EFTA00805983.pdf

Draft dated April 8, 2018 CONFIDENTIAL AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF NEOTENY 4, LP (A Delaware Limited Partnership) Dated as of [ 1, 2018 THE LIMITED PARTNERSHIP INTERESTS PROVIDED FOR IN THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. LIMITED PARTNERS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. EXCEPT AS OTHERWISE PROVIDED IN THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT, A LIMITED PARTNER MAY NOT SELL, ASSIGN, TRANSFER, PLEDGE OR OTHERWISE DISPOSE OF ALL OR ANY PART OF SUCH LIMITED PARTNER'S INTEREST IN THE PARTNERSHIP UNLESS THE GENERAL PARTNER (AS DEFINED HEREIN) HAS CONSENTED THERETO. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE REGULATORY AUTHORITY HAS APPROVED OR DISAPPROVED THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OR THE LIMITED PARTNERSHIP INTERESTS PROVIDED FOR HEREIN. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. EFTA00805983  CONFIDENTIAL NEOTENY 4, LP TABLE OF CONTENTS ARTICLE I DEFINITIONS 1 1.1 Definitions 1 ARTICLE II ORGANIZATION; POWERS 1 2.1 Continuation of Limited Partnership. 1 2.2 Name; Offices 1 2.3 Purpose; Powers 2 ARTICLE III PARTNERS 2 3.1 Names, Addresses and Subscriptions. 2 3.2 Status of Limited Partners. 2 3.3 Additional Limited Partners. 4 3.4 Other Activities Of Partners. 6 3.5 Co-Investments. 6 3.6 Advisory Committee 7 ARTICLE IV MANAGEMENT AND CONTROL OF PARTNERSHIP 7 4.1 Management by General Partner 7 4.2 Powers of General Partner 8 ARTICLE V FEES AND EXPENSES 8 5.1 Organizational Expenses 8 5.2 Payment of Expenses. 8 5.3 Management Fee 9 ARTICLE VI CAPITAL OF THE PARTNERSHIP 9 6.1 Obligation to Contribute. 9 6.2 Return of Certain Amounts Subject to Subsequent Drawdown 11 6.3 Failure to Make Required Payment. 11 6.4 Currency 15 ARTICLE VII DISTRIBUTIONS 16 7.1 Amount, Timing and Form 16 7.2 Distributions. 16 7.3 Other Special Distributions 17 7.4 Payment of Taxes 17 7.5 Certain Distributions Prohibited 18 ARTICLE VIII CAPITAL ACCOUNTS; ALLOCATIONS 19 8.1 Capital Accounts 19 8.2 Allocations of Net Gain or Loss. 19 8.3 Other Specially Allocated Items 20 8.4 Admission of Additional Partners. 20 ARTICLE IX DURATION OF THE PARTNERSHIP 21 9.1 Term of Partnership. 21 9.2 Dissolution Upon Withdrawal of General Partner 21 EFTA00805984  CONFIDENTIAL 9.3 Dissolution by Partners. 21 ARTICLE X LIQUIDATION OF ASSETS ON DISSOLUTION 21 10.1 General. 21 10.2 Liquidating Distributions. 22 10.3 Expenses of Liquidator. 22 10.4 Duration of Liquidation 22 10.5 Liability for Returns 22 10.6 Post-Dissolution Investments 22 ARTICLE XI LIMITATIONS ON TRANSFERS AND WITHDRAWALS OF PARTNERSHIP INTERESTS 23 11.1 Transfer of General Partner's Interest 23 11.2 Transfers of Limited Partnership Interests 23 11.3 Admission of Substituted Limited Partners. 25 11.4 Non-Compliant Transfer. 26 11.5 Multiple Ownership. 26 11.6 No Withdrawal Rights. 26 ARTICLE XII EXCULPATION AND INDEMNIFICATION 26 12.1 Exculpation 26 12.2 Indemnification 28 12.3 Limitation by Law. 29 12.4 Return of Certain Distributions. 30 ARTICLE XIII AMENDMENTS, VOTING AND CONSENTS 30 13.1 Amendments 30 13.2 Voting and Consents 31 ARTICLE XIV ADMINISTRATIVE PROVISIONS 31 14.1 Keeping of Accounts and Records; Certificate of Limited Partnership 31 14.2 Inspection Rights. 32 14.3 Financial Reports. 32 14.4 Annual Meeting. 33 14.5 Notices 33 14.6 Accounting Provisions. 33 14.7 Tax Provisions 33 14.8 General Provisions 37 Appendix I Definitions Appendix II Regulatory and Tax Allocations EFTA00805985  CONFIDENTIAL NEOTENY 4, LP AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT, dated as of this [ 1 day of [ 1, 2018 (this "Agreement"), is by and among Neoteny 4 GP, LLC, a Delaware limited liability company, as the sole general partner (the "General Partner"), and those firms, corporations and other Persons listed on the List of Partners as limited partners who execute a counterpart of this Agreement (collectively, the "Limited Partners"). The General Partner and the Limited Partners are sometimes referred to herein collectively as the "Partners." WHEREAS, Neoteny 4, LP (the "Partnership") was formed as a Delaware limited partnership by the filing of a Certificate of Limited Partnership for the Partnership with the Office of the Secretary of State of the State of Delaware on February 2, 2018; and WHEREAS, the Partnership is currently governed by a limited partnership agreement dated February 2, 2018 between the General Partner and the Initial Limited Partner (the "Initial Agreement"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto wish to amend and restate the Initial Agreement to read in its entirety as follows: ARTICLE I DEFINITIONS 1.1 Definitions. Capitalized terms used herein and not otherwise defined have the meanings assigned to them in Appendix I hereto. ARTICLE II ORGANIZATION; POWERS 2.1 Continuation of Limited Partnership. The Partners agree to continue the Partnership subject to the terms of this Agreement in accordance with the Delaware Revised Uniform Limited Partnership Act, as amended from time to time (the "Delaware Act"), and the Initial Agreement is hereby amended and restated in its entirety by its deletion and replacement by this Agreement. The Initial Limited Partner hereby withdraws from the Partnership simultaneously with the admission of the first additional Limited Partner, and none of the Partners shall have any claim against the Initial Limited Partner as such. 2.2 Name; Offices. The name of the Partnership is "Neoteny 4, LP". The Partnership shall have the exclusive right to use such name as long as the Partnership continues. The name of the Partnership may be changed at any time by the General Partner without the consent or approval of the Limited Partners. The principal office of the Partnership shall be located initially at do Neoteny 4 GP, LLC, do Prague & Company, P.C., 15 Walnut Street, Suite 150, Wellesley, Massachusetts 02481. The initial address of the Partnership's registered office in Delaware is EFTA00805986  CONFIDENTIAL 251 Little Falls Drive, Wilmington, County of New Castle, and its initial registered agent at such address for service of process is Corporation Service Company. The General Partner may change the locations of the principal office and registered office of the Partnership to such other locations, and may change the registered agent of the Partnership in Delaware to such other Person, as the General Partner may specify from time to time in a written notice to the other Partners. The General Partner, in its sole discretion, may cause the Partnership to open additional offices. 2.3 Purpose; Powers. The primary purpose of the Partnership is to make venture capital investments, principally by investing in and holding equity, equity-oriented and debt securities of early/seed-stage privately held companies selected by the General Partner. The general purposes of the Partnership are to buy, hold, sell and otherwise invest in securities, whether readily marketable or not; to exercise all rights, powers, privileges and other incidents of ownership or possession with respect to securities held or owned by the Partnership; to enter into, make and perform all contracts and other undertakings; and to engage in all activities and transactions as may be necessary, advisable or desirable, as determined by the General Partner, to carry out the foregoing. ARTICLE III PARTNERS 3.1 Names, Addresses and Subscriptions. The name, address, electronic mail address and Subscription of each Partner are set forth in the List of Partners. The General Partner shall cause the List of Partners to be revised, without the necessity of obtaining the consent of any other Partner, to reflect any changes in the information contained thereon occurring pursuant to the terms of this Agreement. Each Partner shall promptly provide the Partnership with the information required to be set forth for such Partner on the List of Partners and shall thereafter promptly notify the Partnership of any change to such information. 3.2 Status of Limited Partners. (a) Limited Liability. No Limited Partner, in its capacity as such, shall be liable for the debts and obligations of the Partnership so long as such Limited Partner does not take part in the control of the business of the Partnership; provided, however, that each Limited Partner shall be required to pay to the Partnership (i) any unpaid capital contributions that such Limited Partner has agreed to make to the Partnership pursuant to Article VI, to the extent provided in Section 17-502(a) and (b) of the Delaware Act; (ii) the amount of any distribution that such Limited Partner is required to return to the Partnership pursuant to the Delaware Act; and (iii) the unpaid balance of any other payments that such Limited Partner expressly is required to make to the Partnership pursuant to this Agreement, including, without limitation, Section 12.4, or pursuant to such Limited Partner's subscription agreement, if any. (b) Effect of Death. Dissolution or Bankruptcy. Upon the death, incompetency, bankruptcy, insolvency, liquidation or dissolution of a Limited Partner, the rights and obligations of such Limited Partner under this Agreement shall inure to the benefit of, and 2 EFTA00805987  CONFIDENTIAL shall be binding upon, such Limited Partner's successor(s), estate or legal representative, and each such Person shall be treated as an assignee of such Limited Partner's interest for purposes of Article XI until such time as such Person may be admitted as a substituted Limited Partner pursuant to that Article. (c) No Control of Partnership. Except as otherwise provided herein, no Limited Partner shall have the right or power to: (i) withdraw or reduce its contribution to the capital of the Partnership; (ii) cause the dissolution and winding up of the Partnership; or (iii) demand or receive property in return for its capital contributions. No Limited Partner, in its capacity as such, shall take any part in the control of the affairs of the Partnership, undertake any transactions on behalf of the Partnership, or have any power to sign for or otherwise to bind the Partnership. (d) Anti-Money Laundering Provisions. (i) Each Limited Partner hereby agrees to use its commercially reasonable efforts to ensure that: (1) None of the monies that such Limited Partner will contribute to the Partnership shall be derived from, or related to, any activity that is deemed criminal under United States law or the law of the jurisdiction in which such activity took place; and (2) No contribution or payment by such Limited Partner to the Partnership, to the extent that such contribution or payment is within such Limited Partner's control, and no distribution to such Limited Partner (assuming such distribution is made in accordance with instructions provided to the General Partner by such Limited Partner) shall cause the Partnership or the General Partner to be in violation of the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 or any other anti-money laundering laws or regulations, in each case as amended and any successor statute thereto and including all regulations promulgated thereunder (collectively, the "Anti-Money Laundering Laws"). (ii) Each Limited Partner: (1) shall promptly notify the General Partner if, to the knowledge of such Limited Partner, there has been any violation of Section 3.2(d)(i); (2) shall provide the General Partner, promptly upon receipt of the General Partner's written request therefor, with any additional information regarding such Limited Partner or its beneficial owner(s) that the General Partner deems necessary or advisable in order to ensure compliance with all applicable laws, regulations and administrative pronouncements concerning and the Anti-Money Laundering Laws or other criminal activities; and (3) understands and agrees that if; at any time, the requirements of Section 3.2(d)(i) are not satisfied, or if otherwise required by the Anti-Money Laundering Laws or any applicable law or regulation related to other criminal activities, the General Partner may take appropriate actions to ensure that the Partnership and the 3 EFTA00805988  CONFIDENTIAL General Partner are in compliance with all such applicable laws, regulations and pronouncements. (iii) Each Limited Partner acknowledges and agrees that (I) the Partnership or General Partner may release confidential information regarding such Limited Partner and, if applicable, any of its beneficial owners, to governmental authorities if the General Partner, in its sole discretion, determines that releasing such information is in the best interest of the Partnership in light of any regulations or administrative pronouncements promulgated under the laws referred to in Section 3.2(d1(ft(2), and (2) the General Partner, without the consent of any Limited Partner and notwithstanding any other provision of this Agreement, may amend any provision of this Agreement in order to effectuate the intent of this Section 3.2(d). 3.3 Additional Limited Partners. (a) Additional Subscriptions before Final Closing Date. Subject to the provisions of this Agreement, during the period from the date on which investors are first admitted to the Partnership (the "Initial Closing Date") through December 31, 2018 (the "Final Closing Date"), the General Partner is authorized, but not obligated, to admit to the Partnership one or more additional Limited Partners (each, an "Additional Limited Partner") and to accept additional Subscriptions from existing Limited Partners, who shall be deemed to be Additional Limited Partners to the extent of such additional Subscriptions. Additional Subscriptions shall be accepted and Additional Limited Partners shall be admitted to the Partnership pursuant to this Section 3.3(aI only i£ (i) Each such Additional Limited Partner shall contribute, on or after the date of its admission or the acceptance of its additional Subscription, the same percentage of its Subscription or its additional Subscription, as the case may be, as has been contributed by the other non-defaulting Limited Partners prior to such date (not including any contributions pursuant to (ji) below); (ii) Unless otherwise waived by the General Partner in its sole discretion, each such Additional Limited Partner shall contribute to the Partnership at the same time an interest-equivalent amount equal to the interest that would be payable on a debt obligation in the amount of the contribution made pursuant to clause (a), computed at a rate equal to the Prime Rate in effect on the Initial Drawdown Date plus two percent (2%) per annum for the period from the due date or dates on which the other Partners were required to make their earlier contributions to the date of such contribution, and the allocations otherwise provided for in this Agreement shall be adjusted pursuant to Section 8.3(b) so that the increase in the Additional Limited Partner's Capital Account attributable to the contribution of such interest- equivalent amount is fully offset by special allocations of loss or expense to such Partner; (iii) Upon payment of the amount provided by Sections 3.3(a)(i) and (11), the Partnership shall: (1) pay to the Management Company, as an additional Management Fee, the incremental Management Fee that would have been payable prior to such 4 EFTA00805989  CONFIDENTIAL admission with respect to the Subscription of the Additional Limited Partners had such Additional Limited Partners been admitted on the Initial Closing Date; and (2) at the discretion of the General Partner, retain for any valid Partnership purpose some or all of the balance of the amount paid to the Partnership under Section 3.3(a)(i) (together with the portion of the interest paid pursuant to Section 3.3(a)(ii) with respect to such retained portion), and/or distribute some or all of such balance to the Partners (other than the Additional Limited Partners admitted on such admission date) apportioned among such previously admitted Partners in proportion to their respective Contributions. Such distribution shall be deemed to consist of (A) a portion of the initial Contribution made by the Additional Limited Partners which the General Partner determines to return to the previously admitted Partners, plus (B) the interest-equivalent amount paid pursuant to Section 3.3(axii) with respect to such portion of the initial Contribution made by the Additional Limited Partners which the General Partner determines to return to the previously admitted Partners. The portion of any distribution to a Partner described under clause (A) of the immediately preceding sentence shall be added back to the unpaid portion of such Partner's Subscription which may be called again by the Partnership, and the portion of any distribution to a Partner described under clause (B) of the immediately preceding sentence shall be treated as a special distribution of interest income which does not increase the unpaid portion of such Partner's Subscription; and (iv) No distribution has been made by the Partnership to the Partners pursuant to Article VII (other than pursuant to Section 7.4) prior to the date of such Additional Limited Partner's admission or additional Subscription. Each Partner acknowledges and agrees that the intent of this Section 3.3(a) is to allow each Additional Limited Partner to be admitted to the Partnership with a proportionate interest (based on relative Subscriptions) in the Partnership, and to cause such Additional Limited Partner to bear its proportionate share (based on relative Subscriptions) of Management Fees and other Partnership Expenses, without decreasing the aggregate Subscriptions of other Partners. Accordingly, the amount contributed by a Limited Partner pursuant to Section 3.3(061 shall be treated as a Contribution by such Limited Partner, and the interest described in Section 3.3(a)(ii) shall be treated as interest income of the Partnership. The portion of the interest income and the amount of incremental Management Fees described in Section 3.3(a)(iii) shall be specially allocated items of income and expense to such Additional Limited Partner to the extent required such that such Additional Limited Partner has been allocated a proportionate share of all Management Fees incurred by the Partnership after the date hereof. The portion of the interest income described in clause (B) of Section 3.3(a)(iii)(2) shall be a specially allocated and distributed item of income to previously admitted Partners to the extent paid to them, and the amount described in clause (A) of Section 3.3(a)(iii)(2) shall be a special return of Contributions to previously admitted Partners which is added back to their unpaid Subscriptions to the extent distributed to them. Subject to the foregoing and to the provisions of Section 8.4, each previously admitted and Additional Limited Partner shall be treated in all respects as if it had been an original Limited Partner of the Partnership (with a proportionate share of aggregate Contributions), and shall be subject to all the obligations of the Limited Partners hereunder including, without limitation, the obligation to make all subsequent Contributions required by this Agreement. 5 EFTA00805990  CONFIDENTIAL (b) Additional Subscriptions after Final Closing Date. After the Final Closing Date, the General Partner, with the consent of either the Advisory Committee or a majority-in- interest of the Limited Partners, is authorized to admit one or more Persons to the Partnership as Additional Limited Partners or accept additional Subscriptions from the Partners. The terms of any such admission or additional Subscription shall be fixed by the General Partner at the time of such admission or additional Subscription. (c) Accession to Agreement. Each Person who is to be admitted as an Additional Limited Partner or substituted Limited Partner pursuant to this Agreement shall accede to this Agreement by executing, together with the General Partner, a counterpart signature page to this Agreement providing for such admission, which shall be deemed for all purposes to constitute an amendment to this Agreement providing for such admission but shall not require the consent or approval of any other Partner. The General Partner shall make any necessary filings with the appropriate governmental authorities and take such actions as are necessary under applicable law to effectuate such admission. 3.4 Other Activities Of Partners. Any Partner and its respective partners, members, stockholders, officers, directors, managers, trustees, employees, agents and Affiliates may invest, participate, or engage in (for their own accounts or for the accounts of others), or may possess an interest in, other financial ventures, and investment, professional, academic, civic and political activities of every kind, nature and description, independently or with others, including but not limited to: management of other investment partnerships; investment in, financing, acquisition or disposition of securities; investment and management counseling; providing brokerage and investment banking services; or serving as officers, directors, managers, consultants, employees, advisers or agents of other companies, partners of any partnership, members of any limited liability company or trustees of any trust (and may receive wages, fees, commissions, remuneration or reimbursement of expenses in connection with these activities), including, without limitation, Portfolio Companies, whether or not such activities may conflict with any interest of the Partnership or any of the Partners. Without limiting the generality of the foregoing, the Partners acknowledge and agree that the member(s) or manager(s) of the General Partner may be employed on either a full-time or part-time basis by parties other than the Partnership or the General Partner and are under no obligation to devote any minimum amount of their time to the affairs of the Partnership or the General Partner. Neither the Partnership nor any Partner shall have any rights, solely by virtue of this Agreement, in or to any activities permitted by this Section 3.4 or to any wages, fees, income, profits or goodwill derived from such activities. Notwithstanding anything to the contrary contained in this Agreement or any other document, no Partner shall have any rights in or to any technology or opportunities arising out of the relationship between any Affiliate of the General Partner and the Massachusetts Institute of Technology, the MIT Media Lab or any of their respective Affiliates by virtue of this Agreement or such Partner's relationship with the Partnership. 3.5 Co-Investments. The General Partner may permit one or more investors (which for this purpose, may consist of third parties and/or Affiliates of the General Partner) to invest in transactions in which the Partnership invests if the General Partner determines in its sole discretion that their investment would be beneficial in consummating such investment, successfully operating the Portfolio Company or its assets, disposing of such investment or 6 EFTA00805991  CONFIDENTIAL otherwise adding value to such investment. In addition, the General Partner may, in its discretion, grant one or more Partners rights to co-invest with the Partnership (either directly or indirectly by means of co-investment vehicles formed by the General Partner and/or its Affiliates) in instances where the General Partner determines a co-investment allocation to be available. Co-investors are expected to invest in the same securities as the Partnership and at the same valuation, but may be subject to such fees (including carried interest and management fees) and expenses as may be negotiated with the General Partner and/or its Affiliates. The General Partner and/or its Affiliates may make an investment in any vehicle formed for a co-investment opportunity. 3.6 Advisory Committee. (a) Appointment; Removal. The Partnership may form a committee of at least three members (the "Advisory Committee"), which shall consist exclusively of Limited Partners (or designated representatives thereof), who shall be appointed by the General Partner and who may be removed or replaced by the General Partner. (b) Duties. The duties of the Advisory Committee (or its sub-committees), if formed, shall be to: (i) Be available to confer with the General Partner regarding the progress of Portfolio Investments; (ii) Review and advise the General Partner regarding potential conflicts of interest submitted to them by the General Partner; and (iii) Undertake such other duties as are required by this Agreement or reasonably requested by the General Partner. Neither the Advisory Committee nor any member thereof (acting in such capacity) shall undertake any action on behalf of the Partnership with any third party or have the power to bind the Partnership or any authority to act for or on its behalf. (c) Reimbursement of Expenses. Members of the Advisory Committee may receive from the Partnership reimbursement for any reasonable out-of-pocket travel expenses incurred in connection with their attendance at meetings of the Advisory Committee, but shall receive no fees or other compensation from the Partnership in connection with their duties as members of the Advisory Committee. ARTICLE IV MANAGEMENT AND CONTROL OF PARTNERSHIP 4.1 Management by General Partner. The management, policies and control of the Partnership shall be vested exclusively in the General Partner. The Limited Partners shall take no part in the control or management of the affairs of the Partnership nor shall a Limited Partner have any authority to act for or on behalf of the Partnership. 7 EFTA00805992  CONFIDENTIAL 4.2 Powers of General Partner. Except as otherwise explicitly provided herein, the General Partner shall have the power on behalf and in the name of the Partnership to implement the objectives of the Partnership and to exercise any rights and powers the Partnership may possess, including, without limitation, the power to cause the Partnership to make any elections available to the Partnership under applicable tax or other laws (other than elections specifically prohibited by Section 14.7(a)). No Person, in dealing with the General Partner, shall be required to determine the General Partner's authority to make any commitment or engage in any undertaking on behalf of the Partnership, or to determine any fact or circumstance bearing upon the existence of the authority of the General Partner. Notwithstanding any other provision of this Agreement, without the consent of any Limited Partner or other Person being required, the Partnership is hereby authorized to execute, deliver and perform, and the General Partner on behalf of the Partnership and itself, as applicable, is hereby authorized to execute and deliver (a) a subscription agreement with each Limited Partner, (b) a management agreement with the Management Company, and (c) any amendment of any such document (in accordance with the terms of this Agreement) and any agreement, document or other instrument contemplated thereby or related thereto. The General Partner is hereby authorized to enter into the documents described in the preceding sentence on behalf of the Partnership, but such authorization shall not be deemed a restriction on the power of the General Partner to enter into other documents on behalf of the Partnership. ARTICLE V FEES AND EXPENSES 5.1 Organizational Expenses. The Partnership shall reimburse the General Partner and its Affiliates for all Organizational Expenses incurred by any of them. 5.2 Payment of Expenses. (a) General. Subject to Section 5.2(b), the Partnership agrees to assume and pay all operating expenses attributable to the Partnership's activities (collectively, "Partnership Expenses") on the terms and conditions herein set forth. (b) General Partner Expenses. The General Partner or its Affiliates shall bear only the following expenses: compensation of employees and consultants of the General Partner and/or the Management Company, including salaries of the employees of the General Partner and/or the Management Company; and fees and expenses for consultants and administrative, clerical and related support services, office space for the General Partner and/or the Management Company and related utilities and telephone, insofar as they relate to the investment activities of the Partnership and not set forth in Section 5.2(c). (c) Partnership Expenses. Partnership Expenses borne by the Partnership shall include, without limitation: the Management Fee; Organizational Expenses; liquidation expenses of the Partnership; any sales or other taxes (except as provided below), fees or government charges which may be assessed against the Partnership; commissions or brokerage fees or similar charges incurred in connection with the purchase or sale of securities (including 8 EFTA00805993  CONFIDENTIAL any merger fees payable to third parties and whether or not any such purchase or sale is consummated); expenses of members of the Advisory Committee (including travel-related costs and expenses); the costs and expenses (including travel-related expenses) of hosting annual or special meetings for the Partnership, or otherwise holding meetings or conferences with Limited Partners, whether individually or in a group; interest expense for borrowed money (if any); all expenses relating to litigation and threatened litigation involving the Partnership, including indemnification expenses; expenses attributable to normal and extraordinary investment banking, commercial banking, accounting, appraisal, legal, custodial and registration services provided to the Partnership and any expenses attributable to consulting services, including in each case services with respect to the proposed purchase or sale of securities by the Partnership that are not reimbursed by the issuer of such securities or others (whether or not any such purchase or sale is consummated); travel expenses related to the investment activities of the Partnership; expenses associated with outsourcing certain financial reporting and accounting services provided to the Partnership; costs of preparing and delivering financial statements and other reports to the Partners, as well as all other communications with the Partners; costs of preparing and filing all income, informational and other governmental returns, reports and filings; premiums for liability or other insurance to protect the Partnership, the General Partner, the Management Company, the members of the Advisory Committee and any of their respective partners, members, stockholders, officers, directors, employees, agents or Affiliates in connection with the activities of the Partnership; and all other expenses properly chargeable to the activities of the Partnership. 5.3 Management Fee. Subject to the limitations set forth below, the Partnership shall pay the Management Company a management fee (the "Management Fee"), equal to two percent (2%) per annum of the aggregate Subscriptions of the Limited Partners. Notwithstanding the foregoing, with respect to the quarter in which the Initial Closing Date occurs, the Management Fee for such quarter will be pro-rated based on the number of days remaining in such quarter as of the Initial Closing Date (and including such date) divided by the total number of days in such quarter. Payments of the Management Fee shall be made quarterly in advance on the first Business Day of each fiscal quarter of the Partnership, provided that the first payment shall be due upon the Initial Drawdown Date (for Management Fees accrued from the Initial Closing Date). ARTICLE VI CAPITAL OF THE PARTNERSHIP 6.1 Obligation to Contribute. (a) In General. Each Partner shall make capital contributions to the Partnership, in accordance with and subject to the terms of this Agreement, in an aggregate amount equal to such Partner's Subscription. Except as provided in Section 6.3(e), the amount of capital required to be contributed by each Partner on the occasion of a drawdown shall be determined by the General Partner based on the ratio of such Partner's unpaid Subscription to the aggregate unpaid Subscriptions of all Partners. All capital contributions shall be made to the Partnership by check or wire transfer or other transfer of federal or other immediately available U.S. funds on the relevant due date to the account designated for such purpose. Each Partner 9 EFTA00805994  CONFIDENTIAL shall be obligated to make payment in full of each required capital contribution together with any interest or other amounts due thereon, and no Partner shall make (nor shall the General Partner or the Partnership be obligated to accept) less than the full amount of any such required capital contribution. (b) Initial Capital Contributions. Each Partner's initial capital contribution shall be due upon not less than ten (10) Business Days' prior written notice from the General Partner, such date being referred to herein as the "Initial Drawdown Date". (c) Additional Contributions: Deficiency Drawdowns. The General Partner is authorized to draw down additional capital contributions from time to time for any purposes contemplated under this Agreement upon not less than ten (10) Business Days' prior written notice. Notwithstanding the foregoing, if any Limited Partner has failed to make a capital contribution when due (including such Partner's initial capital contribution), the General Partner in its sole discretion may call for a deficiency drawdown of contributions from the other Partners to replace the unpaid contribution upon five (5) Business Days' prior written notice. For purposes of Section 6.3, the amount of a Limited Partner's contribution that is not paid when due shall be deemed to include such Partner's ratable share, determined on a grossed-up basis, of any deficiency drawdown with respect to such Limited Partner's unpaid contribution. (d) Procedure for Notice of Capital Calls: Rescission or Postponement. The General Partner shall send written notice of a call for capital contributions, or a rescission or postponement of such a call, to each Limited Partner by first class mail or electronic mail. A notice calling for capital contributions may be rescinded or postponed by the General Partner by prompt written notice. (e) Offsets Against Distributions: No Interest or Withdrawals. In connection with any call for capital contributions under this Agreement, the General Partner is authorized to apply cash that would otherwise be distributed to a Partner in satisfaction of such Partner's obligation to make a capital contribution pursuant to such call, to the extent thereof. The amount applied shall be deemed distributed to the Partner by the Partnership and then contributed by the Partner to the Partnership in satisfaction of such Partner's obligation to contribute capital hereunder and such Partner's Contribution shall be adjusted accordingly. No interest shall accrue on any Partner's Contribution. No Partner shall have the right to withdraw or to be repaid its Contribution except as specifically provided in this Agreement. (0 General Partner's Authority to Reduce Subscriptions. The General Partner in its sole discretion may reduce the Subscriptions of all Partners on a pro rata basis. The General Partner shall give each Partner written notice of the reduction, which notice shall include the amount of such Partner's reduced Subscription. (g) Contributions of the General Partner. The General Partner shall contribute capital to the Partnership in satisfaction of its Subscription (if any) at the time capital calls are made pursuant to this Agreement. In addition to its general partnership interest, the General Partner may also hold limited partnership interests in the Partnership. The Subscription of the 10 EFTA00805995  CONFIDENTIAL General Partner and/or its Affiliates, in aggregate, shall be at least $100,000 (which may be in the form of limited partnership interests). 6.2 Return of Certain Amounts Subject to Subsequent Drawdown. (a) Unused Contributions. The General Partner in its sole discretion may cause the Partnership to return to the Partners all or any portion of capital contributions that have not been invested in one or more Portfolio Investments or applied to the payment or reimbursement of expenses or other purposes. Such contributions shall be distributed to the Partners pro rata in proportion to the respective amounts of contributions made by them with respect to the drawdown that gave rise to the contribution that is being returned. (b) Return of Contributions upon Admission of Additional Partner. Immediately following the initial (or additional) capital contribution of an Additional Limited Partner, the General Partner, in its sole discretion, may return to each of the non-contributing Partners, in proportion to their Contributions, a portion of their earlier capital contributions to the Partnership in an aggregate amount not in excess of the new contribution. If the General Partner intends to exercise its discretion to return capital contributions pursuant to the preceding sentence, it may, in its sole discretion, reduce the amount of the contribution required to be made by the Additional Limited Partner pursuant to Section 3.3(a)(i) so that, on a net basis after the return of contributions, all Partners will have contributed the same percentage of their Subscriptions. The General Partner, in its sole discretion, may also pay to the Partners as "guaranteed payments" (as defined in Section 707(c) of the Code), including the Additional Limited Partner, in proportion to their Contributions, all or a portion of the interest-equivalent amounts contributed to the Partnership pursuant to Section 3.3(alffil. (c) Effect of Return of Contributions. The General Partner shall make all appropriate adjustments, including to the amount of the Partners' respective Contributions, unpaid Subscriptions, Capital Accounts and any other items that are adjusted for capital drawdowns, so that the amounts of all such items are, to the maximum extent possible, the same as they would have been had the capital drawdown that gave rise to any contribution that is returned pursuant to Section 6.2(a) or Section 6.2(b) never occurred. No such adjustments shall be made, however, to reflect any amounts paid or distributed to a Partner that are attributable to the payment to such Partner of any interest-equivalent amounts contributed to the Partnership pursuant to Section 3.3(a)(ii). A reduction of a Partner's Capital Account pursuant to this Section 6.2(c) shall not be treated as a distribution for purposes of this Agreement, unless the context so requires. 6.3 Failure to Make Required Payment. (a) Interest. Except as otherwise provided in this Agreement, upon any failure by a Limited Partner to pay a capital contribution in full when due, interest will accrue at the Default Rate on the outstanding unpaid balance of such capital contribution, from and including the date such capital contribution was due until the earlier of the date of payment of such capital contribution by such Partner (or a transferee) or the date on which the General Partner imposes a default charge pursuant to Section 6.3(b)(i). The "Default Rate" with respect 11 EFTA00805996  CONFIDENTIAL to any period shall be the lesser of (i) a rate equal to the Prime Rate in effect on the date such capital contribution is due plus six percent (6%) or (ii) the highest interest rate for such period permitted by applicable law. The General Partner, in its sole discretion, may waive the requirement to pay interest, in whole or in part. (b) Default. Except as otherwise provided in this Agreement, if any Limited Partner fails to make a capital contribution when due, and such failure continues for ten (10) Business Days after receipt by such Partner of written notice of such failure, then such Partner (a "Defaulting Partner") shall be in default. The Partnership shall be entitled to enforce the obligations of each Partner to make the contributions to capital specified in this Agreement, and the Partnership shall have all remedies available at law or in equity in the event any such contribution is not so made. The remedies provided for in this Section 6.3(b) are in addition to and not in limitation of any other right or remedy of the Partnership provided by law or equity, this Agreement, or any other agreement entered into by or among any one or more of the Partners and/or the Partnership (including, without limitation, any subscription agreement relating to the Partnership). Each Limited Partner hereby agrees that the remedy at law for damages resulting from its default under this Agreement is inadequate because the funding of Partnership investments and other obligations requires the timely availability of required capital contributions. Upon the occurrence of a default, the General Partner may, in its sole discretion, pursue one or more of the following alternatives: (i) Impose a Default Charge upon the Defaulting Partner pursuant to Section 6.3(c); (ii) Offer the Defaulting Partner's entire interest in the Partnership to the other Partners for purchase, in proportion to the other Partners' Subscriptions (with Partners accepting offers being permitted to take up offers declined by other Partners in proportion to their Subscriptions), at a price for that interest equal to the lesser of the then fair market value of the interest or the pre-default balance in the Defaulting Partner's Capital Account, subject to such other terms as the General Partner in its sole discretion shall determine, prov