignee claims an interest in the Interests to be withdrawn and shall have no claim against the Partnership or the General Partner with respect to distributions or amounts paid on withdrawal of Interests prior to the receipt by the General Partner of the notice. As used in this agreement, a Request for Withdrawal shall mean a letter, in the form specified by the General Partner, sent by a Limited Partner (or any assignee of whom the General Partner shall have received a written Notice as described above) and received by the General Partner at least sixty (60) days, or such lesser period as shall be acceptable to the General Partner, in advance of the requested Effective Date of Withdrawal. The General Partner may also, in its discretion, declare additional withdrawal dates for some or all of the Interests.

12.4 Withdrawal of General Partner. The General Partner may withdraw from the Partnership at any time on forty-five (45) days written Notice by first class mail, postage prepaid, to each Limited Partner (without breach of this Agreement).

13.1 Sale of Interests. The General Partner, on behalf of the Partnership, shall use its best efforts to qualify or exempt Interests for sale under the securities laws of the United States and other jurisdictions as the General Partner shall deem advisable. The General Partner is authorized to take the actions and make arrangements for the sale of the Interests as it deems appropriate, subject to the terms hereof.

14.1 Power of Attorney. Each Limited Partner by his execution of this Agreement does irrevocably constitute and appoint the General Partner, with power of substitution, as his true and lawful attorney-in-fact, in his name, place and stead, to execute, acknowledge, swear to (and deliver as may be appropriate) on his behalf and file and record in the appropriate public offices and publish (as may be appropriate): (i) this Agreement, including any amendments adopted as provided herein, (ii) certificates of limited partnership in various jurisdictions, and amendments thereto, and certificates of assumed name or doing business under a fictitious name with respect to the Partnership; (iii) all conveyances and other instruments which the General Partner deems appropriate to qualify or continue the Partnership as a partnership in the jurisdictions in which the Partnership may conduct business or which may be required to be filed by the Partnership or the Partners under the laws of any jurisdiction to reflect the dissolution or termination of the Partnership or to reorganize or re-file the Partnership in a different jurisdiction, provided that the reorganization or re-filing does not result in a material change in the rights of the partners; (iv) to admit additional Limited Partners and, to the extent that it is necessary under the laws of any jurisdiction to file amended certificates or agreements of limited partnership or other instruments to reflect such admission, to execute, file and deliver such certificates, agreements and instruments; (v) to file, prosecute, defend, settle or compromise litigation, claims or arbitrations on behalf of the Partnership and (vi) to enter into agreements with third parties (including the General Partner and Affiliates of the General Partner) and various brokerage agreements with various brokers or dealers including brokers or dealers that provide investment information or other services to the General Partner. The Power of Attorney granted herein shall be irrevocable and deemed to be a power coupled with an interest and shall survive the incapacity or death of a Limited Partner. Each Limited Partner agrees to be bound by any representation made by the General Partner and by any successors thereto, acting in good faith pursuant to such Power of Attorney, and each Limited Partner hereby waives any and all defenses which may be available to contest, negate or disaffirm the action of the General Partner and any successors thereto, taken in good faith under such Power of Attorney. In addition to this Power of Attorney, each Limited Partner agrees to execute a special Power of Attorney on a document separate from this Agreement. The form of Power of Attorney to be executed is included in the Subscription Agreement. In the event of any conflict between this Agreement and any instruments filed by such attorney pursuant to the power of Attorney granted herein, this Agreement shall control.

15.1 Indemnification of General Partner. The General Partner, and any Affiliate of the General Partner engaged in the performance of services on behalf of the Partnership, shall (a) be indemnified by the Partnership for any liability or loss suffered by the General Partner or such Affiliate and shall (b) have no liability to the Partnership or to any Limited Partner for any liability or loss suffered by the Partnership which arises out of any action or inaction of the General Partner or such Affiliate if (i) the General Partner has determined, in good faith, that such course of conduct was in the best interests of the Partnership and (ii) such liability or loss determined in a final judgment by a court to be primarily attributable to the indemnitee’s willful misfeasance, bad faith or gross negligence was not the result of negligence or misconduct by the General Partner or any such Affiliate.

15.2 Limitations. Any amounts payable to the General Partner or its Affiliates pursuant to the foregoing are recoverable only out of the assets of the Partnership and not from the Limited Partners. The Partnership shall not incur the cost of that portion of liability insurance that insures the General Partner and its Affiliates for any liability as to which the General Partner and its Affiliates are prohibited from being indemnified.

15.3 Advances of Fees and Expenses. The Partnership may advance to the General Partner and its Affiliates legal expenses and other costs incurred as a result of legal action initiated against it or its affiliates, if the following conditions are satisfied: (i) the legal action relates to the performance of duties or services by the General Partner or its Affiliates on behalf of the Partnership; (ii) the General Partner or its Affiliates undertake to repay the advanced funds to the Partnership in cases in which they would not be entitled to indemnification pursuant to Section 15.1.

16.1 Amendments with Assent of the General Partner. If at any time during the term of the Partnership the General Partner shall deem it necessary or desirable to amend this Agreement, it may proceed to do so, provided that the amendment shall be effective only if embodied in an instrument signed by both the General Partner and by a Majority in Interest of the Limited Partners (unless otherwise provided for in this Agreement) and if made in accordance with and to the extent permissible under the Act. Any supplemental or amendatory agreement shall be adhered to and have the same effect from and after its effective date as if the same had originally been embodied in and formed a part of this Agreement. No meeting procedure or specified Notice period is required in the case of amendments made with the assent of the General Partner, mere receipt of an adequate number of un-revoked written Consents being sufficient. The General Partner may amend this Agreement without any action by Limited Partners in order (i) to clarify any clerical inaccuracy, ambiguity or reconcile any inconsistency (including any inconsistency between the Agreement and the Offering Memorandum), (ii) to add to the representations, duties or obligations of the General Partner or surrender any right or power of the General Partner for the benefit of the Limited Partners, (iii) to attempt to ensure that the Partnership is not taxed as an association for federal or state income tax purposes and to prevent the Partnership from becoming classified as a publicly traded partnership, (iv) so as to qualify or maintain the qualification of the Partnership as a limited partnership in any jurisdiction, (v) to delete or add any provision of or to this Agreement required to be deleted or added by the Staff of the SEC or any other federal agency or any state "Blue Sky" official or similar official or in order to be exempt from registration under the 1933 Act, (vi) to change the name of the Partnership and to make any modifications to this Agreement to reflect the admission of an additional or substitute general partner, (vii) to make any amendment to this Agreement which the General Partner deems advisable, provided that such amendment is not adverse to the Limited Partners, or that is required by law, and (viii) to make any amendment that is appropriate or necessary, in the opinion of the General Partner, to prevent the Partnership or the General Partner or its directors, officers or controlling persons from in any manner being subjected to the provisions of the ICA, as amended, or to prevent any of the Partnership's assets from being deemed "plan assets" under regulations adopted under ERISA.

16.2 Meetings. Any Limited Partner upon written request addressed to the General Partner shall be entitled to obtain from the General Partner, at the Limited Partner's expense, a list of the names and addresses of record of all Limited Partners and the percent Interest held by each; provided that the Limited Partner represents that the list will remain confidential and not to be used for commercial purposes. Upon receipt of a written request, signed by Limited Partners owning at least 10% of the Interests then owned by Limited Partners, that a meeting of the Partnership be called to vote upon any matter which the Limited Partners may vote upon pursuant to this Agreement, the General Partner shall, by written Notice to each Limited Partner of record mailed within fifteen (15) days after such receipt, call a meeting of the Partnership. The meeting shall be held at least thirty (30) but not more than sixty (60) days after the mailing of the notice, and the Notice shall specify the date of, a reasonable place and time for, and the purpose of the meeting.

16.3 Amendments and Actions without Assent of General Partner. At any meeting called pursuant to Section 16.2, upon the Consent (which may be in person or by proxy) of the Limited Partners (or as otherwise provided for by state law), the following actions may be taken, irrespective of whether the General Partner concurs: (i) this Agreement may be amended in accordance with and only to the extent permissible under the Act, provided, however, that Consent of 100% of the Limited Partners shall be required in the case of the following amendments: changing or altering Section 16.1 and/or this Section 16.3, extending the term of the Partnership, reducing the Capital Account of any Partner or modifying the percentage of profits, losses or distributions to which any Partner is entitled; in addition, reduction of the Capital Account of any assignee or modification of the percentage of profits, losses or distributions to which an assignee is entitled shall not be effected by amendment or supplement to this Agreement without such assignee's express written agreement; (ii) the Partnership may be dissolved; (iii) the General Partner may be removed and replaced; (iv) a new general partner or general partners may (to the extent permitted by the Act) be elected if the General Partner elects to withdraw from the Partnership or additional general partners are desired; (v) the sale of all or substantially all of the assets of the Partnership may be approved; and (vi) any contract for services with the General Partner or its affiliates may be canceled on sixty (60) days written Notice without penalty. If the General Partner is removed or withdraws, its Interest shall be valued and withdrawn as of the Effective Date of Withdrawal.

17.1 Delaware Law. The validity and construction of this Agreement shall be performed entirely within the State of Delaware.

17.2 Priority Among Limited Partners. No Limited Partner shall be entitled to any preference over any other Limited Partner in regard to the affairs of the Partnership, a priority or preference.

17.3 Notices. All Notices under this Agreement shall be in writing and, except as set forth in the following sentence, shall be effective upon personal delivery, (including facsimile) or if sent by first class mail, postage prepaid addressed to the last known address of the party to whom the Notice is to be given, upon the deposit of the Notice in the United States mails. Requests for Withdrawal and Notices of assignment, transfer or disposition of Interests shall be effective upon receipt by the General Partner.

17.4 Binding Effect. This Agreement shall inure to and be binding upon all of the parties, their successors and assigns, custodians, heirs and personal representatives. For purposes of determining the rights of any Partner or assignee, the Partnership and the General Partner may rely upon the Partnership records as to who are Partners and assignees including all rights that they may have hereunder.

17.5 Captions. Captions in no way define, limit, extend or describe neither the scope of this Agreement nor the effect of any of its provisions.

17.6 Counterparts. This Agreement may be executed in several counterparts, including by signature of the Partnership's Subscription Agreement, Power of Attorney and Partnership Agreement Execution Page, and as executed will constitute one agreement, binding on all of the parties hereto.

17.7 Complete Agreement. This Agreement, the Subscription Agreement, Power of Attorney and Partnership Agreement Execution Page and the Confidential Offeree Questionnaire executed and delivered by Limited Partners in connection with their Capital Contributions shall constitute the complete agreement among the parties concerning the subject matter hereof.

17.8 Group Ownership of Limited Partnership Interests. A Limited Partnership Interest may be held jointly by husband and wife as community property, or by husband and wife or by unrelated persons as joint tenant or tenants in common, as shown on the signature page for this Agreement or in the Partnership’s books and records. In any multiple ownership case, the Interest will be considered to be held by the persons collectively as one Limited Partner, and the Partnership and each General Partner will be entitled to consider any Notice, vote, check, or similar document signed by any one of the persons in the ownership group to bind all persons in the group. Despite treatment of the ownership group as one Limited Partner and each member of an ownership group will be entitled to examine the books and records of the Partnership.

17.9 Legal Counsel. Each Partner acknowledges and understands that this Agreement and related documents have been prepared by counsel for the General Partner and that such counsel has not represented or been engaged to provide services to any other Partner or to the Partnership. Each Partner further acknowledges and understands that such counsel or other counsel may hereafter be engaged by the Partnership or by the General Partner to provide legal services and representation as the General Partner may determine, and in such event, such counsel or other counsel may concurrently represent the General Partner and the Partnership, and the General Partner may execute on behalf of the Partnership and the Partners any consent to such concurrent representation that such counsel or other counsel may request pursuant to the applicable rules of professional conduct for lawyers. Each Partner acknowledges and understands that counsel for the Partnership or any other Partner does not represent any Partner in the absence of a clear and explicit agreement to that effect between the Partner and such counsel with respect to the Partnership or the General Partner, and in the absence of such agreement, such counsel shall owe no duties to any Partner (even if such counsel represents such other Partner in matters unrelated to the Partnership). Each Partner agrees that in the event of any dispute between any of the Partners and the Partnership, or between any of the Partners or the Partnership, on the one hand, and the General Partner or any of its Affiliates represented by counsel for the Partnership, on the other hand, counsel for the Partnership may represent the Partnership or the General Partner or such Affiliates, or both, in such dispute to the extent permitted by such rules, and such Partner hereby consents to such representation.



IN WITNESS WHEREOF, this Agreement is executed by the General Partner and the Initial Limited Partners as of the date first written above and by the other Limited Partners as of the date their subscriptions for Interests are accepted by the General Partner, as reflected on the applicable Limited Partner Signature Pages included in their Subscription Documents.





GENERAL PARTNER: LIMITED PARTNER:

MURDOCK OPPORTUNITY G.P., L.P.



BY:________________________________ BY:__________________________________

NAME:_____________________________ NAME:_______________________________

TITLE:______________________________ TITLE:________________________________

 

NAME	AMOUNT	DATE CONTRIBUTED
		2001
		2001
		2001
		2001
		2001

 

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