<PAGE>1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Optical Radiation Corporation
(Name of Issuer)
Common Stock, Par Value $0.50
(Title of Class of Securities)
6838361
(CUSIP Number of Class of Securities)
Martin E. Franklin
Benson Eyecare Corporation
Suite B-302
555 Theodore Fremd Avenue
Rye, New York 10580
(914) 967-9400
(Name, Address and Telephone Number of Person)
Authorized to Receive Notices and Communications
Copies to:
William J. Grant, Jr.
Willkie Farr & Gallagher
153 East 53rd Street
New York, NY 10022
(212) 821-8000
January 4, 1994
(Date of Event which Requires
Filing of this Schedule)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following: / /
Check the following box if a fee is being paid with this statement: /X/
<PAGE>2
SCHEDULE 13D
CUSIP No. 6838361
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benson Partners I, L.P.
13-3744098
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC / /
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
- 0 - shares of Common Stock (See Item 5)
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 374,900 shares of Common Stock (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON - 0 - shares of Common Stock (See Item 5)
WITH
10 SHARED DISPOSITIVE POWER
374,900 shares of Common Stock (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
See Item 5 below
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5 below
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>3
SCHEDULE 13D
CUSIP No. 6838361
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benson Services, Inc.
13-3741354
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
- 0 - shares of Common Stock (See Item 5)
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 374,900 shares of Common Stock (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON - 0 - shares of Common Stock (See Item 5)
WITH
10 SHARED DISPOSITIVE POWER
374,900 shares of Common Stock (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
See Item 5 below
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5 below
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>4
SCHEDULE 13D
CUSIP No. 6838361
1 NAME OF REPORT PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Benson Eyecare Corporation
13-3368387
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
- 0 - shares of Common Stock (See Item 5)
NUMBER OF 8 SHARED VOTING POWER
SHARES
BENEFICIALLY 374,900 shares of Common Stock (See Item 5)
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
PERSON - 0 - shares of Common Stock (See Item 5)
WITH
10 SHARED DISPOSITIVE POWER
374,900 shares of Common Stock (See Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON
See Item 5 below
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
See Item 5 below
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>5
This Schedule 13D is being filed on behalf of the Reporting Entities
(defined below) relating to the common stock, par value $0.50 per share (the
"Common Stock"), of Optical Radiation Corporation, a California corporation
(the "Company").
Item 1. Security and Issuer.
This statement relates to the Common Stock, par value $0.50 per share,
of the Company. The principal executive offices of the Company are located at
1300 Optical Drive, Azusa, California 91702.
Item 2. Identity and Background.
(a) This statement is being filed on behalf of (i) Benson Partners I,
L.P., a Delaware limited partnership ("Benson Partners"), (ii) Benson
Services, Inc., a Delaware corporation ("Benson Services") and (iii) Benson
Eyecare Corporation, a Delaware corporation ("Benson Eyecare"). The sole
general partner of Benson Partners is Benson Services. Benson Services is a
wholly owned subsidiary of Benson Eyecare. Martin E. Franklin and Warren B.
Kanders, the Chairman and Vice Chairman, respectively, of Benson Eyecare
beneficially own 20.5% and 16.7%, respectively, of the outstanding shares of
common stock of Benson Eyecare and may be deemed to control Benson Eyecare.
Benson Partners, Benson Services and Benson Eyecare are hereinafter
collectively referred to as the "Reporting Entities." Information with
respect to the directors and executive officers of Benson Services and Benson
Eyecare is set forth on Schedule I hereto.
(b) The address of the principal business and principal office of each
of the Reporting Entities is Suite B-302, 555 Theodore Fremd Avenue, Rye, New
York 10580.
(c) The principal business of Benson Partners is to invest in the Common
Stock of the Company. The principal business of Benson Services is to act as
general partner of Benson Partners. Benson Eyecare is a leading distributor
of ready-to-wear reading glasses and value priced sunglasses to mass
merchandisers, drug stores and supermarkets and is the largest operator of
ophthalmologist-based dispensaries in the United States.
(d) None of the Reporting Entities and, to the best of their knowledge,
none of the individuals referred to in paragraph (a) has, during the last five
years, been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors).
(e) None of the Reporting Entities and, to the best of their knowledge,
none of the individuals referred to in paragraph (a) has, during the last five
years, been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or
<PAGE>6
state securities laws or finding any violation with respect to such laws.
(f) Except as set forth in Schedule I, each of the individuals referred
to in paragraph (a) is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
The 374,900 shares of Common Stock beneficially owned by the Reporting
Entities (the "Acquired Shares") were acquired in brokered transactions for an
aggregate purchase price of $5,415,344.25. The primary source of funds for
the purchase of the Acquired Shares was investment capital contributed by the
partners of Benson Partners. A portion of the purchase price of the Acquired
Shares was attributable to margin borrowings.
Item 4. Purpose of Transaction.
The Reporting Entities have purchased the Acquired Shares as an
investment and may from time to time acquire or dispose of additional shares
of Common Stock through open market or privately negotiated transactions
depending on existing market and economic conditions. The Reporting Entities
intend to review their investment in the Company on a continuing basis and,
depending upon the price and availability of shares of Common Stock,
subsequent developments affecting the Company, the Company's business and
prospects, other investment and business opportunities available to the
Reporting Entities and other factors considered relevant, may decide to
increase or decrease the size of their investment in the Company.
Because Benson Eyecare and the Company provide complementary consumer
products and services through similar channels of distribution and have
excellent reputations in the eyecare industry, in July 1993 Benson Eyecare
initiated discussions with the Company regarding a possible friendly business
combination. Benson Eyecare pursued such discussions with the management of
the Company on several occasions thereafter. At the conclusion of the
discussions, the Company indicated that it was not in a position to consider
an offer for the Company at such time.
Although the Reporting Entities continue to be interested in the
Company, as of the date hereof, the Reporting Entities are holding the
Acquired Shares solely for investment purposes. The Reporting Entities have
made no decision to increase or decrease the size of their investment in the
Company and, except as described above, have no present plans or proposals
with respect to any material change in the Company's business or corporate
structure or any other action referred to in clauses (a) through (j) of Item 4
of Schedule 13D.
<PAGE>7
Item 5. Interest in Securities of the Issuer.
(a) As of the date of this Schedule, Benson Partners is the beneficial
owner of 374,900 shares of Common Stock. By reason of the provisions of Rule
13d-3 of the Securities Exchange Act of 1934, Benson Services, Benson Eyecare
and Messrs. Franklin and Kanders may be deemed to own beneficially the
Acquired Shares. The Acquired Shares represent 6.17% of the outstanding
shares of Common Stock, based upon the 6,072,049 shares of Common Stock
outstanding as of November 15, 1993 as reported by the Company in its
Quarterly Report on Form 10-Q for the fiscal quarter ended October 31, 1993.
(b) The Reporting Entities share the power to vote or to direct the
vote, and share the power to dispose or to direct the disposition of, the
Acquired Shares.
(c) The following sets forth all transactions by or on behalf of Benson
Partners involving the Common Stock for the 60 days prior to the date of the
filing of this Schedule 13D, indicating (i) the date of the transaction, (ii)
the number of shares of Common Stock purchased and (iii) the price per share
with respect to each transaction. All such transactions were executed in
conventional brokerage transactions on the NASDAQ National Market System.
Number Price
Date of Shares Per Share
12/03/93 18,300 $13.25
12/06/93 50,000 13.50
12/06/93 31,800 13.50
12/14/93 25,000 14.00
12/15/93 10,000 13.875
12/16/93 15,000 14.00
12/17/93 5,000 13.875
12/17/93 5,000 14.00
12/20/93 10,000 14.00
12/21/93 30,000 14.125
12/22/93 20,000 14.516
12/22/93 10,000 14.375
12/23/93 2,500 14.75
12/28/93 7,261 15.25
12/28/93 17,739 15.25
12/30/93 12,500 15.375
01/04/94 32,500 15.3269
01/04/94 33,333 15.50
01/04/94 16,667 15.50
01/05/94 4,336 15.375
01/05/94 664 15.375
01/06/94 15,000 15.75
01/06/94 1,000 15.75
01/07/94 1,300 15.625
(d) Not applicable.
(e) Not applicable.
<PAGE>8
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
The affairs of Benson Partners are governed by an Agreement of Limited
Partnership dated December 7, 1993 (the "Partnership Agreement") among Benson
Services, as general partner (the "General Partner"), and each of the limited
partners that is a party thereto (each a "Limited Partner"). A copy of the
Partnership Agreement is attached as Exhibit II to this Schedule 13D.
The purpose of Benson Partners, as set forth in the Partnership
Agreement, is to acquire up to 9.9% of the Common Stock of the Company. The
General Partner is authorized to conduct and manage the business and affairs
of Benson Partners and is responsible for purchasing, selling, voting and
exercising all rights with respect to the Acquired Shares. The General
Partner will hold all proxies with respect to the Acquired Shares.
No Limited Partner may transfer, sell or assign his or its interest in
Benson Partners without the prior written consent of the General Partner. The
General Partner may not transfer, sell or assign its interest in Benson
Partners without the prior written consent of all Limited Partners.
Profits and losses of Benson Partners will be allocated 80% to the
Limited Partners pro rata based upon their respective capital contributions
and 20% to the General Partner. The General Partner will contribute 1% of the
capital of Benson Partners. The Limited Partners will contribute an amount
not to exceed $5.5 million. Subject to certain limitations, the General
Partner may distribute Acquired Shares to all partners pro rata from time to
time in accordance with the positive balances of their capital accounts.
Upon dissolution and winding up of Benson Partners, the assets of Benson
Partners (including any Acquired Securities) may be distributed to the
partners in cash or in kind in proportion to each partner's capital account.
In the event Benson Eyecare acquires more than 50% of the outstanding Common
Stock, Benson Partners will be dissolved and each Limited Partners may elect
to receive, in lieu of any distribution in cash or in kind, registered shares
of common stock of Benson Eyecare at a price of $8 per share.
The Partnership Agreement contains certain other provisions and
agreements between the partners, including, but not limited to, capital
contributions, distributions, organization and indemnification. The terms of
the Partnership Agreement may be amended with the consent of the General
Partner and 75% of the limited partnership interests.
Except as set forth in this statement, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) among or
between the Reporting Entities and any other person with respect to any
securities of the Company, including but not limited to transfer or voting of
any such securities, finders fees, joint ventures, loan or option
<PAGE>9
arrangements, puts or calls, guarantees of profits, division of property or
loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit I -- Joint Acquisition Statement Pursuant to Rule 13d-1(f)(1)
Exhibit II -- Agreement of Limited Partnership dated December 7, 1993 of
Benson Partners I, L.P.
<PAGE>10
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: January 13, 1994
BENSON PARTNERS I, L.P.
By: Benson Services, Inc.
General Partner
By: /s/Martin E. Franklin
President
BENSON SERVICES, INC.
By: /s/Martin E. Franklin
President
BENSON EYECARE CORPORATION
By: /s/Martin E. Franklin
Chairman
90070185
<PAGE>11
Schedule I
A. Benson Services, Inc.
Business Principal
Name and Position Address Occupation
Martin E. Franklin* Suite B-302 Chairman,
President, CEO 555 Theodore Fremd Ave. Benson Eyecare
and Director Rye, NY 10580
Warren B. Kanders Suite B-302 Vice Chairman,
Director 555 Theodore Fremd Ave. Benson Eyecare
Rye, NY 10580
Ian G.H. Ashken* Suite B-302 CFO,
Vice President, 555 Theodore Fremd Ave. Benson Eyecare
Treasurer, Asst. Rye, NY 10580
Secretary and
Director
Peter H. Trembath Benson Eyecare General Counsel
Secretary and 10900 Red Circle Dr. Benson Eyecare
General Counsel Minnetonka, MN 55343
Desiree DeStefano Suite B-302 Vice President,
Vice President 555 Theodore Fremd Ave. Benson Eyecare
Rye, NY 10580
* Citizen of the United Kingdom.
<PAGE>12
B. Benson Eyecare Corporation
Business Principal
Name and Position Address Occupation
Martin E. Franklin* Suite B-302 Chairman,
Chairman, CEO 555 Theodore Fremd Ave. Benson Eyecare
and Director Rye, NY 10580
Warren B. Kanders Suite B-302 Vice Chairman,
Vice Chairman 555 Theodore Fremd Ave. Benson Eyecare
and Director Rye, NY 10580
Ian G.H. Ashken* Suite B-302 CFO,
CFO, Asst Secretary 555 Theodore Fremd Ave. Benson Eyecare
and Director Rye, NY 10580
Douglas S. Roberts 406 Channel Drive Corporate Advisor
Director Monmouth Beach, NJ 08701 IVAX Corporation
1950 Swarthmore Ave.
Lakewood, NJ 08701
Burtt R. Ehrlich Smith, Train Counsel Consultant
Director 667 Madison Ave.
18th Floor
New York, NY 10021
Dr. Charles F. Sydnor Alamance Eye Center Doctor
Director 1214 Vaughn Rd. Alamance Eye
Burlington, NC 27215 Center
Dr. Charles D. Fritch Fritch Eye Care Doctor
Director 2525 Eye St., Suite A&B Fritch Eye Care
Bakersfield, CA 93301
Raymond S. Troubh 10 Rockefeller Plaza, #712 Director,
Director New York, NY 10020 Benson Eyecare
Desiree DeStefano Suite B-302 Vice President,
Vice President 555 Theodore Fremd Ave. Benson Eyecare
Rye, NY 10580
Peter H. Trembath Benson Eyecare General Counsel
Secretary and 10900 Red Circle Dr. Benson Eyecare
General Counsel Minnetonka, MN 55343
* Citizen of the United Kingdom.
<PAGE>13
Exhibit Index
Exhibit I -- Joint Acquisition Statement Pursuant to Rule 13d-1(f)(1)
Exhibit II -- Agreement of Limited Partnership dated December 7, 1993 of
Benson Partners I, L.P.
<PAGE>1
Exhibit I
Joint Acquisition Statement
Pursuant to Rule 13d-1(f)(1)
The undersigned acknowledge and agree that the foregoing statement on
Schedule 13D is filed on behalf of each of the undersigned and that all
subsequent amendments to this statement on Schedule 13D shall be filed on
behalf of each of the undersigned without the necessity of filing additional
joint acquisition statements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the completeness
and accuracy of the information concerning him or it contained therein, but
shall not be responsible for the completeness and accuracy of the information
concerning the other, except to the extent that he or it knows or has reason
to believe that such information is inaccurate.
Dated: January 13, 1994
BENSON PARTNERS I, L.P.
By: Benson Services, Inc.
General Partner
By: /s/Martin E. Franklin
President
BENSON SERVICES, INC.
By: /s/Martin E. Franklin
President
BENSON EYECARE CORPORATION
By: /s/Martin E. Franklin
Chairman
<PAGE>15
Exhibit II
AGREEMENT OF LIMITED PARTNERSHIP
OF
BENSON PARTNERS I, L.P.
Dated December 7, 1993
<PAGE>16
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II FORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Name of Partnership . . . . . . . . . . . . . . . . . . . . . 5
2.3 Principal Office, Resident Agent, Registered Office . . . . . 5
2.4 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III PURPOSES AND POWERS . . . . . . . . . . . . . . . . . . . . . 5
3.1 Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV THE GENERAL PARTNER . . . . . . . . . . . . . . . . . . . . . 7
4.1 Powers of the General Partner . . . . . . . . . . . . . . . . 7
4.2 Actions Requiring Consent . . . . . . . . . . . . . . . . . . 8
4.3 Responsibilities of the General Partner; Meeting of Partners . 8
4.4 Partnership Expenses . . . . . . . . . . . . . . . . . . . . . 8
4.5 Tax Filings . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.6 Limitations on Power of the General Partner . . . . . . . . . 9
ARTICLE V TRANSFER OF INTERESTS; PLEDGES; WITHDRAWALS;
ADDITIONAL LIMITED PARTNERS; LIMITED PARTNERS'
POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1 Transfer of Interests . . . . . . . . . . . . . . . . . . . . 9
5.2 Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.3 Expulsion . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.4 Consequences of Withdrawal or Expulsion . . . . . . . . . . . 10
5.5 Amount Payable to Withdrawn Partner . . . . . . . . . . . . . 11
5.6 Timing of Withdrawal Payment . . . . . . . . . . . . . . . . . 11
5.7 Retention of Rights . . . . . . . . . . . . . . . . . . . . . 12
5.8 Effect of Withdrawal as to Other Partners . . . . . . . . . . 12
5.9 Additional Limited Partners . . . . . . . . . . . . . . . . . 12
5.10 Limitations on Powers of the Limited Partners . . . . . . . . 12
ARTICLE VI CAPITAL CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . 12
6.1 Initial Capital Contributions . . . . . . . . . . . . . . . . 12
6.2 Additional Capital Contributions . . . . . . . . . . . . . . . 13
6.3 Failure to Contribute . . . . . . . . . . . . . . . . . . . . 13
6.4 General Partner's Capital Contribution . . . . . . . . . . . . 13
6.5 Capital Contributions by Institutional Limited Partners . . . 13
ARTICLE VII ALLOCATIONS AND INTERIM DISTRIBUTIONS . . . . . . . . . . . . 14
7.1 Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.2 Proration of Income and Deductions . . . . . . . . . . . . . . 15
7.3 Contributed Property . . . . . . . . . . . . . . . . . . . . . 16
7.4 Interim Distributions . . . . . . . . . . . . . . . . . . . . 16
<PAGE>17
7.5 Assignor-Assignee Allocations . . . . . . . . . . . . . . . . 16
ARTICLE VIII DISSOLUTION OF THE PARTNERSHIP;
WINDING UP AND LIQUIDATION . . . . . . . . . . . . . . . . . . 17
8.1 Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.2 Winding Up and Liquidation . . . . . . . . . . . . . . . . . . 17
8.3 Accounting on Dissolution . . . . . . . . . . . . . . . . . . 18
8.4 Application of Partnership Properties . . . . . . . . . . . . 18
8.5 Option to Purchase Benson Corp. Stock Upon Certain Dissolution
Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.6 Valuation of Assets and Related Matters . . . . . . . . . . . 19
ARTICLE IX NOTICES AND PAYMENTS . . . . . . . . . . . . . . . . . . . . . 19
9.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.2 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE X CERTAIN REPRESENTATIONS,
WARRANTIES AND AGREEMENTS . . . . . . . . . . . . . . . . . . 19
10.1 Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10.2 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10.3 No Breach or Default . . . . . . . . . . . . . . . . . . . . . 20
10.4 No Governmental Consents . . . . . . . . . . . . . . . . . . . 20
10.5 Investment Representation . . . . . . . . . . . . . . . . . . 20
10.6 Purchase of Securities of Target Company . . . . . . . . . . . 21
10.7 Accuracy of Information . . . . . . . . . . . . . . . . . . . 21
10.8 Compliance with Applicable Laws . . . . . . . . . . . . . . . 21
ARTICLE XI POWER OF ATTORNEY . . . . . . . . . . . . . . . . . . . . . . 21
11.1 Grant of Power of Attorney . . . . . . . . . . . . . . . . . . 21
ARTICLE XII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 22
12.1 Binding Effect; Amendment . . . . . . . . . . . . . . . . . . 22
12.2 Section Headings . . . . . . . . . . . . . . . . . . . . . . . 22
12.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 23
12.4 Dispute Resolution . . . . . . . . . . . . . . . . . . . . . . 23
12.5 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 23
12.6 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12.7 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . 23
12.8 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 23
12.9 Investment of Partnership Funds . . . . . . . . . . . . . . . 23
12.10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 23
12.11 Liability of Partners . . . . . . . . . . . . . . . . . . . . . 24
12.12 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 25
12.13 No Third-Party Beneficiary . . . . . . . . . . . . . . . . . . 26
12.14 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 26
PURCHASER'S REPRESENTATION LETTER
SCHEDULES
Schedule A - Limited Partners
Schedule B - Capital Commitments
Schedule C - Participation
<PAGE>18
AGREEMENT OF LIMITED PARTNERSHIP
OF
BENSON PARTNERS I, L.P.
Agreement of Limited Partnership of Benson Partners I, L.P., dated December
7, 1993, by and among Benson Services, Inc., as the general partner, and the
limited partners whose names are set forth on Schedule A attached hereto (each
of the foregoing collectively, the "Partners" and individually, a "Partner").
R E C I T A L S:
WHEREAS, the General Partner (as defined below) and the Limited Partners
(as defined below) have determined that it is in their best interests to form
the Partnership (as defined below) in order to pursue an investment, directly or
indirectly, in the securities of such company that is identified in a side
letter agreement dated the date hereof between the General Partner and each of
the Limited Partners (the "Target Company");
NOW, THEREFORE, in consideration of the mutual covenants, representations
and agreements as set forth herein, the Partners hereby agree as follows:
ARTICLE I
DEFINITIONS
"Act" means the Delaware Revised Uniform Limited Partnership Act, as may be
amended from time to time.
"Additional Limited Partners" has the meaning ascribed to it in Section 5.9
of this Agreement.
"Affiliate", as to any Person, means any other Person that directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person.
"Agreement" means this Agreement of Limited Partnership, as originally
executed and as amended, modified, supplemented or restated from time to time.
"Bankruptcy" of a Partner shall occur if a Partner (i) generally fails to
pay or admits in writing his or its inability to pay his or its debts as they
come due, (ii) files any petition or action for relief as to himself or itself
under any bankruptcy, reorganization, insolvency or moratorium law, or any other
similar law or laws for the relief of, or relating to,
<PAGE>19
debtors, (iii) applies for or consents to a receiver, trustee or custodian for
himself or it or a substantial portion of his or its property, or makes a
general assignment for the benefit of creditors, or (iv) has an involuntary
petition or action filed against him or it under any bankruptcy, reorganization
or insolvency law or any similar law or laws, which petition or action remains
undismissed for a period of 60 days.
"Beneficial ownership" has the meaning ascribed to it pursuant to the
provisions of Rule 13d-3 under the Securities Exchange Act of 1934.
"Benson Corp." means Benson Eyecare Corporation, a Delaware corporation.
"Capital Account", as to each Partner, means an account (a) to which is
credited the cash and the agreed value of any property contributed to the
Partnership by such Partner as a Capital Contribution, as the value of such
Capital Contribution is adjusted pursuant to this Agreement, and the profit
allocated to such Partner and (b) to which is charged the loss allocated to such
Partner and the amount of cash and the fair market value (or, in the case of
distributions under Section 5.5, the fair market value as of the date decided on
by the General Partner under that Section) of any property distributed to such
Partner.
"Capital Call" means the aggregate amount of capital to be contributed to
the Partnership from time to time by the Partners pursuant to Article VI.
"Capital Commitment" means the amount of funds set forth opposite such
Partner's name on Schedule B.
"Capital Contribution," as to any Partner, means the aggregate of all
contributions of such Partner pursuant to Article VI.
"Certificate" means the Partnership's Certificate of Limited Partnership as
defined in Section 2.1 of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Entity" means any corporation, association, partnership, joint venture,
trust, estate or other organization.
"General Partner" means Benson Services, Inc. and its successors pursuant
to Section 8.1(e) hereof.
"Indemnitee" has the meaning ascribed to it in Section 12.10 of the
Agreement.
<PAGE>20
"Individual Limited Partners" means the individuals designated on Schedule
A as Individual Limited Partners, as such schedule is amended from time to time.
"Institutional Limited Partners" means the institutions designated on
Schedule A as Institutional Limited Partners, as such schedule is amended from
time to time.
"Limited Partners" means the Individual Limited Partners and the
Institutional Limited Partners designated on Schedule A as such Limited
Partners, as such schedule is amended from time to time by the General Partner;
provided, however, that the General Partner may only amend Schedule A upon the
admission of any Person(s) to the Partnership as Additional Limited Partners
pursuant to this Agreement.
"Participation," as to any Partner, means the number set forth opposite
such Person's name as listed on Schedule C, as such schedule is amended from
time to time by the General Partner pursuant to this Agreement; provided,
however, that the sum total of all Partners' Participations will at all times
equal one; provided, further, that the Participation of each Partner will be
adjusted, and Schedule C thereby will be amended by the General Partner, upon
the admission and initial Capital Contribution of an Additional Limited Partner
so that such Partner's Participation is equal to the ratio of its Capital
Account to the Capital Accounts of all Partners after adjusting the Capital
Accounts of the Partners pursuant to Section 7.1 for the profit or loss through
such date, including the profit or loss deemed realized attributable to the
change in the book values of Partnership property pursuant to Section 5.9(b);
provided, however, for purposes of this computation the Capital Account of the
General Partner shall be first reduced by the excess of allocations to it under
Section 7.1(a)(iii)(y) over the losses allocated to it under Section 7.1(b)(i).
"Partners" means the Persons designated as such in the recitals to this
Agreement, but excluding, from and after the date of such Withdrawal, any Person
who has Withdrawn from the Partnership.
"Partnership" means the limited partnership established pursuant to the
provisions of the Act in accordance with the terms and conditions of this
Agreement, as it may be amended from time to time.
"Person" means any individual, Entity or group (as used in the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder).
<PAGE>21
"Prime Rate" means a fluctuating interest rate per annum as shall be in
effect from time to time which rate per annum shall at all times be equal to the
rate of interest announced publicly by Citibank, N.A. in New York, New York,
from time to time, as Citibank, N.A.'s base rate.
"Redetermination Value" as to a Partner at any date means the balance that
would be in its Capital Account if all the assets of the Partnership had been
sold for their fair market value (which shall be, as to any Securities held by
the Partnership, the closing sales price quoted regular way as of such date
(except that if such Securities are trading "ex-dividend" or "ex-distribution",
on such date, the Redetermination Value shall be adjusted to reflect the portion
of the dividend or distribution to be received with respect to such Securities)
for such Securities on the principal stock exchange or other trading market on
which such Securities are traded less an amount equal to estimated brokerage
commissions that would have been attributable to such a sale) as of such date
and all Partnership liabilities had been paid as of such date.
"Security Proceeds" has the meaning ascribed to it in Section 6.5(c) of
this Agreement.
"Target Company" has the meaning ascribed to it in the recitals.
"Withdrawal" of a Partner means transfer of a Partnership interest in
violation of Section 5.1, withdrawal in violation of Section 5.2, expulsion
pursuant to Section 5.3 or Bankruptcy of a Partner. "Withdraw" and "Withdrawn"
have correlative meanings.
"Withdrawal Date" has the meaning ascribed to it in Section 5.4 of this
Agreement.
"Withdrawal Payment" has the meaning ascribed to it in Section 5.5 of this
Agreement.
ARTICLE II
FORMATION
2.1 Organization. (a) The Partners hereby form the Partnership pursuant
to the provisions of the Act. The rights and liabilities of the Partners shall
be, except as otherwise expressly provided in this Agreement, as provided in the
Act.
(b) The General Partner shall execute a Certificate of Limited Partnership
(the "Certificate") pursuant to the provisions of the Act and cause the
Certificate to be filed and
<PAGE>22
recorded in all offices required by the Act. The General Partner shall also
execute and record all amendments to the Certificate or additional certificates
as may be required by this Agreement or by law.
2.2 Name of Partnership. The name of the Partnership shall be "Benson
Partners I, L.P." or such other name as the General Partner may from time to
time designate.
2.3 Principal Office, Resident Agent, Registered Office. The principal
office of the Partnership shall be Suite B-302, 555 Theodore Fremd Avenue, Rye,
New York 10580 or any other place determined by the General Partner. The name
and address of the registered agent for service of process in the State of
Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington,
Delaware 19801. The address of the registered office of the Partnership in the
State of Delaware is c/o The Corporation Trust Company, 1209 Orange Street,
Wilmington, Delaware 19801.
2.4 Office. The books and records of the Partnership shall be maintained
at the principal place of business of the Partnership or such other place as the
General Partner shall determine and so inform the Limited Partners.
2.5 Duration. The term of the Partnership shall commence on the date the
Certificate is filed and shall continue until December 31, 1994 or the earlier
dissolution and termination of the Partnership pursuant to the provisions of
Article VIII hereof.
ARTICLE III
PURPOSES AND POWERS
3.1 Purposes. The purposes of the Partnership are:
(a) to purchase, acquire, trade and invest in up to 9.9% of the common
voting securities (the "Securities") of the Target Company, either directly or
indirectly, pursuant to open-market or negotiated purchases, a tender offer or
otherwise;
(b) to hold, sell, exchange, transfer, mortgage, pledge or otherwise
dispose of the Securities of the Target Company, either directly or indirectly,
and otherwise exercise all rights, powers, privileges and other incidents of
ownership or possession with respect to the Securities of the Target Company and
other Partnership property;
(c) to borrow or raise moneys, and, from time to time without limitation as
to amount or manner and time of repayment,
<PAGE>23
to issue, accept, endorse and execute promissory notes, drafts, warrants, bonds,
debentures and other negotiable or non-negotiable instruments and evidences of
indebtedness, and to secure the payment of such other obligations of the
Partnership by mortgage upon, or other hypothecation of, all or part of the
property of the Partnership, including the Securities of the Target Company,
whether at the time owned or thereafter acquired all for the purpose of
furthering the affairs of the Partnership; and
(d) to enter into, make and perform all contracts and undertakings, and
engage in all activities and transactions, as the General Partner deems
necessary or advisable, to carry out the foregoing objects and purposes.
3.2 Powers. The Partnership shall have all such powers as are necessary
or appropriate to carry out the purposes of the Partnership, including, without
limitation, the following powers; provided, however, that the Partnership shall
hold no assets other than cash and Securities of the Target Company:
(a) to acquire and hold Securities of the Target Company and to take any
actions incident thereto;
(b) to sell, exchange, transfer or otherwise dispose of any Securities of
the Target Company pursuant to open-market or negotiated sale, a bona fide
tender offer from any Person (including any Affiliate of the General Partner) to
purchase the Securities, or otherwise;
(c) to have and maintain one or more offices within or without the State
of Delaware and in connection therewith to do such acts and things and incur
such expenses as may be necessary or advisable in connection with the
maintenance of such office or offices and the conduct of the business of the
Partnership;
(d) to open, conduct and close accounts with brokers and/or dealers and to
pay the commissions, fees and other charges applicable to transactions in all
such accounts;
(e) to open, maintain and close accounts with one or more banks or other
financial institutions, and to draw checks and other orders for the payment of
money;
(f) to borrow money or guarantee indebtedness of others in furtherance of
the purposes set forth in Section 3.1 and, subject to applicable margin
regulations, to secure the payment of such borrowings, guarantees or other
obligations of the Partnership by the pledge of, or the grant of security
interests in, all or part of the assets of the Partnership; provided, however,
that any
<PAGE>24
such borrowing or guarantee by the Partnership shall be on a basis that is
recourse only to the Partnership if such borrowing or guarantee is unsecured or
the Partnership assets securing such borrowing or guarantee if such borrowing or
guarantee is secured; and
(g) to take such other actions as the General Partner may deem necessary
or advisable in connection with the foregoing, including, without limitation,
the retention of agents, independent contractors, attorneys, accountants and
investment counselors and the preparation and filing of all Partnership tax
returns.
ARTICLE IV
THE GENERAL PARTNER
4.1 Powers of the General Partner. The operations and affairs of the
Partnership shall be administered exclusively by the General Partner, which,
subject to the provisions of this Agreement, shall have all power and authority
specifically conferred upon the Partnership or the General Partner pursuant to
this Agreement and full power and authority to take all action necessary or
appropriate to carry out the purposes of the Partnership as set forth in Article
III. Without limiting the foregoing and subject to the provisions of this
Agreement, the General Partner shall have the sole and exclusive right, power
and authority on behalf of the Partnership (i) to determine the amount, timing
and price of any open market purchases and sales of Securities of the Target
Company, (ii) to decide whether, when, at what price and on what other terms and
conditions to initiate, continue or accept a tender offer for Securities of the
Target Company (including any tender offer initiated by an Affiliate of the
General Partner), (iii) to decide whether to amend, suspend or discontinue any
tender offer for Securities of the Target Company, (iv) generally to purchase,
sell or otherwise acquire or dispose of Securities of the Target Company in its
discretion, (v) to negotiate and execute any and all agreements with the Target
Company and/or its directors, officers or shareholders, (vi) to determine and
enter into any borrowing or other financing arrangements with any third parties,
and (vii) to vote or otherwise act on behalf of the Partnership, by proxy,
consent or otherwise, in respect of any voting of Securities of the Target
Company; provided, however, that nothing contained in this Agreement (or any
fiduciary obligation arising hereunder or under any law) shall preclude the
General Partner and its Affiliates from commencing a tender offer with respect
to the Securities of the Target Company, from acquiring the Securities of the
Target Company or from engaging in any other securities activities. All
determinations and judgments made by the General
<PAGE>25
Partner in good faith and in accordance with the terms of this Agreement shall
be conclusive and binding on all Partners; provided, further, that the foregoing
shall not affect the liability and obligations of the General Partner, the
Partners and the Partnership that are specifically provided in Sections 12.10
and 12.11.
4.2 Actions Requiring Consent. Except as set forth in Sections 4.4 and
5.9, the consent of the General Partner and Limited Partners holding at least
75% of all Participations shall be necessary to amend this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, the prior
written consent of the General Partner shall be necessary to permit the transfer
of a Limited Partner's interest in the Partnership to any Entity.
4.3 Responsibilities of the General Partner; Meeting of Partners. The
General Partner shall devote such time to managing the business of the
Partnership as it reasonably deems necessary to perform its duties as set forth
in this Agreement. The General Partner shall conduct meetings, by telephone or
otherwise, of the Partners once each month, or more frequently as may be
reasonably requested by any of the Partners, to inform the Limited Partners with
respect to the Partnership's business and affairs. The General Partner will
make the books and records of the Partnership available for inspection by any of
the Limited Partners.
4.4 Partnership Expenses. The Partnership will be responsible and will
pay, or reimburse the General Partner, for its organizational and operating
expenses (not to exceed $75,000 in the aggregate, subject to increase with the
consent of Limited Partners holding at least 50% of all Participations),
including all legal, auditing, accounting, brokerage, finder, placement,
investment banking, interest, filing and other fees or expenses incurred by the
Partnership or by the General Partner in connection with the business and
activities of the Partnership, including, without limitation, expenses so
incurred by the General Partner prior to the formation of the Partnership.
Except as expressly provided above, no Partner other than the General Partner
shall incur any costs or expenses on behalf of the Partnership without the prior
consent of the General Partner.
4.5 Tax Filings. The General Partner, at the expense of the Partnership,
shall prepare and file, or cause to be prepared and filed, a federal income tax
information return in compliance with the applicable provisions of the Code, and
any required state and local tax and information returns, for each tax year of
the Partnership, which year shall end on December 31 unless otherwise required
by law. The General Partner shall make such
<PAGE>26
tax elections as it deems necessary or appropriate, including the making or
revocation of an election under Section 754 of the Code. The Partners designate
the General Partner as the tax matters partner of the Partnership pursuant to
Section 6231(a)(7) of the Code and authorize the General Partner to take any and
all action necessary to confirm such designation.
4.6 Limitations on Power of the General Partner. The General Partner,
without the prior written consent of, or ratification by, all of the Partners,
shall have no authority to:
(a) do any act in contravention of the Certificate, as such Certificate
may be amended from time to time;
(b) do any act which would make it impossible to carry out the purposes of
the Partnership; and
(c) possess Partnership property, or assign its General Partner's rights
in specific Partnership property, for other than a Partnership purpose.
ARTICLE V
TRANSFER OF INTERESTS; PLEDGES; WITHDRAWALS;
ADDITIONAL LIMITED PARTNERS; LIMITED PARTNERS' POWERS
5.1 Transfer of Interests. (a) No Limited Partner may assign, transfer,
pledge or otherwise encumber, in whole or in part, its interest in the
Partnership or in any Securities contributed to the Partnership, without (i) the
prior written consent of the General Partner, which consent may be withheld for
any reason and (ii) the receipt by the General Partner not less than ten
business days prior to the date of any proposed transfer of a written opinion of
counsel satisfactory to the General Partner as to such matters as the General
Partner may reasonably request including, without limitation, that such transfer
would not result in: (i) a violation of the United States Securities Act of
1933, as amended, or any "Blue Sky" laws or other securities laws of any state
of the United States applicable to the Partnership or the Partnership interest
to be transferred; (ii) the Partnership being required to register, or seek an
exemption from registration, as an investment company under the Investment
Company Act of 1940, as amended; or (iii) the Partnership being treated as an
association taxable as a corporation for Federal income tax purposes. The
transferring Limited Partner agrees that it will pay all expenses, including
reasonable attorneys' fees, incurred by the Partnership in connection with such
transfer.
<PAGE>27
(b) The General Partner may not assign, transfer, pledge or otherwise
encumber, in whole or in part, its interest as general partner in the
Partnership without the prior written consent of all Partners.
5.2 Withdrawal. No Partner shall Withdraw from the Partnership without
the prior written consent of the General Partner.
5.3 Expulsion. A Partner may be expelled from the Partnership by the
General Partner at any time in its sole discretion, including, but not limited
to, (a) breach of this Agreement in any material respect or in conduct that
materially and prejudicially affects the carrying on of Partnership affairs, (b)
failure to make any contribution of capital in accordance with Article VI of
this Agreement when requested by the General Partner to do so, or (c) Bankruptcy
of such Partner.
5.4 Consequences of Withdrawal or Expulsion. If a Partner Withdraws from
the Partnership, then, effective as of the date on which such Partner gives
notice in writing to the Partnership or the date on which the Partnership gives
notice in writing to the Partner, as the case may be (the "Withdrawal Date"),
such Withdrawn Partner shall cease to share in the profit or loss of the
Partnership, and shall cease to be responsible for liabilities incurred
subsequent to such date. Such Withdrawn Partner shall be responsible for any
damages to the Partnership or to the other Partners caused by such Withdrawal,
including, without limitation, lost profits and consequential damages. The
remaining Partners shall be entitled to continue the business of the Partnership
and shall be entitled to possess all Partnership property. A Partner who
Withdraws from the Partnership shall thereupon cease to be a Partner and shall
no longer have any right to vote or to consent to any action taken or proposed
to be taken pursuant to this Agreement, including, without limitation, any
action provided in Section 4.2.
5.5 Amount Payable to Withdrawn Partner. The Withdrawn Partner shall be
entitled to receive from the Partnership an amount equal to the excess, if any,
of (a) the Redetermination Value of the Withdrawn Partner's interest in the
Partnership at the Withdrawal Date over (b) the amount of damages, if any, owed
by such Partner pursuant to Section 6.3 plus, without duplication, the amount of
damages to the remaining Partners caused by such Withdrawal including, without
limitation, lost profits and consequential damages (such excess, if any, being
called the "Withdrawal Payment"). Such Withdrawal Payment shall not accrue
interest from the date of Withdrawal to the date of payment. The amount of the
Withdrawal Payment shall be determined by the holders of a majority of the
Participations of
<PAGE>28
the remaining Partners, whose determination, absent manifest error, shall be
final and binding on the Withdrawn Partner and the Partnership.
For purposes of the foregoing, a decline in the value of Securities of the
Target Company shall be presumed, absent compelling evidence to the contrary, to
have been caused by such Withdrawal for a period of three months following the
earlier of such Withdrawal or the public announcement of a Partner's intent to
Withdraw. The Withdrawn Partner shall not have any right to receive any profits
attributable to the use of its rights in Partnership property after the
Withdrawal Date. The Withdrawal Payment shall be payable in cash or in kind or
in a combination thereof, at the option of the General Partner at the time of
payment, and to the extent paid in kind, the assets so used shall be valued at
their fair market value as of the date of payment or the Withdrawal Date, which
date shall be decided upon by the General Partner. The fair market value of any
publicly-traded Securities held by the Partnership shall be the closing sales
price quoted regular way as of such date (except that if such Securities are
trading "ex-dividend" or "ex-distribution", on such date, the fair market value
shall be adjusted to reflect the portion of the dividend or distribution to be
received with respect to such securities) for such Securities on the principal
stock exchange or other trading market on which such Securities are traded.
5.6 Timing of Withdrawal Payment. The Withdrawal Payment shall be paid
not later than the date of dissolution and liquidation of the Partnership.
5.7 Retention of Rights. The rights provided for in this Article V shall
be in addition to any other rights and remedies of the Partnership and the
remaining Partners which arise at law or in equity by virtue of a Withdrawal by
a Partner from the Partnership in contravention hereof.
5.8 Effect of Withdrawal as to Other Partners. If a Partner Withdraws,
the other Partners shall share in the profits, losses and distributions (other
than the Withdrawal Payment) otherwise allocable to such Withdrawn Partner in
the ratio of their respective Participations.
5.9 Additional Limited Partners. (a) The General Partner may from time to
time admit additional Limited Partners ("Additional Limited Partners") to the
Partnership and may amend this Agreement acting alone to reflect such admission
without the consent of all Partners. The General Partner shall have the
authority to discuss the terms of admission, amount of Participation and Capital
Commitment with any prospective
<PAGE>29
Additional Limited Partner, and, establish the terms of admission, amount of
Participation and Capital Commitment with such Additional Limited Partner.
(b) Upon the admission and initial Capital Contribution of an Additional
Limited Partner, the carrying values of the Partnership's assets will be
adjusted to equal their respective fair market values as determined under the
principles of Section 5.5 and in a manner consistent with the Additional Limited
Partner's Participation and Capital Commitment.
5.10 Limitations on Powers of the Limited Partners. The Limited Partners
shall not participate in the management or control of the Partnership's
business, transact any business in the Partnership's name or have the power to
sign documents for the Partnership or to bind the Partnership in any other way.
The Limited Partners shall have no right or authority to be consulted with
respect to any affairs of the Partnership or to vote on matters other than the
matters on which the Limited Partners may vote, or as to which the consent of
the Partners is required, as set forth in this Agreement. Notwithstanding the
foregoing, the General Partner may also be a Limited Partner.
ARTICLE VI
CAPITAL CONTRIBUTIONS
6.1 Initial Capital Contributions. Each Limited Partner shall, on the
date hereof, make an initial capital contribution to the Partnership in an
amount equal to 10% of such Partner's Capital Commitment.
6.2 Additional Capital Contributions. Each Partner shall, upon the terms
and conditions specified below, make additional capital contributions to the
Partnership from time to time when notified of Capital Calls by the General
Partner; provided, however, that (i) the General Partner shall make Capital
Calls only when and to the extent that it reasonably considers necessary to fund
purchases of Securities of the Target Company through the Partnership or to pay
Partnership expenses, and (ii) the aggregate amount of all Capital Calls of any
Partner may not exceed such Partner's Capital Commitment. Within three business
days of receiving notice of an Capital Call from the General Partner, each of
the Partners (including the General Partner) shall make a capital contribution
to the Partnership in an amount equal to the product of such Capital Call and
the ratio of its Participation to the Participations of all Partners who have
not Withdrawn. Except as provided in Section 6.5, all capital contributions
made pursuant to this Article VI shall be in cash.
<PAGE>30
6.3 Failure to Contribute. If a Partner fails to contribute any amount
required under Section 6.1 or 6.2, such Partner shall be responsible, in the
sole discretion of the General Partner, for any damages to the Partnership
caused by such failure, as well as for the amount required to be contributed
plus interest thereon at the Prime Rate plus 5% from the date that such
contribution is due until the date such contribution is made.
6.4 General Partner's Capital Contribution. The General Partner shall
make an aggregate capital contribution to the Partnership in an amount equal to
at least one percent of the aggregate Capital Contributions of the Partners.
The General Partner's Capital Contribution shall be paid to the Partnership at
such time as the General Partner, in its discretion, shall determine.
6.5 Capital Contributions by Institutional Limited Partners. For purposes
of Sections 6.1 and 6.2, the Institutional Limited Partners may, with the
consent of the General Partner, satisfy their Capital Contributions in the
following manner:
(a) Following notification of a Capital Call by the General Partner, the
Partnership shall purchase Securities on behalf of such Institutional Limited
Partner with a market value equal to the product of such Capital Call and the
ratio of such Institutional Limited Partner's Participation to the
Participations of all Partners who have not Withdrawn. Such Securities shall be
registered in the name of such Institutional Limited Partner and shall be
delivered to such Institutional Limited Partner to hold on behalf of the
Partnership. Upon delivery of such Securities, such Institutional Limited
Partner shall pay the Partnership's designated broker the purchase price
(including commissions) of such Securities.
(b) Each Institutional Limited Partner agrees (i) to deliver to the
Partnership a proxy which authorizes the General Partner to exercise all voting
rights with respect to such Securities, (ii) to deliver promptly to the
Partnership all notices, reports and documents received with respect to such
Securities, (iii) not to sell, assign, pledge, transfer or otherwise encumber
such Securities and (iv) to take only such actions with respect to such
Securities as are directed by the General Partner. Each Institutional Partner
hereby grants to the Partnership a first-priority security interest in such
Securities and all proceeds relating thereto to the extent of the balance of
such Partner's Capital Account. An Institutional Partner's Capital Account will
be reduced to the extent of any Security
<PAGE>31
Proceeds such Institutional Partner fails to remit to the Partnership upon the
request of the General Partner.
(c) All Securities held by an Institutional Limited Partner pursuant to
this Section 6.5 shall be treated as Partnership property for all purposes under
this Agreement, including any cash, Securities or other property, including any
rights to subscribe for additional Securities, which such Institutional Partner
may thereafter receive upon or in respect of such Securities, whether by
dividend, liquidation or other distribution (collectively "Security Proceeds").
(d) Each Institutional Limited Partner agrees to provide the General
Partner immediately upon request with evidence that such Institutional Limited
Partner continues to hold such Securities as the General Partner may request.
ARTICLE VII
ALLOCATIONS AND INTERIM DISTRIBUTIONS
7.1 Allocation. (a) Profit of the Partnership for any period shall be
allocated to the Partners' Capital Accounts in the following manner:
(i) first, to the General Partner to the extent that the aggregate loss
previously allocated to it under Section 7.1(b)(iii) exceeds the profit
previously allocated to it under this Section 7.1(a)(i);
(ii) second, among the Partners in proportion to, and to the extent of,
the amount by which the aggregate loss previously allocated to each such Partner
under Section 7.1(b)(ii) exceeds the profit previously allocated to such Partner
pursuant to this Section 7.1(a)(ii); and
(iii) third, (x) 80% to the Partners in proportion to their relative
Participations and (y) 20% to the General Partner.
(b) Loss of the Partnership for any period shall be allocated to the
Partners' Capital Accounts in the following manner:
(i) first, (x) 80% to the Partners in proportion to their relative
Participations and (y) 20% to the General Partner until the cumulative losses
allocated to the General Partner under this Section 7.1(b)(i)(y) equal the
cumulative profit previously allocated to it under Section 7.1(a)(iii)(y);
<PAGE>32
(ii) second, among the Partners in proportion to, and to the extent of,
their positive Capital Account balances; and
(iii) third, to the General Partner.
(c) The net profit or loss of the Partnership shall be determined in
accordance with generally accepted accounting principles, with marketable
securities shall be carried at cost and profit or loss recorded when realized
except as otherwise expressly provided herein. Partnership profit (and loss)
shall include any increase (decrease) in the carrying value of Partnership
assets under Section 5.9(b) and the excess (deficit) of the value of distributed
property charged to the Capital Account of the distributee Partner over (under)
the Partnership's carrying value for the distributed property.
(d) Except as otherwise provided herein, allocations and computations
pursuant to this Section 7.1 shall be made as of the close of the last day of
the Partnership's fiscal year.
7.2 Proration of Income and Deductions. Solely for U.S. federal, state
and local income tax purposes, and not for purposes of computing Capital Account
balances, taxable income, gain, loss, deductions and credits shall be allocated
by the General Partner among the Partners to take into account, as nearly as
practicable, the extent to which changes in the value of the Partnership's
assets have resulted in credits and debits to the Capital Accounts of such
Partners.
7.3 Contributed Property. Profit or loss with respect to property
contributed to the Partnership shall be computed based on the agreed value of
such property at the time of the contribution. For U.S. federal and state
income tax purposes, allocations of profit or loss will be made under section
704(c) of the Code to take account of the difference between the basis of such
property to the Partnership and its agreed market value at the time of the
contribution, but such allocations pursuant to section 704(c) of the Code shall
not affect the computation or allocation of profit or loss for purposes of
Section 7.1.
7.4 Interim Distributions. The General Partner may distribute securities
or other property constituting all or any portion of the Partnership assets in
cash or in kind in such amounts as the General Partner shall determine in its
sole discretion, and any such distribution shall be made to the Partners in
accordance with the positive balances in such Partners' Capital Accounts;
provided, however, that in the case of securities, no such distributions shall
be made unless such securities are freely tradeable in the public securities
market of the United States without registration under the Securities
<PAGE>33
Act of 1933; and further provided, however, that on a sale of Securities to the
General Partner or its Affiliate, the General Partner's pro rata interest in the
Securities to be disposed of may be distributed to the General Partner rather
than being sold by the Partnership and the proceeds being distributed to the
General Partner. For purposes of determining the value of the assets of the
Partnership at any time distributed in kind pursuant to this Section 7.4, the
assets of the Partnership shall be valued in the manner provided for in Section
5.5 or, if necessary, in the manner reasonably determined by the General
Partner.
7.5 Assignor-Assignee Allocations. The Partnership shall allocate taxable
items attributable to a Partner's interest that is assigned between the assignor
and assignee based on an interim closing of the books of the Partnership.
ARTICLE VIII
DISSOLUTION OF THE PARTNERSHIP;
WINDING UP AND LIQUIDATION
8.1 Dissolution. The earlier to occur of any of the following events
shall work an immediate dissolution of the Partnership:
(a) the acquisition by Benson Corp. of greater than 50% of the Securities
of the Target Company;
(b) the disposition by the Partnership of all Securities of the Target
Company held, directly or indirectly, by them;
(c) the expiration of the term of the Partnership pursuant to Section 2.5
of this Agreement;
(d) the consent to dissolution of the Partners holding at least 75% of the
Participations;
(e) the resignation, dissolution, insolvency or Bankruptcy of the General
Partner, provided, that the Partnership shall not be dissolved if, within 90
days after such withdrawal, all Partners agree in writing to continue the
business of the Partnership and to the appointment, effective as of the date of
such withdrawal, of one or more additional General Partners; or
(f) the occurrence of any other event that would cause a dissolution of the
Partnership by operation of law.
Any dissolution of the Partnership shall be effective on the date the event
occurs giving rise to the dissolution, but the
<PAGE>34
Partnership shall not terminate until all its affairs have been wound up and its
assets distributed as provided in this Article VIII.
8.2 Winding Up and Liquidation. Subject to the provisions of Sections
5.4, in the event of the dissolution of the Partnership for any reason, the
General Partner shall commence to wind up the affairs of the Partnership and to
distribute all of its assets. In winding up the affairs of the Partnership, the
General Partner may take any and all action as it may determine to be in the
best interest of the Partners (including, without limitation, any arrangements
to be made with creditors, whether and to what extent and under what terms the
assets of the Partnership, including the Securities of the Target Company, are
to be sold or distributed in kind to the Partners, and the amount or necessity
of establishing cash or other reserves to cover contingent and/or other
liabilities of the Partnership). Unless otherwise agreed by all the Partners,
no distribution of Securities shall be made unless such Securities are freely
tradeable in the public securities market of the United States without
registration under the Securities Act of 1933.
8.3 Accounting on Dissolution. Subject to the provisions of Section 5.4,
upon dissolution of the Partnership an accounting shall be made of the
Partnership's assets, liabilities and operations from the date of the last
previous accounting to the date of dissolution. Profit or loss realized
subsequent to the date of dissolution shall be allocated in accordance with
Article VII. As to each asset other than cash, gain or loss shall be allocated
and proper adjustments made to the Capital Accounts of the Partners as if such
asset had been sold for its then fair market value, as determined pursuant to
Section 8.6.
8.4 Application of Partnership Properties. In winding up the affairs of
the Partnership, the assets of the Partnership, in cash or in kind, shall be
applied in the following order of priority:
(a) In payment of all liabilities of the Partnership to creditors. If any
liability is contingent or uncertain in amount, a reserve will be established in
such amount as the General Partner deems reasonably necessary. Upon the
satisfaction or other discharge of such contingency, the amount of the reserve
not required, if any, will be distributed in accordance with the remainder of
this Section 8.4; and
(b) In payment of any remaining assets to the Partners in proportion to
each Partner's Capital Account.
<PAGE>35
(c) In the event that, at the time of dissolution of the Partnership,
there is a negative balance in the Capital Account of any Partner, such Partner
shall, prior to any distribution in accordance with this Section, make
contributions in cash to the Partnership sufficient to eliminate such negative
balance, and all other Partners may, at their option, take such action as such
Partners deem appropriate to obtain payment by such Partner of such amount,
together with interest thereon at the Prime Rate plus 5%, from the date that
such contribution is due, at the cost and expense of the Partner owing such
additional contribution.
8.5 Option to Purchase Benson Corp. Stock Upon Certain Dissolution Event.
In the event of a dissolution of the Partnership pursuant to Section 8.1(a) of
this Agreement, each Limited Partner may elect to receive, in whole or in part,
in lieu of any distribution in cash or in kind of the assets of the Partnership
pursuant to Section 8.4 of this Agreement, that number of registered shares of
common stock, par value $0.01 per share, of Benson Corp. equal to the positive
balance of such Partner's Capital Account divided by $8. Benson Corp. agrees to
contribute such stock to the Partnership upon the request of the General Partner
in fulfillment of the Partnership's obligations pursuant to this Section 8.5.
8.6 Valuation of Assets and Related Matters. Any non-cash assets of the
Partnership shall be valued for purposes of accounting upon dissolution pursuant
to Section 8.3 at their fair market value as determined by the General Partner,
it being understood that, if possible, Securities shall be valued in the manner
provided for in Section 5.5.
ARTICLE IX
NOTICES AND PAYMENTS
9.1 Notices. All notices and demands required or permitted under this
Agreement shall be in writing, and may be delivered personally or sent by
facsimile transmission, telex or certified or registered mail, postage prepaid,
to the Partners at their respective addresses as shown from time to time on the
records of the Partnership. Any Partner may specify a different address by
notifying the other Partners in writing of such different address. Any such
notice or demand shall be deemed given or made when received.
9.2 Payments. All payments hereunder shall be made in U.S. dollars by
certified or official bank check drawn against (or, if requested by the party to
receive a payment, by wire transfer of) next day funds.
<PAGE>36
ARTICLE X
CERTAIN REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
Each of the Partners represents and warrants to, and agrees with, the other
Partners as follows:
10.1 Status. If applicable, such Partner is duly incorporated or duly
organized, as the case may be, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization, as the case may be.
Such Partner has full power and authority to own its property and to carry on
its business as now conducted. Such Partner is (i) an individual who is a
citizen of the United States or (ii) a corporation or partnership created or
organized under the laws of the United States or any political subdivision
thereof.
10.2 Authority. Such Partner has full power and authority to execute and
deliver this Agreement and to carry out his or its obligations hereunder in
accordance with the terms and provisions hereof. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all requisite corporate or
partnership action on the part of such Partner. This Agreement constitutes the
valid and legally binding obligation of such Partner, enforceable against him or
it in accordance with its terms, except as enforceability may be limited by
equitable principles regardless of whether considered at law or in equity, or by
bankruptcy, insolvency, reorganization and other similar laws now or hereafter
in effect relating to creditors' rights generally.
10.3 No Breach or Default. The execution, delivery and performance by such
Partner of this Agreement and the transactions contemplated hereby will not
constitute a breach of any term or provision of, or a default under, (a) any
outstanding indenture, mortgage, loan or agreement or other similar contract or
agreement to which such Partner or any of its Affiliates is a party or by which
it or any of its Affiliates or its or their property is bound, (b) its
certificate or articles of incorporation or by-laws or other constituent
documents, (c) any law, rule or regulation, or (d) any order, writ, judgment or
decree having applicability to it.
10.4 No Governmental Consents. No consent, license, approval or
authorization of any governmental body, authority, bureau or agency is required
on the part of such Partner or any of its Affiliates in connection with the
execution, delivery and
<PAGE>37
performance of this Agreement or the consummation of the transactions
contemplated herein.
10.5 Investment Representation. (a) Each Limited Partner is acquiring his
or its interest in the Partnership for his or its own account, for investment
and not with a view to the distribution of the interest, is fully able to bear
the economic risks of becoming a Limited Partner and has such knowledge and
experience in financial and business matters that he or it is capable of
evaluating the merits and risks inherent in becoming a Limited Partner.
(b) Each of the Partners represents and warrants to the other Partners
that, except as heretofore disclosed in writing to the other Partners or as
acquired by or on behalf of the Partnership pursuant to this Agreement, neither
it nor any of its Affiliates beneficially owns any Securities of the Target
Company or the right to acquire any such Securities.
10.6 Purchase of Securities of Target Company. Each Partner agrees that
except as provided herein or with the consent of all the Partners, neither it
nor any of its Affiliates will, directly or indirectly, from and after the date
hereof and until the dissolution and termination of the Partnership, (x)
acquire, for its own account or for the account of any Person for which it
exercises investment discretion, record or beneficial ownership, or dispose, of
Securities of the Target Company (or the right to acquire Securities of the
Target Company), or (y) act or agree to act together or in concert with any
other Person for the purpose of acquiring, holding, voting or disposing of any
Securities of the Target Company. The agreement contained in this Section 10.6
shall survive the Withdrawal of any Partner from the Partnership and shall
terminate upon the conclusion of the term of the Partnership.
10.7 Accuracy of Information. Each Partner shall furnish to the General
Partner all information regarding such Partner or its Affiliates required for
inclusion in any documents to be prepared or filed in connection with the
business of the Partnership, including, without limitation, all information
required to be disclosed pursuant to Rule 13d of the Securities Exchange Act of
1934 and any other federal and state securities laws, and all such information
will be true and correct in all material respects and will not omit to state any
material fact necessary to be stated therein in order that such information not
be misleading.
10.8 Compliance with Applicable Laws. Such Partner is and will remain in
compliance with all laws and regulations applicable to the subject matter of
this Agreement.
<PAGE>38
ARTICLE XI
POWER OF ATTORNEY
11.1 Grant of Power of Attorney. Each Limited Partner, by the execution of
this Agreement, or by authorizing such execution on his behalf, does irrevocably
make, constitute and appoint the General Partner, with full power of
substitution and resubstitution, as its true and lawful attorney and agent, with
full power and authority in his name, place and stead to execute, swear to,
acknowledge, deliver, file and record in the appropriate public offices:
(a) the Certificate, fictitious or assumed name certificates and other
certificates and instruments (including counterparts of this Agreement) which
the General Partner deems necessary or desirable to qualify or continue the
Partnership as a limited partnership or to conduct the business of the
Partnership in the jurisdictions in which the Partnership may conduct business
or own or lease property;
(b) all certificates of dissolution, conveyances and other instruments
which the General Partner deems necessary or desirable to effect the dissolution
and termination of the Partnership;
(c) all instruments, reports or filings required to be filed by the
Partnership or any Partners in connection with the business or dealings of the
Partnership pursuant to federal or state securities laws, rules or regulations;
and
(d) any other instrument which is now or may hereafter be required by law
to be filed on behalf of the Partnership or which is required to reflect the
exercise by the General Partner of any power granted to it under this Agreement
in connection with the conduct of the Partnership's business.
ARTICLE XII
MISCELLANEOUS
12.1 Binding Effect; Amendment. This Agreement constitutes the entire
agreement among the parties relating to the subject matter hereof and
supersedes any prior agreement or understanding among them relating to such
subject matter. Except as herein otherwise specifically provided, this Agree-
ment shall be binding upon and inure to the benefit of the parties and their
legal representatives, heirs, administrators, executors, successors and assigns.
This Agreement may not be amended or modified without the prior written consent
of all the Partners.
<PAGE>39
12.2 Section Headings. Headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Agreement or any provisions hereof.
12.3 Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware, without giving effect to the principles of conflicts of law thereof.
12.4 Dispute Resolution. The parties hereto covenant and agree that in the
event of any dispute arising out of the terms and conditions of this Agreement
that they consent and submit to the jurisdiction of the federal or state courts
located in the State of New York, City of New York, Borough of Manhattan and of
the federal or state courts located in the State of Delaware, City of
Wilmington.
12.5 Severability. Each provision of this Agreement is intended to be
severable. If any term or provision of this Agreement or the application of any
such term or provision to any Person or circumstance shall be held illegal or
invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity of the remainder of this Agreement or the application of the
remainder of the Agreement to all Persons or circumstances other than those to
which it is held invalid or illegal.
12.6 Waiver. No waiver of any provision hereof shall be effective unless
in writing, and no such waiver shall be deemed a waiver of such provision in the
future or a waiver of any other provision.
12.7 Cooperation. The parties hereto covenant and agree that they will
execute such other and further instruments and documents as in the opinion of
the General Partner are or may be necessary or convenient to effectuate and
carry out the Partnership created by this Agreement and its business.
12.8 Fiscal Year. The fiscal year of the Partnership is the calendar year.
12.9 Investment of Partnership Funds. All funds of the Partnership which
are not otherwise employed in the Partnership's business shall be kept in
interest-bearing accounts or instruments as shall be designated by the General
Partner.
12.10 Indemnification. (a) To the fullest extent permitted by law, the
Partnership will indemnify and hold harmless the General Partner and each
stockholder, director, officer, partner, controlling person, employee,
representative or agent thereof (each, an "Indemnitee") from and against any and
all losses, claims, expenses, damages or liabilities to which an Indemnitee
<PAGE>40
may become subject in connection with any matter arising out of or in connection
with the Partnership's business or affairs, except to the extent that any such
loss, claim expense, damage or liability results solely from the willful
misfeasance or bad faith of the Indemnitee. If for any reason (other than the
willful misfeasance or bad faith of the Indemnitee) the foregoing
indemnification is unavailable or insufficient to hold the Indemnitee harmless,
then the Partnership shall contribute to the amount paid or payable by the
Indemnitee as a result of such loss, claim, damage, expense or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the Partnership on the one hand and the Indemnitee on the other hand but also
the relative fault of the Partnership and the Indemnitee, as well as any
relevant equitable considerations.
(b) In the event that an Indemnitee becomes involved in any capacity in
any action, proceeding or investigation brought by or against any person
(including any Limited Partner) in connection with any matter arising out of or
in connection with the Partnership's business or affairs (including a breach of
this Agreement by the Limited Partner), the Partnership will periodically
reimburse the Indemnitee for its legal and other expenses (including the cost of
any investigation and preparation) incurred in connection therewith, provided
that the Indemnitee shall promptly repay to the Partnership the amount of any
such reimbursed expenses paid to it if it shall ultimately be determined by a
final non-appealable judgment of a court of competent jurisdiction that such
Indemnitee is not entitled to be so indemnified by the Partnership in connection
with such action, proceeding or investigation.
(c) The rights to indemnification and reimbursement provided for in this
Section 12.10 may be satisfied only out of the assets of the Partnership. None
of the Partners shall be personally liable for any claim for indemnification or
reimbursement under this Section 12.10.
12.11 Liability of Partners. (a) Neither the General Partner, nor any of
its Affiliates nor any stockholder, director, officer, partner, controlling
person, employee, representative or agent thereof shall be liable, responsible
or accountable in damages or otherwise to the Partnership or to any Partner or
to any successor, assignee or transferee of the Partnership or of any Partner
for (i) any act or omission performed or omitted by it, or for any costs,
damages or liabilities arising therefrom, in the absence of willful misfeasance
or bad faith by the General Partner, (ii) any tax liability imposed on the
Partnership or any Limited Partner or (iii) any losses due to the negligence of
any employees, brokers or other agents of the Partnership (whether or not such
persons are directly employed by the General Partner).
<PAGE>41
(b) Except as otherwise provided by state law, a Limited Partner shall not
be liable for any debts or bound by any obligations of the Partnership, except
each Limited Partner shall be obligated to make its full Capital Contribution
upon the terms specified in this Agreement. None of the Limited Partners shall
be liable for the debts or liabilities of any other Partner. Each Limited
Partner by execution of this Agreement represents and warrants to every other
Partner and to the Partnership that such Limited Partner will not take any
action which would cause such Limited Partner to become liable for the
obligations of the Partnership or otherwise engage in conduct which would cause
any other person reasonably to believe that such Limited Partner is a general
partner of the Partnership.
12.12 Confidentiality. Each Partner represents and warrants that it has
not and agrees that it will not, and will direct such of its directors,
partners, officers, employees, attorneys, representatives, advisors and
Affiliates controlled by it as are privy to such knowledge not to, until such
time as the General Partner on behalf of the Partnership has publicly disclosed
the same and notified each such Partner that it has done so, disclose to any
Person either the existence or terms of this Agreement or its subject matter or
the identity of the Partners; provided, however, that the General Partner will
not disclose such information without the prior written consent of all Partners
or the written opinion of counsel that such disclosure is necessary. Without
limiting the generality of the foregoing, no Partner shall confirm any statement
made by third parties regarding this Agreement or such discussions or
information. In the event that a Partner receives either a request to disclose
all or any part of the foregoing under the terms of a valid and effective
subpoena or order issued by a court or government agency of competent
jurisdiction or advice of legal counsel that disclosure is otherwise legally
required under applicable law, such Partner agrees, prior to making such
disclosure: (i) immediately to notify all other Partners of the existence and
terms of, and the circumstances surrounding, such request or advice, (ii) to
consult with the other Partners on the advisability of taking legally available
steps to resist or narrow any such request or otherwise to obviate the need for
such disclosure and (iii) if disclosure of such information is required, to
exercise its best efforts to obtain an order or other reliable assurance that
confidential treatment will be accorded to such portion of the disclosed
information as the General Partner so designates. The agreement contained in
this Section 12.12 shall survive the Withdrawal of any Partner or any
termination or dissolution of the Partnership.
12.13 No Third-Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of the
<PAGE>42
Partners (and those persons specifically entitled to indemnification under this
Article XII), and, except as aforesaid, it is not the intention of the parties
to confer third-party beneficiary rights upon any other Person.
12.14 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument, and it shall not be necessary that each
counterpart be signed by all the Partners so long as each Partner shall have
executed a counterpart which has been delivered to the other Partners.
