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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Alexion Pharmaceuticals, Inc.
-------------------------------
(Name of Issuer)
Common Stock
-------------------------------
(Title of Class of Securities)
015351-10-9
-----------------------
(CUSIP Number)
Samuel D. Isaly
Viren Mehta
PHARMA/wHEALTH
M and I Investors, Inc.
Caduceus Capital, L.P.
Caduceus Capital Management, Inc.
Worldwide Health Sciences Portfolio
Mehta and Isaly Asset Management, Inc.
41 Madison Avenue, 40th Floor
New York, NY 10010
Telephone: (212) 685-0800
----------------------------------------
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and
Communications)
Copy to:
Paul S. Schreiber, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telephone: (212) 848-4000
January 6, 1997
---------------------
(Date of Event which Requires Filing of this Statement)
...............................................................................
Page 1 of 128 Pages
Exhibit Index is at Page 41
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 box |_|.
Check the following box if a fee is being paid with this Statement |_|.
Page 2 of 128 Pages
Exhibit Index is at Page 41
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Samuel D. Isaly
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----------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
-----------------------------------------------------------------
|_| (b)
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(3) SEC Use Only
----------------------------------------------------------
(4) Source of Funds (See Instructions) AF
------------------------------------
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
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(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 3 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
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(14) Type of Reporting Person (See Instructions) IN
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Page 4 of 128 Pages
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Viren Mehta
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
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|_| (b)
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(3) SEC Use Only
----------------------------------------------------------
(4) Source of Funds (See Instructions) AF
------------------------------------
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization United States
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
----------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 5 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
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(14) Type of Reporting Person (See Instructions) IN
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Page 6 of 128 Pages
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
PHARMA/wHEALTH
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
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|_| (b)
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(3) SEC Use Only
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(4) Source of Funds (See Instructions) WC
------------------------------------
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization Luxembourg
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
----------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 7 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
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(14) Type of Reporting Person (See Instructions) OO
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Page 8 of 128 Pages
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
M and I Investors, Inc.
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
-----------------------------------------------------------------
|_| (b)
-----------------------------------------------------------------
(3) SEC Use Only
----------------------------------------------------------
(4) Source of Funds (See Instructions) AF
------------------------------------
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization Delaware
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
----------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 9 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
----------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) CO
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Page 10 of 128 Pages
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Caduceus Capital, L.P.
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
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|_| (b)
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(3) SEC Use Only
----------------------------------------------------------
(4) Source of Funds (See Instructions) AF
------------------------------------
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization Delaware
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
----------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 11 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
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(14) Type of Reporting Person (See Instructions) PN
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Page 12 of 128 Pages
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Caduceus Capital Management, Inc.
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
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|_| (b)
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(3) SEC Use Only
----------------------------------------------------------
(4) Source of Funds (See Instructions) AF
------------------------------------
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization Delaware
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
----------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 13 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
----------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) CO
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Page 14 of 128 Pages
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Worldwide Health Sciences Portfolio
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(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
-----------------------------------------------------------------
|_| (b)
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(3) SEC Use Only
----------------------------------------------------------
(4) Source of Funds (See Instructions) WC
------------------------------------
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(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization New York
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
----------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 15 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
----------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IV
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Page 16 of 128 Pages
CUSIP No. 015351-10-9
(1) Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Mehta and Isaly Asset Management, Inc.
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----------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group (See Instructions)
|_| (a)
-----------------------------------------------------------------
|_| (b)
-----------------------------------------------------------------
(3) SEC Use Only
----------------------------------------------------------
(4) Source of Funds (See Instructions) AF
------------------------------------
----------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Item 2(d) or 2(e).
|-| ----------------------------------------------------------------------
(6) Citizenship or Place of Organization Delaware
---------------------------------
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- --------------------
Number of (7) Sole Voting Power
Shares ----------------------------------------
Beneficially (8) Shared Voting Power 450,500
Owned by ----------------------------------------
Each (9) Sole Dispositive Power
Reporting ----------------------------------------
Person (10) Shared Dispositive Power 450,500
With ----------------------------------------
- --------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person 450,500
----------
----------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
|-| ----------------------------------------------------------------------
Page 17 of 128 Pages
CUSIP No. 015351-10-9
(13) Percent of Class Represented by Amount in Row (11) 6.1%
--------------------
----------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) IA
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Page 18 of 128 Pages
Item 1. Security and Issuer.
The class of equity securities to which this Statement on Schedule 13D
relates is the Common Stock, par value $0.0001 per share (the "Securities"), of
Alexion Pharmaceuticals, Inc. (the "Issuer"), a Delaware corporation, with its
principal executive offices located at 25 Science Park, New Haven, Connecticut
06511.
Item 2. Identity and Background.
(a) This statement is being filed by Samuel D. Isaly, an individual,
("Isaly"), Viren Mehta, an individual, ("Mehta"), PHARMA/wHEALTH, an
unincorporated coproprietorship organized under the laws of the Grand-Duchy of
Luxembourg, M and I Investors, Inc., a corporation organized under the laws of
Delaware ("M and I"), Caduceus Capital, L.P., a limited partnership organized
under the laws of Delaware ("CCLP"), Caduceus Capital Management, Inc., a
corporation organized under the laws of Delaware ("CCMI"), Worldwide Health
Sciences Portfolio, a trust organized under the laws of New York ("Worldwide")
and Mehta and Isaly Asset Management, Inc., a corporation organized under the
laws of Delaware ("MIAMI" and together with Isaly, Mehta, PHARMA/wHEALTH, M and
I, CCLP, CCMI and Worldwide, the "Reporting Persons").
(b)-(c) PHARMA/wHEALTH is an unregistered foreign investment fund that
is not making, nor does it propose to make, any public offering of its
securities in the United States or to U.S. resident investors and currently has
no U.S. resident investors. PHARMA/wHEALTH has its principal offices at 31 Allee
Scheffer, L-2520, Luxembourg. M and I acts as the investment adviser to
PHARMA/wHEALTH pursuant to an Advisory Agreement dated October 14, 1993 (the
"PHARMA/wHEALTH Advisory Agreement") and, as such, has full discretionary
investment management authority with respect to the assets of PHARMA/wHEALTH. M
and I is an unregistered investment adviser and does not hold itself out to the
general public as an investment adviser. During the preceding 12 months, M and I
has acted as the investment adviser to fewer than 15 clients, none of which were
investment companies required to be registered under the Investment Company Act
of 1940, as amended. M and I has its principal offices at 41 Madison Avenue,
40th Floor, New York, NY 10010.
CCLP is an unregistered fund that has less than 100 investors and is not
making, nor does it propose to make, any public offering of its securities. CCLP
has its principal offices at 41 Madison Avenue, 40th Floor, New York, NY 10010.
Caduceus Management Partners, L.P. ("CMPLP") is the general partner of CCLP and,
pursuant to the Limited Partnership Agreement of CCLP dated January 1, 1994 (the
"CCLP Limited Partnership Agreement"), CMPLP has full discretionary investment
management authority with respect to the assets of CCLP. CCMI is the general
partner of CMPLP and, pursuant to the Limited Partnership Agreement of CMPLP
dated July 1, 1994 (the "CMPLP Limited Partnership Agreement"), CCMI has full
control over the management and operation of CMPLP. Thus, CCMI has full
discretionary investment management authority with respect
Page 19 of 128 Pages
to the assets of CCLP by virtue of its control over the management and operation
of CMPLP. CCMI is an unregistered investment adviser and does not hold itself
out to the general public as an investment adviser. During the preceding 12
months, CCMI has only acted as an investment adviser to CCLP. CCMI has its
principal offices at 41 Madison Avenue, 40th Floor, New York, NY 10010.
Worldwide is a registered open-end management investment company that
has its principal offices at 24 Federal Street, Boston, MA 02110. MIAMI,
formerly known as "G/A Capital Management, Inc," is a registered investment
adviser that has its principal offices at 41 Madison Avenue, 40th Floor, New
York, NY 10010. MIAMI acts as the investment adviser to Worldwide pursuant to an
Investment Management Agreement dated June 24, 1996 (the "Worldwide Advisory
Agreement"). As such, MIAMI has full discretionary management investment
authority with respect to the assets of Worldwide.
Mehta and Isaly, each a natural person, together own all of the
outstanding stock of, and jointly control the management and operation of, M and
I, CCMI and MIAMI. Mehta and Isaly each have as their business address the
following: 41 Madison Avenue, 40th Floor, New York, NY 10010.
The directors and executive officers of PHARMA/wHEALTH, M and I, CCLP,
CCMI, Worldwide and MIAMI are set forth on Schedule I, Schedule II, Schedule
III, Schedule IV, Schedule V and Schedule VI respectively, attached hereto.
Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V and Schedule VI
set forth the following information with respect to each such person:
(i) name;
(ii) business address (or residence address where indicated);
(iii) present principal occupation or employment and the name,
principal business and address of any corporation or other
organization in which such employment is conducted; and
(iv) citizenship.
(d)-(e) During the last five years, neither the Reporting Persons nor
any person named in Schedule I, Schedule II, Schedule III, Schedule IV, Schedule
V or Schedule VI attached hereto has been (a) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (b) a party to a civil
proceeding of a judicial or
Page 20 of 128 Pages
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
state securities laws or finding any violation with respect to such laws.
(f) Both Mehta and Isaly are citizens of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
On January 6, 1997, MIAMI, pursuant to its authority under the Worldwide
Advisory Agreement, caused Worldwide to use $437,500 of its working capital to
purchase 50,000 shares of Securities of the Issuer (the "January 6
Transaction"). As of the date of the January 6 Transaction, the Reporting
Persons were the beneficial owners of 405,500 shares of Securities, representing
approximately 5.5% of the outstanding Securities of the Issuer.
On January 17, 1997, M and I, pursuant to its authority under the
PHARMA/wHEALTH Advisory Agreement, caused PHARMA/wHEALTH to use $455,625 of its
working capital to purchase 45,000 shares of Securities of the Issuer (the
"January 17 Transaction"). As of the date of the January 17 Transaction, the
Reporting Persons were the beneficial owners of 450,500 shares of Securities,
representing approximately 6.1% of the outstanding Securities of the Issuer.
None of the Reporting Persons have acquired any additional shares of
Securities of the Issuer since January 17, 1997.
Item 4. Purpose of Transaction.
As described more fully in Item 3 above, this statement relates to the
acquisition of 95,000 shares of Securities by the Reporting Persons. The
Securities acquired by the Reporting Persons have been acquired for the purpose
of making an investment in the Issuer and not with the present intention of
acquiring control of the Issuer's business.
The Reporting Persons from time to time intend to review their
investment in the Issuer on the basis of various factors, including the Issuer's
business, financial condition, results of operations and prospects, general
economic and industry conditions, the securities markets in general and those
for the Issuer's securities in particular, as well as other developments and
other investment opportunities. Based upon such review, the Reporting Persons
will take such actions in the future as the Reporting Persons may deem
appropriate in light of the circumstances existing from time to time. If the
Reporting Persons believe that further investment in the Issuer is attractive,
whether because of the market price of the Issuer's securities or otherwise,
they may acquire shares of common stock or other securities of the Issuer either
in the open market or in privately negotiated transactions. Similarly, depending
on market and other factors, the Reporting Persons may determine to dispose of
Page 21 of 128 Pages
some or all of the Securities currently owned by the Reporting Persons or
otherwise acquired by the Reporting Persons either in the open market or in
privately negotiated transactions.
Except as set forth above, the Reporting Persons have not formulated any
plans or proposals which relate to or would result in: (a) the acquisition by
any person of additional securities of the Issuer or the disposition of
securities of the Issuer, (b) an extraordinary corporate transaction involving
the Issuer or any of its subsidiaries, (c) a sale or transfer of a material
amount of the assets of the Issuer or any of its subsidiaries, (d) any change in
the present board of directors or management of the Issuer, (e) any material
change in the Issuer's capitalization or dividend policy, (f) any other material
change in the Issuer's business or corporate structure, (g) any change in the
Issuer's charter or bylaws or other or instrument corresponding thereto or other
action which may impede the acquisition of control of the Issuer by any person,
(h) causing a class of the Issuer's securities to be deregistered or delisted,
(i) a class of equity securities of the Issuer becoming eligible for termination
of registration or (j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a)-(b) As a result of the January 6 Transaction and the January 17
Transaction, the Reporting Persons may be deemed to be the beneficial owners of
450,500 shares of Securities. Based upon information contained in the most
recent available filing by the Issuer with the SEC, such Securities constitute
approximately 6.1% of the issued and outstanding Securities. As described above
in Item 2, Isaly and Mehta together own all of the outstanding stock of each of
M and I, CCMI and MIAMI. M and I, CCMI and MIAMI have full discretionary
investment management authority with respect to the assets of PHARMA/wHEALTH,
CCLP and Worldwide, respectively. As a result, the Reporting Persons share power
to direct the vote and to direct the disposition of the 450,500 shares of
Securities.
(c) Except as disclosed in Item 3, neither the Reporting Persons, nor,
to the knowledge of the Reporting Persons, any person named in Schedule I,
Schedule II, Schedule III, Schedule IV, Schedule V or Schedule VI, has effected
any transaction in the Securities during the past 60 days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
Pursuant to the PHARMA/wHEALTH Advisory Agreement, M and I has full
discretionary investment management authority with respect to the assets of
Page 22 of 128 Pages
PHARMA/wHEALTH. Such authority includes the power to vote and otherwise dispose
of securities purchased by M and I on behalf of PHARMA/wHEALTH.
Pursuant to the CCLP Limited Partnership Agreement, CMPLP has full
discretionary investment management authority with respect to the assets of
CCLP. Pursuant to the CMPLP Limited Partnership Agreement, CCMI, has full
control over the management and operation of CMPLP. Through its control of
CMPLP, CCMI thus possesses full discretionary investment management authority
with respect to the assets of CCLP. Such authority includes the power to vote
and otherwise dispose of securities purchased by CCMI on behalf of CCLP.
Pursuant to the Worldwide Investment Advisory Agreement, MIAMI has full
discretionary investment management authority with respect to the assets of
Worldwide. Such authority includes the power to vote and otherwise dispose of
securities purchased by MIAMI on behalf of Worldwide.
Mehta and Isaly together own all of the outstanding stock of, and
jointly control the management and operation of, M and I, CCMI and MIAMI.
Other than the investment management agreements and the relationships
mentioned above, to the best knowledge of the Reporting Persons, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
among the persons named in Item 2 and between such persons and any persons with
respect to any securities of the Issuer, including, but not limited to, transfer
or voting of any of the Securities, finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantees of profits, division of profits
or loss, or the giving of withholding of proxies.
Page 23 of 128 Pages
Item 7. Material to Be Filed as Exhibits.
Exhibit Description
A. Advisory Agreement between PHARMA/wHEALTH and M and I Investors,
Inc. dated October 14, 1993.
B. Limited Partnership Agreement of Caduceus Capital, L.P. dated January 1,
1994.
C. Limited Partnership Agreement of Caduceus Management Partners, L.P. dated
July 1, 1994.
D. Investment Advisory Agreement between Worldwide Health Sciences Portfolio
and Mehta and Isaly Asset Management, Inc. dated June 24, 1996.
E. Joint Filing Agreement among Samuel D. Isaly, Viren Mehta,
PHARMA/wHEALTH, M and I Investors, Inc., Caduceus Capital, L.P.,
Caduceus Capital Management, Inc., Worldwide Health Sciences Portfolio and
Mehta and Isaly Asset Management, Inc.
Page 24 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 SAMUEL D. ISALY
By: /s/ Samuel D. Isaly
-----------------------
Name:
Title:
Page 25 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 VIREN MEHTA
By: /s/ Viren Mehta
-------------------
Name:
Title:
Page 26 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 PHARMA/wHEALTH
By: /s/ Mirko von Restorff
-------------------------
Name: Mirko von Restorff
Title: Chairman
Page 27 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 M AND I INVESTORS, INC.
By: /s/ Samuel D. Isaly
--------------------------
Name: Samuel D. Isaly
Title: President
Page 28 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 CADUCEUS CAPITAL, L.P.
By: /s/ Samuel D. Isaly
-----------------------
Name: Samuel D. Isaly
Title:
Page 29 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 CADUCEUS CAPITAL
MANAGEMENT, INC.
By: /s/ Samuel D. Isaly
-----------------------
Name: Samuel D. Isaly
Title: President
Page 30 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 WORLDWIDE HEALTH
SCIENCES PORTFOLIO
By: /s/ Eric G. Woodbury
-------------------------
Name: Eric G. Woodbury
Title: Assistant Secretary
Page 31 of 128 Pages
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
January 28, 1997 MEHTA AND ISALY ASSET
MANAGEMENT, INC.
By: /s/ Samuel D. Isaly
-----------------------
Name: Samuel D. Isaly
Title: President
Page 32 of 128 Pages
Schedule I
The name and present principal occupation of each of the
executive officers and directors of PHARMA/wHEALTH are set forth below.
===============================================================================
Name and Position with Reporting Principal Occupation
Citizenship Person and Business Address
- -------------------------------------------------------------------------------
Mirko von Restorff Chairman General Manager
Bank Sal. Oppenheim jr.
German citizen & Cie. Luxembourg S.A.
31 Allee Scheffer
L-2520
Luxembourg
- -------------------------------------------------------------------------------
Rene Braginsky Director Senior Vice President
Bank Sal. Oppenheim jr.
Swiss citizen & Cie. (Schweiz) AG
Uraniastrasse 28
CH 8022
Zurich, Switzerland
- -------------------------------------------------------------------------------
Paul Helminger Director President
Serie S.A.
Luxembourg citizen 55 Rue Michel Rodange
L-2430
Luxembourg
- -------------------------------------------------------------------------------
Samuel D. Isaly Director Partner
Mehta and Isaly
United States citizen 41 Madison Avenue
40th Floor
New York, NY 10010
- -------------------------------------------------------------------------------
Joel R. Mesznik Director President
Mesco Ltd.
United States citizen 122 East 42nd Street
Suite 4906
New York, NY 10168
Page 33 of 128 Pages
- -------------------------------------------------------------------------------
Georg von Richter Director General Manager
Bank Sal. Oppenheim jr.
German citizen & Cie. (Schweiz) AG
Uraniastrasse 28
CH 8022
Zurich, Switzerland
===============================================================================
Page 34 of 128 Pages
Schedule II
The name and present principal occupation of each of the executive
officers and directors of M and I Investors, Inc. are set forth below. Unless
otherwise noted, each of these persons are United States citizens and have as
their business address 41 Madison Avenue, 40th Floor, New York, NY 10010.
===============================================================================
Position with Reporting
Name Person Principal Occupation
- -------------------------------------------------------------------------------
Samuel D. Isaly President, Director Partner
Mehta and Isaly
- -------------------------------------------------------------------------------
Viren Mehta Secretary, Treasurer, Director Partner
Mehta and Isaly
===============================================================================
Page 35 of 128 Pages
Schedule III
The name and present principal occupation of each of the general partner
of Caduceus Capital, L.P. are set forth below. Caduceus Capital Management, Inc.
is a Delaware corporation and has as its business address 41 Madison Avenue,
40th Floor, New York, NY 10010.
===============================================================================
Position with Reporting
Name Person Principal Occupation
- -------------------------------------------------------------------------------
Caduceus Capital General Partner Investment advisory
Management, Inc. services
===============================================================================
Page 36 of 128 Pages
Schedule IV
The name and present principal occupation of each of the executive
officers and directors of Caduceus Capital Management, Inc. are set forth below.
Unless otherwise noted, each of these persons are United States citizens and
have as their business address 41 Madison Avenue, 40th Floor, New York, NY
10010.
===============================================================================
Position with Reporting
Name Person Principal Occupation
- -------------------------------------------------------------------------------
Samuel D. Isaly President, Director Partner
Mehta and Isaly
- -------------------------------------------------------------------------------
Viren Mehta Treasurer, Director Partner
Mehta and Isaly
===============================================================================
Page 37 of 128 Pages
Schedule V
The name and present principal occupation of each of the executive
officers and directors of Worldwide Health Sciences Portfolio are set forth
below. Unless otherwise noted, each of these persons are United States citizens.
===============================================================================
Position with Reporting
Name Person Principal Occupation
- -------------------------------------------------------------------------------
Donald R. Dwight Trustee President
Dwight Partners, Inc.
Clover Mill Lane
Lyme, NH 03768
- -------------------------------------------------------------------------------
James B. Hawkes Trustee, President President, CEO
Eaton Vance Corp.
24 Federal Street
Boston, MA 02110
- -------------------------------------------------------------------------------
Samuel L. Hayes, III Trustee Professor
Harvard University
Graduate School of
Business Administration
Soldiers Field Road
Boston, MA 02163
- -------------------------------------------------------------------------------
Samuel D. Isaly Vice President Partner
Mehta and Isaly
41 Madison Avenue,
40th Floor
New York, NY 10010
- -------------------------------------------------------------------------------
James L. O'Connor Treasurer Vice President
Eaton Vance
Management, Inc.
24 Federal Street
Boston, MA 02110
- -------------------------------------------------------------------------------
Thomas Otis Secretary Vice President
Eaton Vance
Management, Inc.
24 Federal Street
Boston, MA 02110
Page 38 of 128 Pages
- -------------------------------------------------------------------------------
Norton H. Reamer Trustee President, Director
United Asset
Management Corp.
One International Plaza
Boston, MA 02110
- -------------------------------------------------------------------------------
John L. Thorndike Trustee Director
Fiduciary Company
Incorporated
175 Federal Street
Boston, MA 02110
- -------------------------------------------------------------------------------
Jack L. Treynor Trustee Investment Adviser,
Consultant
504 Via Almar
Palos Verdes Estates, CA
90274
===============================================================================
Page 39 of 128 Pages
Schedule VI
The name and present principal occupation of each of the executive
officers and directors of Mehta and Isaly Asset Management, Inc. are set forth
below. Unless otherwise noted, each of these persons are United States citizens
and have as their business address 41 Madison Avenue, 40th Floor, New York, NY
10010.
===============================================================================
Position with Reporting
Name Person Principal Occupation
- -------------------------------------------------------------------------------
Samuel D. Isaly Director, President, Secretary Partner
Mehta and Isaly
- -------------------------------------------------------------------------------
Thomas F. Tarpey Director, Vice President, Marketing Representative
Treasurer Marshall and Sullivan
1907 Selby Avenue
Suite 5
Los Angeles, CA 90025
===============================================================================
Page 40 of 128 Pages
EXHIBIT INDEX
===============================================================================
Exhibit Description Page No.
- -------------------------------------------------------------------------------
A. Advisory Agreement between 42
PHARMA/wHEALTH and M and I Investors,
Inc. dated October 14, 1993.
- -------------------------------------------------------------------------------
B. Limited Partnership Agreement of Caduceus 52
Capital, L.P. dated January 1, 1994.
- -------------------------------------------------------------------------------
C. Limited Partnership Agreement of Caduceus 82
Management Partners, L.P. dated July 1,
1994.
- -------------------------------------------------------------------------------
D. Investment Management Agreement between 120
Worldwide Health Sciences Portfolio and
Mehta and Isaly Asset Management, Inc.
dated June 24, 1996.
- -------------------------------------------------------------------------------
E. Joint Filing Agreement among Samuel D. 125
Isaly, Viren Mehta, PHARMA/wHEALTH,
M and I Investors, Inc., Caduceus Capital,
L.P., Caduceus Capital Management, Inc.,
Worldwide Health Sciences Portfolio and
Mehta and Isaly Asset Management, Inc.
===============================================================================
Page 41 of 128 Pages
ADVISORY AGREEMENT
Exhibit A.
----------
ADVISORY AGREEMENT, dated as of this 14th day of October, 1993 (the
"Agreement"), by and between PHARMA/wHEALTH Management Company S.A., a company
incorporated under the laws of Grand Duchy of Luxembourg (the "Management
Company"), and M and I Investors, Inc., a Delaware corporation, which will make
available the services of Messrs. Mehta and Isaly and their whole professional
organisation and its resources (the "Advisor").
PHARMA/wHEALTH, organized under the laws of the Grand Duchy of
Luxembourg as a mutual investment fund (fond commun de placement) (the "Fund"),
has retained the Management Company to manage the Fund's assets and appoint such
advisors in so doing, and the Management Company desires to engage the Advisor
in rendering such services to the Fund.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and for other good and valuable consideration, the
parties hereto agree as follows:
1. Appointment. The Management Company hereby appoints the Advisor to
provide investment advice and other services to it on behalf of the Fund during
the period of this Agreement and on the terms and conditions contained herein,
and the Advisor hereby accepts such appointment.
2. Duties of the Advisor. The Management Company may at any time give
the Advisor guidelines and/or directions relating to the Advisor's duties
hereunder, both in regard to the general policy of the Fund and in regard to
specific matters and, subject to the foregoing:
(a) The Advisor shall manage, under the supervision and responsibility
of the Management Company, the investment and reinvestments of the Fund's assets
and sell, redeem or exchange the same, without any rights to custody or
possession of such assets, provided that the Advisor shall observe and comply
with the Management Regulations of the Fund, all investment policies and
restrictions and other limitations set out in the Prospectus of the Fund as
amended or supplemented from time to time (the "Prospectus") and all laws and
regulations applicable to the Fund and the public sale of its shares (the
"Shares");
(b) The Advisor may enter into such contracts in the name of the Fund as
may be necessary to carry out its duties hereunder. All records relating to the
Fund's portfolio transactions maintained by the Advisor shall be made available
for inspection or audit by the Fund and the Management Company, or by a
qualified public accountant acting on their behalf or a duly appointed
representative of the Fund, both before and after termination of the Agreement.
2
(c) The Advisor shall, in the event the availability of any particular
security is limited and investment in that security is in keeping with the
investment policies, guidelines and objectives of the Fund and also with the
investment policies, guidelines and objectives of one or more other funds or
client accounts for which the Advisor is responsible, treat the Fund's
requirements on a fair and equitable basis.
3. Allocation of Charges and Expenses. Each party shall bear its own
costs and expenses (including the fees and disbursements of counsel and
accountants) incurred in connection with the negotiation, preparation and
execution of this Agreement, and all matters incident thereto.
4. Compensation of Advisor. For the services rendered by the Advisor,
the Management Company shall pay to the Advisor at the end of each quarter a fee
based upon the average of the net assets of the Fund on the Valuation Dates (as
defined in the Prospectus) of the relevant quarter, as determined and computed
in accordance with the description of the determination of the net asset value
contained in the Prospectus, at the annual rate of five-eighths of one percent
(the "Fixed Fee"). Such fee will be calculated on each Valuation Date of each
quarter.
The Advisor is also entitled to receive sixty-two and one-half percent
of the twenty percent annual performance fee (the "Performance Fee") received by
the Management Company if the Fund's performance is in excess of eight percent
in any year and the Advisor shall receive seventy percent of the portion of the
Performance Fee earned for performance in excess of twenty percent in any year
and the amount, if any, payable to the Advisor shall be paid no later than 7
days after receipt by the Management Company of its Performance Fee, which will
be paid after the end of each fiscal year of the Fund.
Moreover, the Performance Fee is only paid when and if the Net Asset
Value per Share reaches a new high compared to the previous high and only on the
new excess appreciation over the previous high for the Net Asset Value per
Share. The Net Asset Value per Share will also be adjusted to reflect dividends
and other distributions.
All matters relating to the Fixed Fee and Performance Fee shall be
determined in accordance with the Prospectus.
The Management Company and the Advisor intend to enter into a deferred
fee agreement pursuant to which the Advisor may elect to defer the receipt of
all or any portion of the Fixed Fee and Performance Fee that shall become
payable to it for any year pursuant to this Section (4). To the extent such fees
are not deferred, the Management Company shall pay the Advisor's Fixed Fee and
Performance Fee to a bank account as designated in writing by and in accordance
with the instructions of the Advisor. At the option of the Advisor, such payment
shall be made to a bank account outside of the U.S. in currency other than
3
U.S. dollars. The first such payments may reflect partial periods, in which case
payments with respect thereto shall be calculated on a pro rata basis in
accordance with the number of Valuation Dates occurring therein.
If this Agreement is terminated prior to the end of a calendar quarter,
the Fixed Fee to which the Advisor shall be entitled in respect of such quarter
shall be calculated on a pro rata basis in accordance with the number of
Valuation Dates in the quarter during which the Agreement was in effect. The
Performance Fee to which the Advisor shall be entitled during any such period
shall be commensurate to the contribution, as calculated by the Management
Company in its absolute discretion, of the Advisor to the total Performance Fee
for the complete year, with the exception of termination caused by paragraph
11(d) below, in which case the Advisor shall be entitled to the Performance Fee
accrued at the last Valuation Date of this Agreement and such Performance Fee
shall be paid to the Advisor after the completion of the Fiscal Year during
which the termination occurred.
5. Use of Securities Broker. The Advisor may utilize the services of
whatever independent securities brokerage firm or firms it deems appropriate to
the extent that such firms are competitive with respect to price and timeliness
of execution.
6. Limitation on Liability of the Advisor. The Advisor shall not be
liable for any error of judgment or mistake of law or for any loss arising out
of any investment or for any act or omission in the management of the Fund,
except where such error or loss results from the Advisor's willful misfeasance,
bad faith or gross negligence in the performance of its duties, or by reason of
the reckless disregard of its obligations and duties hereunder.
7. Indemnities. The Advisor agrees to indemnify the Management Company
and the Fund, and their respective directors, officers, agents, employees and
affiliates and any person who controls such persons or entities from, and to
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them arising out of or by reason of any
investigation, litigation or other proceeding brought or threatened, relating to
any breach or alleged breach of the Advisor's obligations, duties,
representations and warranties as set forth in this Agreement; including,
without limitation, amounts paid in settlement, court costs, and reasonable fees
and disbursements of counsel incurred in connection with any such pending or
threatened investigation, litigation or other proceedings.
The Management Company agrees to indemnify the Advisor and its
directors, officers, agents, employees and affiliates and any person who
controls the Advisor from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages or expenses incurred by any of them arising
out of or by reason of any investigation, litigation or other proceeding brought
or threatened, relating to the offering and distribution of shares
4
of the Funds ("Shares") and the Advisor's obligations and duties set forth in
this Agreement with respect to such offering and distribution of Shares
(excluding any losses, liabilities, claims, damages or expenses incurred by
reason of the breach by the Advisor of its obligations, duties, representations
or warranties hereunder or the gross negligence, bad faith or willful misconduct
of the Advisor); including, without limitation, amounts paid in settlement,
court costs, and reasonable fees and disbursements of counsel incurred in
connection with any such pending or threatened investigation, litigation or
other proceedings.
8. Representations and Warranties. (a) The Management Company hereby
represents and warrants to the Advisor as follows: the Management Company is a
company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation, has the power and authority under its
Articles of Incorporation to transact the business herein contemplated and is
duly qualified and in good standing under the laws of each jurisdiction where
the conduct of its business requires, or the performance of its obligations
under this Agreement would require, and has the power and authority to execute,
deliver and perform this Agreement and all obligations required of it hereunder.
No consent of any other person including, without limitation, creditors of the
Management Company, and no license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority, is required by the Management Company in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement. This Agreement constitutes, and each instrument or document required
hereunder when executed and delivered will constitute, the legal, valid and
binding obligation of the Management Company enforceable against the Management
Company in accordance with its terms.
(b) The Advisor hereby represents and warrants to the Management Company
as follows:
(i) The Advisor is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization,
has the power and authority under its Certificate of Incorporation to own
its assets and to transact the business in which it is presently engaged
and is duly registered or exempt from registration under applicable
securities laws and has all necessary qualifications to carry out its
duties hereunder, and the Advisor covenants to use its best efforts to
maintain the same at all times to the extent required for purposes of
carrying out its duties hereunder, and shall immediately notify the
Management Company if such registration and/or qualification should lapse
or terminate for any reason whatsoever; and the Advisor has the power and
authority under its Certificate of Incorporation to execute, deliver and
perform this Agreement and all obligations required of it hereunder. This
Agreement constitutes, and each instrument or document required hereunder
when executed and delivered will constitute, the legal, valid and binding
obligation of the Advisor enforceable against the Advisor in accordance
with its
5
terms. No consent of any other person including, without limitation,
stockholders or creditors of the Advisor, and no license, permit, approval
or authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority, other than those
which have been obtained or will be obtained in connection with this
Agreement, is required by the Advisor in connection with the execution,
delivery, performance, validity or enforceability of this Agreement.
(ii) All of the information provided by the Advisor, including the
information provided by it for use in the Prospectus and related documents
in connection with the sale of Shares of the Fund, is and will continue to
be accurate in all material respects and does not and will not omit any
material facts necessary in order to make the statements made, in light of
the circumstances under which they were made or shall be made, not
misleading. The Advisor agrees to provide such of the foregoing information
as may be required from time to time by the Management Company, and all
such information shall also be subject to the foregoing representation and
warranty regarding the continuous accuracy of information provided by the
Advisor.
(iii) The execution, delivery and performance of this Agreement and
the documents or instruments required hereunder will not violate any
provision of any existing law or regulation binding on the Advisor, or any
order, judgment, award or decree of any court, arbitrator or governmental
authority binding on the Advisor or its Certificate of Incorporation or of
any mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which the Advisor is a party or by which the Advisor or any
of its assets are bound, the violations of which, taken as a whole, would
have a material adverse affect on the business operations, assets or
financial condition of the Advisor, and will not result in or require the
creation or imposition of any lien on any of its property, assets or
revenues pursuant to the provisions of any such mortgage, indenture, lease,
contract or other agreement, instrument or undertaking.
9. Exclusivity. Messrs. Viren Mehta and Samuel D. Isaly, the Advisor and
its affiliates, partners, associates, and employees (together, for purposes of
this Section 9, the "Advisor") do not presently and will not act as an
investment adviser, subadviser and/or portfolio manager to any European fund
other than the Fund until the later of (a) three full fiscal years of the Fund
following the date hereof or (b) for one full fiscal year of the Fund after the
date of termination hereof; provided, that (i) if the Management Company
terminates this Agreement at any time for any reason other than a beach by the
Advisor or its nonperformance of its duties and obligations hereunder, or (ii)
if the Management Company is unable to perform its duties under this Agreement
for any reason other than such a beach or nonperformance by the Advisor, the
terms of this Section 9 shall not limit the activities of the Advisor after the
effective date of such termination.
6
Notwithstanding the foregoing, if after a period of 24 months from the
initial Valuation Date of the Fund (the "Period") (1) the Net Asset Value per
Share of the Fund has increased by more than (a) the percentage increase, if
any, of the Mehta and Isaly Pharma Index ("Index") during the Period plus (b) an
increase of 3% of the Net Asset Value per Share at the Fund at the end of the
Period compared to its Net Asset Value per Share at the commencement of the
Period and (2) the Fund has achieved an annualized performance in excess of 20%
above its initial Net Asset Value per Share, then the Management Company, upon
notification by the Advisor within 60 days after the end of the Period, shall be
given a period of 12 months to use its best efforts to raise an additional $50
million in assets for the Fund or an amount which would bring total assets of
the Fund to $150 million, whichever is less. If the Management Company is unable
for any reason to raise such additional assets within such 12-month period, the
terms of this Section 9 shall not preclude the Advisor from acting as an
investment adviser, subadviser and/or portfolio manager on behalf of any
European funds other than the Fund; provided that, until December 31, 1999, the
Advisor may so act on behalf of such other European funds only if the portion of
the combined assets thereof that is invested in companies with a capitalization
of under $500 million ("smaller capitalization companies"), when added to the
assets of the Fund that are invested in smaller capitalization companies, does
not exceed $150 million.
10. Assignment. This Agreement may not be assigned by the Advisor. The
Advisor shall not delegate in any manner whatsoever its responsibilities
hereunder not engage other investment counsel in connection therewith.
11. Term and Termination. This Agreement shall be in full force and
effect for two years from the date hereof and may not be terminated by either
party during such initial two year period, except that the Management Company
may terminate this Agreement at any time, without notice or upon such notice as
is reasonable in the circumstances (in the sole discretion of the Management
Company), in the event of:
(a) a breach by the Advisor of any of its representations and warranties
contained herein or the nonperformance of its duties and obligations hereunder;
or bad faith, gross negligence or willful misconduct, of the Advisor:
(b) with respect to either the Advisor [or Mehta and Isaly], its
bankruptcy or insolvency, the passing of a resolution for its dissolution or the
issuance of an order for dissolution, the making of a general assignment for the
benefit of its creditors, or the failure of either Messrs. Mehta or Isaly to
continue to be available and participate on substantially the same basis as
currently in the activities of each such entity;
(c) in the event the Advisor fails to obtain or maintain any necessary
registration or qualification in any jurisdiction required to effect the
purposes of this Agreement; or
7
(d) the failure of the Advisor for any consecutive twenty-four month
period to cause the net asset value per share of the Fund to increase by more
than (a) the increase, if any, of the Index in that period plus (b) 3% of the
closing value of the Index at the end of the period, as indicated by the Fund's
performance as calculated net of dividends on a pre-tax basis.
After the expiration of the initial two year period, this Agreement may
be terminated at any time by either the Management Company or the Advisor by
giving the other party 60 days' prior written notice of termination. Upon
termination of this Agreement, the Advisor shall not be entitled to any further
fees except those which have accrued up to the date of such termination.
Notwithstanding any termination, (i) the Advisor shall up-date and reconcile all
books and records maintained by it and submit the same and all final financial
reports relating to the management and investment of the Fund's assets promptly
to the Management Company and (ii) the provisions of Section 9 shall remain in
effect.
12. Notice. Any notice contemplated hereunder shall be in writing and
may be given by personal delivery or by sending the same by electronic or
computer communication to the party for whom it is intended. Any notice so
delivered or sent shall be effective on the date of delivery or sending, as the
case may be. Any party may give written notice of change of address in the same
manner, in which event, any notice shall thereafter be given to it, as herein
provided, at such changed address. Until changed, the addresses for notice of
the parties shall be:
if to the Management Company, at: with a copy to:
PHARMA/wHEALTH Management Kramer, Levin, Naftalis, Nessen,
Company S.A. Kamin & Frankel
[Address] 919 Third Avenue
Attention: New York, NY 10022
Fax No.: Attn: Paul S. Schreiber
and
if to the Advisor, at: with a copy to:
[Name of Entity] [Name of Firm]
[Address] [Address]
Attention: Attention:
Fax No.: Fax No.:
8
13. Miscellaneous.
(a) Governing Law This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of the conflicts of laws thereof.
(b) Entire Agreement/Amendments This Agreement contains the entire
understanding of the parties with respect to the retention of the Advisor by the
Management Company. This Agreement may not be altered, modified, or amended
except by written instrument signed by each of the parties hereto.
(c) No Waiver The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver of
such party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
(d) Severability In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
(e) Arbitration: Choice of Forum Any dispute between the parties to this
Agreement arising from or relating to the terms of this Agreement or the
retention of the Advisor by the Management Company shall be submitted to
arbitration in the City of New York under the auspices of the American
Arbitration Association. Subject to the preceding sentence, the forum of any
legal action or proceeding arising from or relating to this Agreement or such
retention shall be the State of New York and, in the case of legal actions, the
United Stares federal district court for the Southern District of New York. Any
award rendered in any arbitration pursuant to this Section 13(e) may be enforced
in any such forum. By execution and delivery of this Agreement, each of the
parties to this Agreement accepts for himself or itself the non-exclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement. The Advisor and the
Management Company, agree within 30 days of the date hereof, to appoint
irrevocably respective agents as their agents to receive service of process on
their behalf in any such proceeding in any such court in the State of New York.
The foregoing consents to jurisdiction and appointments of agents to receive
service of process shall not constitute general consents to service of process
in the State of New York for any purpose except as provided above and shall not
be deemed to confer rights on any person other than the respective parties to
this Agreement.
(f) Other Arrangements It is recognized by the parties hereto that the
Bank Sal. Oppenheim jr. & Cie. Schweiz AG, the Advisor, Messrs. Mehta and Isaly,
Mr.
9
Joel R. Mesznik and their respective affiliates and employees have had and will
continue to have business relationships amongst themselves which may be expanded
in the future.
(g) Counterparts This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument. This Agreement shall
be effective when each of the parties has executed and delivered at least one
counterpart thereof.
(h) Headings The headings of the paragraphs and subparagraphs of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof and shall not affect the interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
M AND I INVESTORS, INC. PHARMA/wHEALTH MANAGEMENT
COMPANY S.A.
By: /s/ Samuel D. Isaly By: /s/ Joel R. Mesznik
- ------------------------------------- ----------------------------------
Title: President Title: Director
ATTEST: ATTEST:
/s/ Stephen E. Elliott /s/ Stephen E. Elliott
- ------------------------------------- ----------------------------------
As to Section 9 only. As to Section 9 only.
/s/ Viren Mehta /s/ Samuel D. Isaly
- ------------------------------------- ----------------------------------
Mr. Viren Mehta Mr. Samuel D. Isaly
ATTEST: ATTEST:
/s/ Stephen E. Elliott /s/ Stephen E. Elliott
- ------------------------------------- ----------------------------------
LIMITED PARTNERSHIP AGREEMENT Exhibit B.
OF
CADUCEUS CAPITAL, L.P.
(Amended and Restated as of January 1, 1994)
AGREEMENT OF LIMITED PARTNERSHIP, dated as of __________, by
and among Caduceus Management Partners, L.P. as general partner (the "General
Partner") and all the parties who sign copies of this agreement to become
Limited Partners. (The General Partner and the persons who sign as Limited
Partners are sometimes collectively referred to as the "Partners").
ARTICLE I
General Provisions
Section 1.01 Formation. The original parties hereto formed
Caduceus Capital, L.P. as a limited partnership (the "Partnership") pursuant to
the provisions of the Delaware Revised Uniform Limited Partnership Act. The
existence of the Partnership commenced upon the filing with the Secretary of
State of Delaware of a Certificate of Limited Partnership in accordance with the
provisions of such law.
Section 1.02 Partnership Name. The name of the Partnership is
Caduceus Capital, L.P.
Section 1.03 Purpose. The primary purpose of the Partnership
is to invest, reinvest and trade in securities, other financial instruments and
rights and options relating thereto.
Section 1.04 Registered Office and Agent for Service of
Process. The registered office of the Partnership is at 1209 Orange Street
Wilmington, Delaware 19801 and the registered agent for service of process at
such office is The Corporation Trust Company.
Section 1.05 Place of Business. The principal place of
business of the Partnership shall be at 41 Madison Avenue, New York, New York
10010 or such other place as the General Partner shall determine from time to
time.
Section 1.06. Fiscal Year and Fiscal Periods. The fiscal year
of the Partnership shall end on December 31 of each year, subject to change by
the General Partner from time to time. A new fiscal period ("Fiscal Period")
shall commence on the first day of each fiscal year, on each date of any capital
contribution to the Partnership and on each date next following the date of any
withdrawal of capital or retirement of any Partner from the Partnership, and the
prior Fiscal Period shall end on the date immediately preceding such date of
commencement of a new Fiscal Period.
2
Section 1.07 Liability of Limited Partners. The Limited
Partners shall not be liable for any liabilities, or for the payment of any
debts and obligations, of the Partnership unless such Limited Partner, in
addition to the exercise of his rights and powers as a Limited Partner,
participates in the control of the Partnership or knowingly permits his name to
be used in the name of the Partnership.
Section 1.08 Assignability of the Interest of a Limited
Partner. The limited partnership interest of any Limited Partner in the
Partnership, in whole or in part, or any beneficial interest therein, may not be
assigned without the prior written consent of the General Partner, which consent
may be withheld in the General Partner's sole discretion. Upon such an
assignment of a limited partnership interest, the assignee shall become a
Limited Partner upon the execution of such agreements and other documents as
shall be required by the General Partner.
ARTICLE II
Composition and Admissions
Section 2.01 Partners. The names and addresses of the General
Partner and of each of the Limited Partners shall be set forth in a schedule of
the Partnership to be kept on file at all times at the principal place of
business of the Partnership. A Partner may change his or its address for
purposes of this Agreement upon 5 days prior written notice to the General
Partner.
Section 2.02 Admission of Partners. With the prior consent of
the General Partner, additional Limited Partners may be admitted to the
Partnership on any date selected by the General Partner. The General Partner may
admit additional or substitute General Partners to the Partnership on the first
day of any fiscal quarter, provided that the General Partner shall, not less
than 45 days prior to the proposed admission of any additional or substitute
General Partner, give notice of such admission to all of the Limited Partners.
Contributions to the capital of the Partnership shall be made in cash or, at the
discretion of the General Partner, in securities acceptable to the General
Partner or partly in cash and partly in securities acceptable to the General
Partner, such securities to be valued in accordance with the provisions of
Section 8.02(b). Each Partner who has contributed or may contribute securities
to the Partnership shall, prior to the date of any such contribution, furnish to
the Partnership evidence, satisfactory to the General Partner, as to his dates
of acquisition of such securities, his unencumbered ownership thereof and his
adjusted basis thereof for federal income tax purposes. Each Partner who
contributes securities to the Partnership shall consent and agree to pay to the
Partnership, concurrently with such contribution, or, alternatively, to have
deducted from such contribution, en' amount as the General Partner, in its sole
discretion, may determine to cover the costs of selling such securities and
investing the proceeds. In connection with the admission of a Partner to the
Partnership, such Partner shall, in advance of such admission and as a condition
thereto,
3
sign a copy of this Agreement or a supplement hereto pursuant to which he agrees
to be bound by the terms of this Agreement.
ARTICLE 111
Management of Partnership
Section 3.01 Actions of the General Partner. The Partnership
shall be managed by its General Partner, Caduceus Management Partners, L.P. The
General Partner may appoint such agents of the Partnership as it deems necessary
who shall hold such offices and shall, under the direction of the General
Partner, exercise such powers of the General Partner in the management of the
Partnership and perform such duties in connection therewith as shall be
determined from time to time by the General Partner. The General Partner shall
devote so much of its time and efforts to the affairs of the Partnership as may,
in its judgment, be necessary to accomplish the purposes of the Partnership.
Nothing herein contained shall prevent the General Partner, its partners and
affiliates, or any employee, officer or shareholder thereof from conducting any
other business, including any business with respect to securities. Without
limiting the generality of the foregoing, the General Partner, its partners,
affiliates, or any employee, officer or shareholder thereof, from conducting any
other buisness, including any business with respect to securities. Without
limiting the generality of the foregoing, the General Partner, its partners,
affiliates, and any employee, officer or shareholder thereof, may act as
investment advisers or investment managers for others, may manage funds or
capital for others, may have, make and maintain investments in their own name or
through other entities, and may serve as officers, directors, consultants,
partners or stockholders of one or more investment funds, partnerships,
securities firms or advisory firms. It is recognized that in effecting
transactions, it may not always be possible, or consistent with the investment
objectives of the various persons described above and of the Partnership, to
take or liquidate the same investment positions at the same time or at the same
prices.
Section 3.02 Powers of the General Partner. The General
Partner, subject to the restrictions herein contained, shall have the power on
behalf of the Partnership:
(a) to purchase, hold and sell securities of any sort and
rights therein, on margin or otherwise;
(b) to sell short securities of any sort and rights therein,
on margin or otherwise, and to cover such short sales;
(c) to write, purchase, hold, sell and otherwise deal in put
and call options and any combination thereof on stocks, bonds and stock
market indices;
(d) to purchase, hold, sell and otherwise deal in commodities,
commodity contracts, commodity futures and options in respect thereof
(but the General Partner will
4
not do so until, to the extent required, it has registered as a
commodity pool operator with the Commodity Futures Trading Commission);
(e) to purchase, hold, sell and otherwise deal in financial
futures and contracts relating to stock indices (and options thereon)
(but the General Partner will not do so until, to the extent required,
it has registered as a commodity pool operator with the Commodity
Futures Trading Commission);
(f) to purchase, hold, sell and otherwise deal in foreign
currencies and futures contracts relating thereto (and options thereon)
(but the General Partner will not do so until, to the extent required,
it has registered as a commodity pool operator with the Commodity
Futures Trading Commission);
(g) to conduct margin accounts with brokers; to open, maintain
and close bank accounts and draw checks or other orders for the payment
of moneys; to pledge securities for loans, and, in connection with any
such pledge, to effect borrowings from brokers, banks and other
financial institutions,
(h) to enter into, make and perform any other contracts,
agreements or other undertakings it may deem advisable in conducting
the business of the Partnership, including but not limited to
contracts, agreements or other undertakings with persons, firms or
corporations with which the General Partner, or any of its officers or
employees, or any other Partner is affiliated; and
(i) to act for the Partnership in all other matters.
Section 3.03 Restrictions on the General Partner. The General
Partner shall not on behalf of the Partnership (a) invest more than 15% of its
net assets (computed at the time the investment is made) in the securities of
any one company, (b) invest more than 10% of its assets (computed at cost at the
time of the investment) in non-marketable or illiquid securities; or (c) invest
in real estate.
Section 3.04 Limitation of Liability; Indemnification.
(a) Neither the General Partner, its partners, affiliates, any
employee, officer or shareholder thereof, nor any person or persons designated
pursuant to Section 6.02 shall be liable for any loss or cost arising out of, or
in connection with, or any act or activity undertaken (or omitted to be
undertaken) in fulfillment of any obligation or responsibility under this
Agreement, including any such loss sustained by reason of any investment or the
sale or retention of any security or other asset of the Partnership, except that
any person exculpated from liability under this Section shall not be exculpated
from any liability arising from losses caused by his, her or its gross
negligence or willful malfeasance.
5
(b) The Partnership shall indemnify the General Partner, its
partners, affiliates and any employee, officer or shareholder thereof, from and
against any and all losses or costs suffered or sustained by the General
Partner, its partners or affiliates or any officer or employee thereof, arising
out of or in connection with any act or activities undertaken (or omitted to be
undertaken) in fulfillment of any obligation or responsibility under this
Agreement, including, without limitation, any judgment, settlement, reasonable
attorney's fees and other costs or expenses incurred in connection with the
defense of any actual or threatened action or proceeding, except that any person
entitled to be indemnified under this Section shall not be indemnified for any
loss or expense arising out of his, her or its gross negligence or willful
malfeasance.
ARTICLE IV
Expenses of Partnership, Organizational Expenses
and Fee to the General Partner
Section 4.01 Expenses of Partnership Generally. The General
Partner shall be authorized to incur all expenses on behalf of the Partnership
which it deems necessary or desirable. All expenses incurred in connection with
the operation of the Partnership. shall be the responsibility of, and be borne
by, the Partnership. To the extent the General Partner pays expenses for which
the Partnership is responsible, it shall be entitled to be reimbursed by the
Partnership for such amounts. The General Partner shall be empowered to reduce
the expenses of the Partnership through the use of "soft" or commission dollars
to the extent legally permissible. The General Partner (or an affiliate of the
General Partner) will bear overhead expenses of the Partnership, including
salaries of administrative personnel and research assistants, travel and
research related expenses.
Section 4.02 Organizational Expenses. The General Partner
shall be authorized to incur on behalf of the Partnership the organizational
expenses of the Partnership, including all expenses incurred in connection with
the offer and sale of interests in the Partnership ("Organizational Expenses").
Organizational Expenses shall be paid by the Partnership and shall be amortized
over a period of 60 months from the formation of the Partnership.
Section 4.03 Management Fee Payable to the General Partner. In
consideration for the General Partner bearing certain expenses and providing
other services, each Limited Partner shall pay the General Partner (or any
person or entity designated by it) a quarterly management fee (the "Management
Fee") of 1.25% per annum of their Capital Accounts. Limited Partners who have
made net capital contributions to the Partnership of $5,000,000 or more will be
charged a Management Fee of 1.00% per annum of their Capital Accounts. Limited
Partners who are partners of the General Partner, or who are employees or
partners of any entities affiliated with partners of the General Partner, and
their respective family members ("Sponsor Affiliates") and certain partners who
became Limited Partners prior to November 1, 1993 may, at the discretion of the
General Partner, be charged a reduced Management Fee. The
6
Management Fee will be debited to the Capital Account of each Limited Partner,
based on the amount of the Capital Account of each Limited Partner at the end of
each quarter (adjusted for any contributions or withdrawals made during the
quarter). The Management Fee will be paid to the General Partner (or any person
or entity designated by the General Partner) within 10 days after the end of
each quarter and prorated for periods less than a full fiscal quarter.
ARTICLE V
Withdrawals from Capital Accounts and Retirements
Section 5.01 Permissible Withdrawals. A Partner may withdraw
all or any part of his Capital Account (as defined in Section 7.01) in the
manner and to the extent provided in Section 5.02.
Section 5.02 Withdrawal Procedure.
(a) A Limited Partner may withdraw all or any part of his
Capital Account as of the last day of any fiscal quarter; provided, however,
that a Limited Partner may not withdraw all or any part of his Capital Account
until one year following the date of his admission to the Partnership (or until
December 31, 1993 in the case of a Limited Partner admitted in connection with
the initial offering of the Partnership); provided further that any partial
withdrawal by a Limited Partner must be at least 25% of such Limited Partner's
Capital Account at the time of the withdrawal; and provided further that a
Limited Partner may not, without the consent of the General Partner, make a
partial withdrawal which would reduce his Capital Account to less than
$1,000,000. Any Limited Partner desiring to make a withdrawal from his Capital
Account shall, not less than 30 days before the end of such fiscal quarter, give
written notice of (i) such Limited Partner's intention to make such withdrawal
and (ii) the amount thereof or the basis on which the amount thereof is to be
determined.
(b) The General Partner may withdraw all or any part of its
Capital Account as of the end of any fiscal quarter; provided, however, no such
withdrawal may be made by the General Partner prior to December 31, 1993; and
provided, further, that if the amount so proposed to be withdrawn by the General
Partner as of any withdrawal date would reduce his Capital Account to less than
his original capital contribution, the General Partner shall, not less than 45
days before the end of such fiscal quarter, give notice to the other Partners of
(i) its intention to make such withdrawal and (ii) the amount of such withdrawal
or the manner in which the amount of such withdrawal is to be determined.
(c) A Partner withdrawing his entire Capital Account as of the
end of any fiscal quarter pursuant to this Section 5.02 shall be deemed to have
retired as of the date of such withdrawal.
7
Section 5.03 Payment on Retirement. Retirement of a Partner,
whether by (a) withdrawal of such Partner's entire Capital Account or (b) action
of the General Partner under Section 5.04, shall be subject to the provisions of
Article X.
Section 5.04 Mandatory Retirement of a Limited Partner. If the
General Partner, in its sole discretion, deems it to be in the best interests of
the Partnership or the General Partner, it may require any Limited Partner to
retire from the Partnership on the last day of any fiscal quarter on not less
than 20 days notice. A Limited Partner who dies or becomes bankrupt or
incapacitated may, in the sole discretion of the General Partner, be retired
from the Partnership at the end of the fiscal year during which such event
occurs. If the General Partner, in its sole discretion, deems it to be in the
best assets of the Partnership to do so because the continued participation of
any Limited Partner in the Partnership might cause the Partnership to violate
any law, the General Partner may on 5 days notice require the retirement of such
Limited Partner at any time, such retirement to be effective on the date
specified in such notice. A Limited Partner who is so required to retire
pursuant to this Section 5.04 shall be entitled to receive the value of his
liquidating Share (as defined in Section 10.01) computed as of the date on which
such Limited Partner's retirement shall become effective.
Section 5.05 Distributions in Cash or in Kind. All
distributions to a Partner by reason of withdrawals or retirements from the
Partnership shall be made in cash or, in the discretion of the General Partner,
in securities selected by the General Partner or partly in cash and partly in
securities selected by the General Partner.
ARTICLE VI
Term and Dissolution of Partnership
Section 6.01 Term of Partnership. Unless dissolved as
hereinafter provided, the Partnership shall continue until December 31, 1993 and
thereafter from year to year.
Section 6.02 Dissolution of Partnership. The Partnership may
be dissolved at any time by the General Partner, and thereupon the affairs of
the Partnership shall be wound up by the General Partner. The bankruptcy or
dissolution of the General Partner shall dissolve the Partnership provided,
however, that, in such event, if the Limited Partners unanimously select a
general partner who agrees to continue the Partnership, the Partnership shall
not be dissolved. In the event of the dissolution of the Partnership, the
affairs of the Partnership shall be promptly wound up by the person or persons
previously designated by the General Partner or, if the General Partner has made
no such designation, by the person or persons designated by Limited Partners
owning a majority in interest of the Capital Accounts of all the Limited
Partners as of the date of dissolution of the Partnership. Such person or
persons shall take all steps necessary or appropriate to wind up the affairs of
the Partnership as promptly as practicable thereafter. Such person or persons is
hereinafter referred to as the "Liquidator". Neither the admission of
8
Partners nor the retirement, bankruptcy, dissolution, death or incapacity of a
Limited Partner shall dissolve the Partnership.
Section 6.03 Procedure on Winding Up.
(a) Upon the winding up of the Partnership, a full accounting
of the assets and liabilities of the Partnership shall be taken and the assets
of the Partnership shall be liquidated to the extent determined by the General
Partner (or the Liquidator) and, as promptly as practicable, the cash proceeds
thereof shall be applied in the following order of priority:
(i) to the payment of all debts to non-Partners,
taxes, obligations and liabilities of the Partnership
including the expenses of liquidation;
(ii) to the payment of all debts to Partners; and
(iii) to the payment to Partners of their remaining
Capital Accounts in proportion to the amounts thereof.
(b) In the winding up of the Partnership, the General Partner
(or the Liquidator) may establish reserves for contingent liabilities of the
Partnership in an amount (including estimated expenses, if any, in connection
therewith) determined by the General Partner (or the Liquidator) and, upon the
satisfaction of such contingent liabilities, the amounts, if any, remaining in
such reserves shall be (distributed as provided in subparagraph (a)(iii) of this
Section 6.03.
(c) Distributions to a Partner pursuant to subsection (a)(iii)
may be made in installments and shall be made in cash or, in the discretion of
the General Partner (or the Liquidator), in securities selected by the General
Partner (or the Liquidator), or partly in cash and partly in securities selected
by the General Partner (or the Liquidator).
(d) Upon the winding up of the Partnership, the name of the
Partnership and its goodwill shall not be appraised, sold or otherwise
liquidated but shall remain the exclusive property of the General Partner.
(e) As promptly as possible after the completion of the
winding up of the Partnership, the General Partner (or the Liquidator) shall
cause to be prepared and forwarded to each Partner a final statement and report
of the Partnership.
(f) If the Partnership is wound up by the Liquidator, the
Liquidator shall be entitled to reasonable compensation for his services in
winding up the Partnership.
ARTICLE VII
9
Capital Accounts and Capital Contributions
Section 7.01 Capital Accounts. A Partner's "Capital Account"
as of a particular date shall consist of the following:
(a) an amount equal to such Partner's original capital
contribution;
(b) any additional capital contributions made on or before
such date; and
(c) the adjustments, if any, to such account in accordance
with the provisions of Section 7,03, Article VII and Section 1.01.
Section 7.02 Capital Contributions. Each Limited Partner must
make a minimum contribution of $1,000,000 to the Partnership, unless the General
Partner exercise its discretion to waive this minimum requirement. Contributions
to the capital of the Partnership shall be made in cash or, at the discretion of
the General Partner, in securities acceptable to the General Partner, such
securities to be valued in accordance with the provisions of Section 8.02(b).
The General Partner shall at all times maintain its Capital Account equal to at
least 1% of the total capital of the Partnership.
Section 7.03 Adjustments to Capital Accounts for Withdrawals.
The amount of withdrawals, if any, made by a Partner shall be deducted from such
Partner's Capital Account as of the date of such withdrawal.
Section 7.04 Additional Contributions to Capital. A Partner
may, with the consent of the General Partner, make additional contributions to
the capital of the Partnership on any date or dates selected by the General
Partner.
ARTICLE VIII
Allocation of Net Profits and Net Losses and
Determination of Net Profits and Net Losses
Section 8.01 Allocation of Net Profits and Net Losses.
(a) Except as otherwise provided in Section 8.03 regarding the
treatment of the "Hot Issues Account" (as defined therein), any Net Profits or
Net Losses (as defined in Section 8.02) during any Fiscal Period shall be
allocated as of the end of such Fiscal Period to the Capital Accounts of all the
Partners in the proportions which (i) each Partner's Capital Account as of the
beginning of such Fiscal Period bore to (ii) the sum of the Capital Accounts of
all the Partners as of the beginning of such Fiscal Period.
10
(b) If in any fiscal year ("Current Year") the Net Profits
allocated to a particular Limited Partner's Capital Account (except for
employees, family members or affiliates of the General Partner) pursuant to
Section 8.01 (a) exceed the Net Losses so allocated to such Limited Partner's
Capital Account, there shall be reallocated to the General Partner as of the end
of the Current Year an amount equal to 20% of such excess, provided, however,
that this reallocation will be subject to a loss carryforward provision such
that the amount so reallocated to the General Partner for the Current Year may
not exceed 20% of the excess of the Net Profits for the Current Year over the
loss carryforward amount, if any, applicable to the Current Year and, provided,
however, the amount reallocated to the General Partner shall not exceed the Net
Profits of the Partnership for the fiscal year. For purposes of the first
proviso of the preceding sentence, the loss carryforward amount applicable to
the Current Year shall be the sum of all prior year Net Losses allocated to the
Limited Partner and not subsequently offset by prior year Net Profits. The loss
carryforward amount shall be reduced proportionately to reflect any net
withdrawals made by such Limited Partner subsequent to any such prior year Net
Losses.
The total amount so reallocated pursuant to this Section 8.01
(b) shall be credited as of the end of the fiscal year to the Capital Account of
the General Partner (and to the Capital Accounts of such Limited Partners as may
from time to time be designated by the General Partner in its sole discretion);
provided that the portion, if any, of such Net Profit that has been reallocated
to the Capital Account of the General Partner pursuant to this subsection (b)
which is represented by net unrealized gains may not be withdrawn by the General
Partner from its Capital Account until such gains are realized.
Sponsor Affiliates and certain partners who became Limited
Partners prior to November 1, 1993 may be charged a lower incentive allocation.
(c) In the event of the retirement of a Partner at anytime
other than the end of a fiscal year, the allocation and/or deduction provided
for in Section 8.01 (b) shall be made with respect to such Partner for the
Fiscal Period ending on such date as though the last day of such Fiscal Period
was the last day of a fiscal year. The amount so deducted from the Capital
Accounts of all Partners who so retire shall be held in a "Suspense Account"
until the end of such fiscal year at which time the total of such amounts shall
be credited to the Capital Accounts of the General Partner up to the amount by
which the Net Profit of the Partnership for such fiscal year exceeds the amount
reallocated from the Limited Partners under Section 8.01 (b) or such fiscal
year, and the balance, if any, of such amount shall be credited to the Capital
Accounts of the Partners as of the last day of such fiscal year.
Section 8.02 Determination of Net Profits and Net Losses. "Net
Profits" or "Net Losses" of the Partnership shall mean the net operating profits
or net operating losses, as the case may be, for a Fiscal Period determined on
the accrual basis of accounting in accordance with generally accepted accounting
principles consistently applied and further in accordance with the following:
11
(a) Net Profits and Net Losses shall include realized and
unrealized profits and losses with respect to all securities positions.
In such computation, realized and unrealized profits and losses shall
mean for each position held in a security during any Fiscal Period, the
realized or unrealized appreciation or the realized or unrelated
depreciation, as the case may be, with respect to such position,
determined by comparing the net proceeds from the closing or deemed
closing of such position or the market value of such position at the
end of such Fiscal Period with (i) the cost of such position if
established during such Fiscal Period or (ii) if such position was
established during a prior Fiscal Period, the market value of such
position at the end of the last preceding Fiscal Period.
(b) The market value of positions in securities shall be as
follows: securities that are listed on the consolidated tape and are
freely transferable shall be valued at their last sales price on the
consolidated tape on the date of determination or, if no sales occurred
on such day, at the "bid" price on the consolidated tape at the close
of business on such day and if sold short at the "asked" price at the
close of business on such day. Securities traded over the counter which
are freely transferable shall be valued at the last sales price on the
date of determination, or, if no sales occurred on such day, at the
"bid" price at the close of business on such day and if sold short at
the "asked" price at the close of business on such day. Notwithstanding
the foregoing, if the securities to be valued constitute a block which,
in the judgment of the General Partner, could not be liquidated in a
reasonable time without depressing the market, such block shall then be
valued by the General Partner but not at a unit value in excess of the
quoted market price for such security. All other assets of the
Partnership shall be valued in the manner determined by the General
Partner.
(c) There shall be deducted in computing Net Profits and Net
Losses estimated expenses, including accounting and legal services in
respect of the particular Fiscal Period (whether performed therein or
to be performed thereafter), and such reserves for contingent
liabilities of the Partnership, including related expenses, if any, in
connection therewith, as the General Partner shall determine. There
shall be separately charged to each Limited Partner, the fee described
in Section 4.03 to the General Partner.
(d) In computing the Net Profits and Net Losses of the
Partnership, the Organizational Expenses of the Partnership incurred
pursuant to Section 4.02 shall be amortized over a period of 60 months
from the formation of the Partnership and the amortizable portion of
the Organizational Expenses shall be deducted in computing Net Profits
and Net Losses.
Section 8.03 Hot Issues. In the event the General Partner
decides to invest in securities which are the subject of a public distribution
and which the General Partner, in its sole discretion, believes may become a
"hot issue" as that term is defined in Article 111, Section 1 of the Rules of
Fair Practice of the National Association of Securities Dealers, Inc. (the
"Association"), such investment shall be made in accordance with the following
provisions:
12
(a) any such investment made in a particular Fiscal Period
shall be made in a special account (the "Hot Issues Account");
(b) only those Partners who do not fall within the
proscription of Article 111, Section 1 of said Rules of Fair Practice
("Unrestricted Partners") shall have any beneficial interest in the Hot
Issues Account;
(c) each Unrestricted Partner shall have a beneficial interest
in the Hot Issues Account for any Fiscal Period in the proportion which
(i) such Unrestricted Partner's Capital Account as of the beginning of
the Fiscal Period bore to (ii) the sum of the Capital Accounts of all
Unrestricted Partners as of the beginning of such Fiscal Period;
(d) funds required to make a particular investment shall be
referred to the Hot Issues Account from the regular account of the
Partnership; securities involved in the public distribution shall be
purchased in the Hot Issues Account, held in the Hot Issues Account and
eventually sold from the Hot Issues Account or transferred to the
regular account at fair market value as of the day of transfer as
determined by the General Partner with such transfer being treated as a
sale; if such securities are sold from the Hot Issues Account, the
proceeds of the sale shall be transferred from the Hot Issues Account
to the regular account of the Partnership;
(e) as of the last day of each Fiscal Period in which a
particular investment or investments are held in the Hot Issues
Account: (A) interest shall be debited to the Capital Accounts of the
Unrestricted Partners in accordance with their beneficial interests in
the Hot Issues Account at the interest rate being paid by the
Partnership from time to time for borrowed funds during the period in
that Fiscal Period that funds from the regular account have been held
in or made available to the particular Hot issues Account or, if no
such funds are being borrowed during such period, the interest rate
that the General Partner determines would have been paid if funds had
been borrowed by the Partnership during such period and such interest
shall be credited to the Capital Accounts of all the Partners, both
General and Limited, in the proportions which (i) each Partner's
Capital Account as of the beginning of such Fiscal Period bore to (ii)
the sum of the Capital Accounts of all Partners as of the beginning of
such Fiscal Period and (B) any Net Profits or Net Losses during such
Fiscal Period with respect to the Hot Issues Account shall be allocated
to the Capital Accounts of the Unrestricted Partners in accordance with
their beneficial interests in the Hot Issues Account during such Fiscal
Period; and
(f) the determination of the General Partner as to whether a
particular Partner falls within the proscription of Article 111,
Section 1 of said Rules of Fair Practice shall be final.
Section 8.04 Allocation of Prior Fiscal Period Items. Anything
herein to the contrary notwithstanding, any item of income, gain, loss or
deduction for a Fiscal Period
13
attributable to any Partnership matter or transaction occurring during a prior
Fiscal Period (such items of income, gain, loss or deduction are referred to
herein as "Prior Fiscal Period items") which shall exceed the lesser of (a) $
100,000 or (b) one percent of the Capital Accounts of all Partners as of the
beginning of the current Fiscal Period may, in the discretion of the General
Partner, be allocated among the Partners (including persons who have ceased to
be Partners) in proportion to their Capital Accounts as of the beginning of such
prior Fiscal Period. In the case of a person who is a Partner during the Current
Fiscal Period, the Prior Fiscal Period Items shall be considered an item of Net
Profit or Net Loss for the Current Fiscal Period for purposes of Section 8-01
(b). In the case of a person who has ceased to be a Partner, the Prior Fiscal
Period Items shall be considered an Item of Net Profit or Net Loss in the last
fiscal period in which such person was a Partner for purposes of computing the
allocation of such Prior Fiscal Period Items between the person who ceased to be
a Partner and the General Partner.
ARTICLE IX
Allocation of Income For Tax Purposes
Section 9.01 Ordinary Deductions and Ordinary Income. For
Federal income tax purposes, all items of deduction other than realized capital
losses, and all items of income other than capital gains, shall be allocated, as
nearly as is practicable, in accordance with the manner in which such items of
deduction or income affected the amounts which were either deducted from or
added to the Capital Accounts of the Partners.
Section 9.02 Capital Gains and Losses. For Federal income tax
purposes, capital gains and capital losses (short-term and long-term, as the
case may be) recognized by the Partnership shall be allocated, as nearly as is
practicable, in accordance with the manner in which the aggregate of the
increase or decrease in the value of the securities positions giving rise to
such gains or losses was added to or deducted from the Capital Accounts of the
Partners.
Section 9.03 Allocation of Capital Gains to Retiring Partners.
Notwithstanding Section 9.02 above, in the event a Partner withdraws all of his
Capital Account from the Partnership, the General Partner in its sole discretion
may make a special allocation to said Partner for Federal income tax purposes in
the last year that such Partner participates in the Partnership's operations of
the net capital gains recognized by the Partnership in such a manner as will
reduce the amount, if any, by which such Partner's Liquidating Share (as defined
in Section 10.01 ) exceeds his Federal income tax basis in his interest in the
Partnership before such allocation. For example, if a Partner retires at a time
when his Capital Account reflects significant unrealized gains which should be
appropriately taxed to such retiring Partner rather than the remaining Partners
in the Partnership, the General Partner may, in its sole discretion, employ the
provisions of this Section 9.03 in order to fairly apportion the realized gains
for the fiscal year such Partner retires between such retiring Partner and the
remaining Partners.
14
ARTICLE X
Payments to and by a Person
Who Has Ceased to be a Partner
Section 10.01 Payments on Retirement, Death, Bankruptcy,
Insanity or Disability of any Partner. Within thirty days after (a) the date of
retirement of a Partner in accordance with the terms of this Agreement or (b) in
the discretion of the General Partner, the day of the fiscal year during which a
Partner died or became bankrupt or legally incapacitated, there shall be paid or
distributed to such Partner or to the legal representative of such Partner, an
amount in cash or, as determined by the General Partner, securities selected by
the General Partner or in cash and securities selected by the General Partner,
equal in value to not less than 95% of the estimated amount of the Liquidating
Share (as hereinafter defined) of such Partner. Promptly after the General
Partner has determined the Capital Accounts of the Partners as of such date and,
if such date is the last day of a fiscal year and the independent public
accountants have completed its examination thereof required by Section 11.03,
the Partnership shall pay to such Partner or its representative, in cash or such
securities or cash and such securities, as determined by the General Partner,
the amount of the excess, if any, of the Liquidating Share of such Partner over
the amount so paid, or such Partner or representative shall pay to the
Partnership the amount of the excess, if any, of the amount so paid over such
Liquidating Share, in each case together with interest thereon, to the extent
permitted by applicable law, from the applicable date referred to in clauses (a)
or (b) above to the date of the payment at an annual rate equal to 1/2 of 1%
above the brokers' call rate charged by the Partnership's principal broker. The
term "Liquidating Share", when used with respect to any retiring, deceased,
bankrupt or legally incapacitated Partner, shall mean the Capital Account of
such Partner on the date in question after giving effect to all adjustments
thereto.
Section 10.02 Reserve for Liability and Payments of Prior
Fiscal Period Items by Person Who Has Ceased to be a Partner.
(a) The right of any retired, deceased, bankrupt or legally
incapacitated Partner (or his legal representative) to have distributed
the Liquidating Share of such Partner shall in all instances be subject
to retention by the Partnership of a reserve, in such amount as shall
be determined by the General Partner, in its sole discretion, for
Partnership liabilities and for other contingencies. Commencing on the
applicable date referred to in clauses (a) and (b) of Section 10.01,
the reserve shall bear interest, payable on each December 31 after such
date, at an annual rate equal to 1/2 of 1% above the brokers' call rate
charged by the Partnership's principal broker. Upon the determination
of the General Partner that such reserve (or portion thereof) is no
longer required there shall be distributed to such Partner his
proportionate share of the reserve which is no longer required together
with interest thereon.
(b) A person who has ceased to be a Partner will be liable for
his proportionate share of Prior Fiscal Period Items as provided in
Section 804 in excess of
15
his share of the reserve established with respect to such person
pursuant to Section 10.02(a) and such person shall pay his share of
such amounts promptly on demand, but the amount to be paid shall not be
in excess of his Capital Account at the time such Prior Fiscal Period
Item arose.
ARTICLE XI
Miscellaneous Provisions
Section 11.01 Withholding Taxes. Any taxes, fees or other
charges the Partnership is required to withhold under applicable law with
respect to any Partner shall be withheld by the Partnership (and paid to the
appropriate governmental authorities) and shall be deducted from the Capital
Account of such Partner as of the last day of the Fiscal Period with respect to
which such amount is required to be withheld.
Section 11.02 Maintaining Books of Account. Proper and
complete books of account shall be kept at all times and shall be open to
inspection by any Partner or their accredited representative at reasonable times
during office hours.
Section 11.03 Audit of Books. The books of account and records
of the Partnership shall be audited as of the end of each fiscal year by
independent certified public accountants designated from time to time by the
General Partner.
Section 11.04 Amendment of Agreement. This Agreement may be
amended by the General Partner in any manner that does not adversely affect the
rights of any Limited Partner. This Agreement may also be amended by action
taken by both (a) the General Partner and (b) the Limited Partners owning a
majority in interest of the Capital Accounts owned by the Limited Partners at
the time of the amendment, provided that such amendment does not discriminate
among the Limited Partners.
Section 11.05 Notices. All notices provided for under this
Agreement shall be in writing and shall be deemed to have been duly given as of
the date of postmark if sent by first class mail to such Partner's address as
set forth in the schedule in the files of the Partnership as of the date of such
notice.
Section 11.06 Reports to Partners. The Partnership shall
furnish to the Partners reports with respect to the Partnership's activities
after the end of each fiscal quarter and audited financial reports of the
Partnership prepared by the Partnership's independent certified accountants
promptly after the end of each fiscal year. In addition, as promptly as
practicable after the end of each fiscal year, the Partnership shall send to
each Partner a report indicating the amounts representing their respective share
of net long-term capital gain or loss, net short-term capital gain or loss,
operating profit or loss and dividends for purposes of reporting such amounts
for income tax purposes.
16
Section 11.07 Binding Effect of Agreement. This Agreement,
including Section 11.09 hereof, shall be binding on the successors, assigns and
the legal representatives of each of the Partners.
Section 11.08 Counterparts. This Agreement may be executed in
more than one counterpart with the same effect as if the Partners executing the
several counterparts had all executed one document.
Section 11.09 Designation of Attorney. Each of the undersigned
for himself or herself hereby irrevocably constitutes and appoints Samuel D.
lsaly and Viren Mehta his true and lawful attorneys in his name, place and
stead, to make, execute, sign and file:
(a) the Certificate of Limited Partnership and any amendment
thereto or termination thereof which is or may be required by the laws
of the State of Delaware;
(b) any certificate required by reason of the dissolution of
the Partnership; and
(c) any application, certificate, report or similar instrument
or document required to be submitted by or on behalf of the Partnership
to any governmental or administrative agency or body, to any securities
exchange, board of trade, clearing corporation or association or to any
self-regulatory organization or trade association.
Said attorneys are not by this Section 11.09 granted any
authority on behalf of the undersigned to amend this Agreement in any way that
adversely affects a Limited Partner.
17
IN WITNESS WHEREOF, the undersigned has hereunto signed this
Agreement as of the date first written above.
General Partner: Limited Partner:
CADUCEUS MANAGEMENT PARTNERS, /s/ Samuel D. Isaly
L.P. ----------------------------------
Signature of Limited Partner
By: Caduceus Capital Management, Inc. Samuel D. Isaly
General Partner ----------------------------------
Type in Name of Limited Partner
By: /s/ Samuel D. Isaly Date of Signature: 12/31/92
-------------------------------- ----------
/s/ Nicholas G. Palevsky /s/ Viren Mehta
- ------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
Nicholas G. Palevsky Viren Mehta
- ------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 6/29/94 Date of Signature: 4/30/93
----------------- ----------
18
/s/ David Martin /s/ Sven H. Borho
- ------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
Croesus Investment Partners VI Sven H. Borho
- ------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 4/3/95 Date of Signature: 4/30/95
----------------- ------------
/s/ George Hibon /s/ Stephen E. Elliott
- ------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
George Hibon Stephen E. Elliott
- ------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 6/28/96 Date of Signature: 11/4/96
----------------- ------------
/s/ Steven A. Lisi /s/ Michael B. Sheffery
- ------------------------------------- ----------------------------------
Signature of Limited Partner Signature of Limited Partner
Steveb A. Lisi Michael B. Sheffery
- ------------------------------------- ----------------------------------
Type in Name of Limited Partner Type in Name of Limited Partner
Date of Signature: 11/4/96 Date of Signature: 11/4/96
----------------- ------------
19
/s/ Jane C. Brissette
- -------------------------------------
Signature of Limited Partner
The Pooled Employee Trust Funds of Carolina First Bank
- ------------------------------------------------------
Type in Name of Limited Partner
Date of Signature: 10/31/96
-----------------
/s/ Carl L. Gordon
- ----------------------------------
Signature of Limited Partner
Carl L. Gordon
- ----------------------------------
Type in Name of Limited Partner
Date of Signature: 11/1/96
------------
/s/ Edmund A. Debler
- ----------------------------------
Signature of Limited Partner
Edmund A. Debler
- ----------------------------------
Type in Name of Limited Partner
Date of Signature: 4/30/96
------------
Exhibit C
- --------------------------------------------------------------------------------
CADUCEUS MANAGEMENT PARTNERS L.P.
LIMITED PARTNERSHIP AGREEMENT
Dated as of July 1, 1994
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.1. Definitions............................................ 1
SECTION l.2. Terms Generally........................................ 7
ARTICLE II
General Provisions
SECTION 2.1. Partners............................................... 7
SECTION 2.2. Name................................................... 7
SECTION 2.3. Liability of General and Limited Partners.............. 8
SECTION 2.4. Term................................................... 8
SECTION 2.5. Purpose; Powers........................................ 8
SECTION 2.6. Place of Business...................................... 10
ARTICLE III
Management and Operation of the Partnership
SECTION 3.1. Management............................................. 10
SECTION 3.2. Partner Consent Matters................................ 11
SECTION 3.3. Certain Duties and Obligations of the Partners......... 13
SECTION 3.4. Restrictions on Authority of the General Partner....... 14
ARTICLE IV
Scope of Partnership
SECTION 4.1. Other Activities....................................... 15
SECTION 4.2. Early Termination...................................... 15
SECTION 4.3. Withdrawal of Partners................................. 16
-ii-
Page
SECTION 5.1. Capital Contributions.................................. 18
SECTION 5.2. Capital Accounts....................................... 18
SECTION 5.3. Allocations............................................ 19
SECTION 5.4. Distributions.......................................... 20
SECTION 5.5. Restricted Payments.................................... 20
SECTION 5.6. Expenses............................................... 20
ARTICLE VI
Books and Reports; Tax Matters
SECTION 6.1. General Accounting Matters............................. 21
SECTION 6.2. Certain Tax Matters.................................... 22
ARTICLE VII
Dissolution
SECTION 7.1. Dissolution............................................ 23
SECTION 7.2. Winding-up............................................. 23
SECTION 7.3. Final Distribution..................................... 23
ARTICLE VIII
Transfer of Partners' Interests; Sale
SECTION 8.1. Certain Provisions Relating to Sale of the Partnership or
Partnership Interests.................................. 24
SECTION 8.2. Other Transfer Provisions.............................. 27
ARTICLE IX
Miscellaneous
SECTION 9.1. Arbitration............................................ 28
SECTION 9.2. Ownership and Use of Names............................. 28
SECTION 9.3. Governing Law.......................................... 29
SECTION 9.4. Successors and Assigns................................. 29
SECTION 9.5. Access; Confidentiality................................ 29
SECTION 9.6. Notices................................................ 29
SECTION 9.7. Counterparts........................................... 29
SECTION 9.8. Entire Agreement....................................... 30
SECTION 9.9. Amendments............................................. 30
SECTION 9.10. Blackstone Investment.................................. 30
-iii-
Page
SECTION 9.11. Section Titles......................................... 30
SECTION 9.12. Representations and Warranties......................... 30
SCHEDULE A PARTNERS OF THE PARTNERSHIP
CADUCEUS MANAGEMENT PARTNERS L.P.
LIMITED PARTNERSHIP AGREEMENT, dated as of November 1, 1993,
by and among Caduceus Capital Management, Inc., a Delaware corporation ("CCM"),
as general partner, and Blackstone Alternative Asset Management L.P., a Delaware
limited partnership ("Blackstone"), Samuel D. Isaly and Viren Mehta, as limited
partners (together, the "Limited Partners").
Preliminary Statement
The parties hereto are executing this Limited Partnership
Agreement for the purpose of forming a limited partnership pursuant to the
provisions of the Partnership Act (as defined herein). Accordingly, in
consideration of the mutual promises and agreements herein made and intending to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Definitions. Unless the context otherwise
requires, the following terms shall have the following meanings for purposes of
this Agreement:
"Affiliate" with respect to any Person means any other Person
who controls, is controlled by or is under common control with such
Person.
"Agreement" means this Limited Partnership Agreement of the
Partnership, as it may be amended, supplemented, modified or restated
from time to time.
"Asset Management Business" means the business of serving as
the general partner of any investment vehicle, including the Private
Fund, or serving as the investment manager or investment adviser of
Separate Accounts or other similar capacity for investors sourced in
the United States, in each case specializing in buying and selling
Securities in the pharmaceutical, health care and biotechnology
industries. Notwithstanding the foregoing, for purposes hereof the term
"Asset Management Business" shall specifically not include the
activities of the (i) Offshore Fund or (ii) Public Fund; provided, that
the Partners acknowledge their intent to enter into separate business
arrangements (directly or indirectly through Affiliates) relating to
the Public Fund that satisfy applicable law and regulation.
"Blackstone Change of Control" means that none of Sheldon S.
Gordon, Michael F. Holland or Mark J. Kenyon continues to be an officer
of Blackstone.
"Blackstone Entity" means Blackstone and any Affiliate of
Blackstone at any time in question.
2
"Blackstone Expenses" means (i) all costs and expenses (other
than Organizational Expenses and Maintenance Expenses) incurred by
Blackstone and its Affiliates in connection with the performance of
their obligations and responsibilities under this Agreement, including
costs and expenses of travel, staff, salary and office overhead.
"Blackstone Partner" means any Partner which is a Blackstone
Entity.
"Business Day" shall mean any day which is not a Saturday,
Sunday or a day on which the commercial banks in New York are required
or authorized by applicable law to close.
"Buy/Sell Closing" has the meaning set forth in Section
8.1(c).
"Buy/Sell Closing Date" has the meaning set forth in Section
8.1(c).
"Buy/Sell Option Period" has the meaning set forth in Section
8.1(c).
"Buy/Sell Price" has the meaning set forth in Section 8.1(c).
"Buyer" has the meaning set forth in Section 8.1(c).
"Capital Account" has the meaning set forth in Section 5.2.
"Carrying Value" shall mean, with respect to any Partnership
asset, the asset's adjusted basis for U.S. federal income tax purposes,
except that the Carrying Values of all Partnership assets shall be
adjusted to equal their respective fair market values, in accordance
with the rules set forth in Regulations Section 1.704-1(b)(2)(iv)(f),
except as otherwise provided herein, as of: (a) the date of the
acquisition of any additional Partnership interest by any new or
existing Partner in exchange for more than a de minimis Capital
Contribution, other than pursuant to the initial formation of the
Partnership; (b) the date of the distribution of more than a de minimis
amount of Partnership property to a Partner; (c) the date a Partnership
interest is relinquished to the Partnership or (d) the date of the
termination of the Partnership under Section 708(b)(i)(B) of the Code;
provided, however, that adjustments pursuant to clauses (a), (b) and
(c) above shall be made only if the General Partner determines that
such adjustments are necessary or appropriate to reflect the relative
economic interests of the Partners. The Carrying Value of any
Partnership asset distributed to any Partner shall be adjusted
immediately prior to such distribution to equal its fair market value.
Depreciation shall be calculated by reference to Carrying Value,
instead of tax basis once Carrying Value differs from tax basis.
"Cause" means the occurrence or existence of any of the
following with respect to a Partner: (i) a material breach of the
Partner's obligations under this
3
Agreement; (ii) any act of fraud, misappropriation, dishonesty,
embezzlement or similar conduct against the Partnership; or (iii)
conviction of a felony or any crime involving moral turpitude.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute. Any reference herein to a
particular provision of the Code shall mean, where appropriate, the
corresponding provision in any successor statute.
"Confidential Information" has the meaning set forth in
Section 9.5.
"Deficient Performance" means (i) with respect to the General
Partner, the failure of the Private Fund to achieve a gross return not
less than the Mehta and Isaly Index for the Performance Period or, if
that index is not available, any other similar industry index selected
upon a Partner Consent, and (ii) with respect to Blackstone, the
failure of the Partnership to obtain Funds Under Management of an
amount greater than or equal to $50 million at the end of such period,
which for this purpose shall include investments made through the
Private Fund, other similar vehicles in which the Partnership serves as
general partner or investment adviser (excluding the Offshore Fund),
the Public Fund and the Separate Accounts (whether or not such assets
were invested prior to the formation of the Partnership).
"Disabling Event" means any event which would cause the
General Partner to cease to be the general partner of the Partnership
pursuant to Section 17-402 of the Partnership Act other than as
permitted by Section 8.1.
"Fiscal Period" has the meaning set forth in Section 5.4.
"Fiscal Year" means the one-year period ending on December 31
of each year.
"Funds Under Management" with respect to any Person means the
funds under management by such Person as part of the Asset Management
Business; provided, that (i) Funds Under Management shall include only
actual funds contributed by a client rather than funds under management
after giving effect to account leverage and (ii) Funds Under Management
shall not include any increase or decrease due to trading profits or
losses.
"General Partner" means CCM and any Person admitted to the
Partnership as an additional or substitute general partner of the
Partnership in accordance with the provisions of this Agreement, until
such time as such Person ceases to be a general partner of the
Partnership as provided herein.
"Individual Mehta and Isaly Partner" means any Mehta and Isaly
Partner that is an individual person.
4
"Interest" has the meaning set forth in 8.1(b).
"Limited Partner" means Blackstone, Samuel D. Isaly, Viren
Mehta and any Person admitted to the Partnership as an additional or
substituted limited partner of the Partnership in accordance with the
provisions of this Agreement.
"Liquidator" has the meaning set forth in Section 7.2.
"Maintenance Expenses" means (i) the marginal increases in
fees and expenses of statutory or registered agents and offices of the
Partnership attributable to the creation of the Partnership, (ii) the
fees and expenses incurred in connection with the maintenance of the
Partnership's books and records attributable to the creation of the
Partnership and the preparation of the Partnership's tax returns and
any tax audits or disputes arising therefrom and (iii) any other
maintenance expenses of the Partnership approved by a written Partner
Consent. For purposes hereof, "Maintenance Expenses" shall also include
the amount of New York City unincorporated business tax ("UBT") paid by
the Partnership; provided, that if the Partnership receives a credit
against such payment of UBT or the amount of UBT payable by the
Partnership is otherwise reduced as a result of the payment of UBT on
income derived from the Partnership by a direct or indirect owner of a
Mehta and Isaly Partner or a Blackstone Partner, as the case may be,
then the expense relating to the reduction in the amount of UBT paid by
the Partnership shall not be allocated to the Mehta and Isaly Partners
or the Blackstone Partners, as the case may be, but shall be specially
allocated to the Blackstone Partners or the Mehta and Isaly Partners,
as the case may be, as provided in Section 5.3(b).
"Mehta and Isaly Entity" means any Affiliate of Samuel D.
Isaly or Viren Mehta (and each of them in their individual capacity).
"Mehta and Isaly Expenses" means all costs and expenses (other
than Organizational Expenses and Maintenance Expenses) incurred by the
General Partner and its Affiliates in connection with the performance
of its obligations and responsibilities under this Agreement, including
costs and expenses of travel, staff, salary and office overhead.
"Mehta and Isaly Group" means collectively, CCM, Samuel D.
Isaly and Viren Mehta and any permitted assigns of such Partners.
"Mehta and Isaly Index" means The Pharmaceutical and Health
Care Equity Securities Index as determined by Mehta and Isaly, a New
York general partnership (or any successor entity), and published
monthly in The Mehta and Isaly Pharmaceutical Portfolio Recommendations
(or any successor publication).
5
"Mehta and Isaly Partner" means any Partner which is a member
of the Mehta and Isaly Group.
"Net Income (Loss)" shall mean for each Fiscal Year or other
period, the taxable income or loss of the Partnership, or particular
items thereof, determined in accordance with the accounting method used
by the Partnership for U.S. federal income tax purposes with the
following adjustments: (i) all items of income, gain, loss or deduction
allocated pursuant to Section 5.3(c) shall not be taken into account in
computing such taxable income or loss; (ii) any income of the
Partnership that is exempt from U.S. federal income taxation and not
otherwise taken into account in computing Net Income and Net Loss shall
be added to such taxable income or loss; (iii) if the Carrying Value of
any asset differs from its adjusted tax basis for U.S. federal income
tax purposes, any depreciation, amortization or gain resulting from a
disposition of such asset shall be calculated with reference to such
Carrying Value; (iv) upon an adjustment to the Carrying Value of any
asset, pursuant to the definition of Carrying Value, the amount of the
adjustment shall be included as gain or loss in computing such taxable
income or loss; (v) except for items in (i) above, any expenditures of
the Partnership not deductible in computing taxable income or loss, not
properly capitalizable and not otherwise taken into account in
computing Net Income and Net Loss pursuant to this definition shall be
treated as deductible items and (vi) items of loss, deduction or
expense constituting Blackstone Expenses or Mehta and Isaly Expenses
shall be excluded from Net Income (Loss).
"Offeree" has the meaning set forth in Section 8.1(c).
"Offered Interest" has the meaning set forth in Section
8.1(b).
"Offering Notice" has the meaning set forth in Section 8.1(c).
"Offeror" has the meaning set forth in Section 8.1(c).
"Offshore Funds" means PHARMA w/HEALTH, a mutual investment
fund incorporated under the laws of the Grand-Duchy of Luxembourg.
"Organizational Expenses" means all costs and expenses
pertaining to the organization of the Partnership and the registration,
qualification or exemption of the Partnership and, to the extent
necessary for the operation of the Partnership as contemplated hereby,
the Partners or their Affiliates, under any applicable federal, state
or foreign laws, including fees of counsel to the Partnership and the
Partners.
"Partner" means any Person who is a partner of the
Partnership, whether a General Partner or a Limited Partner.
6
"Partner Consent" means the approval of an item or matter as
provided in Section 3.2 by both the General Partner and Blackstone.
"Partnership" means Caduceus Management Partners L.P., a
Delaware limited partnership.
"Partnership Act" means the Delaware Revised Uniform Limited
Partnership Act, 6 Del. C. ss.ss. 17-101, et seq., as it may be amended
from time to time, and any successor to such statute.
"Partnership Business" means (a) the Asset Management Business
and (b) any other related business to the extent such business is
determined by a written Partner Consent to be within the purpose and
scope of the Partnership; provided, however, that, except as may
otherwise be agreed upon by a written Partner Consent, Partnership
Business shall not include any business that would otherwise constitute
Partnership Business conducted by Blackstone and its Affiliates, on the
one hand, or the General Partner and its Affiliates, on the other hand,
if such Partner has proposed in writing that such business be conducted
by the Partnership but the other Partner has not consented in writing
to such business being conducted by the Partnership.
"Performance Period" means the two-year period beginning on
July 1, 1994 and ending on and including June 30, 1996.
"Person" means any individual, partnership, joint venture,
corporation, unincorporated organization or association, trust
(including the trustees thereof in their capacity as such) or other
entity.
"Private Fund" means Caduceus Capital, L.P., a. Delaware
limited partnership.
"Profit Sharing Percentage" means the percentage interest of a
Partner in Net Income (Loss) set forth on Schedule A hereto as amended
from time to time in accordance herewith.
"Public Fund" means Medical Research Investment Fund, Inc., a
Maryland corporation and an investment company registered under the
Investment Company Act of 1940, as amended.
"Securities" has the meaning set forth in Section 2.5(b)(vi).
"Seller" has the meaning set forth in Section 8.1(c).
7
"Separate Accounts" means segregated accounts managed by the
Partnership in which the Partnership is granted authority to manage the
assets of such account on a discretionary basis.
"Special Limited Partner" shall mean any Partner that has
withdrawn (or is deemed to have withdrawn) from the Partnership and has
been readmitted upon the terms and conditions provided herein.
"Tax Matters Partner" has the meaning set forth in Section
6.2(b).
"Transfer" has the meaning set forth in Section 8.1(a).
"Transferor" has the meaning set forth in Section 8.1(b).
SECTION l.2. Terms Generally. The definitions in Section 1.1
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
ARTICLE II
General Provisions
SECTION 2.1. Partners. Schedule A attached hereto contains the
name, address and Profit Sharing Percentage of each Partner as of the date of
this Agreement. Schedule A shall be revised by the General Partner from time to
time to reflect the admission or withdrawal of a Partner or the transfer or
assignment of interests in the Partnership in accordance with the terms of this
Agreement and other modifications to or changes in the information set forth
therein.
SECTION 2.2. Name. Subject to Section 9.2, the Partnership
shall conduct its activities under the name of Caduceus Management Partners L.P.
The General Partner shall have the power at any time to change the name of the
Partnership if such name change has been approved in writing by a Partner
Consent; provided that the name shall always contain the words "Limited
Partnership" or the letters "L.P." The General Partner shall give prompt notice
of any such change to each Partner.
SECTION 2.3. Liability of General and Limited Partners. (a)
The General Partner shall have unlimited liability for the satisfaction and
discharge of all losses, liabilities and expenses of the Partnership.
8
(b) In no event shall any Limited Partner or former Limited
Partner (i) be obligated to make any capital contribution to the Partnership
except pursuant to Section 5.1, (ii) have any liability in excess of such
Limited Partner's obligation to make capital contributions pursuant to Section
5.1 and other payments provided for in this Agreement or (iii) have any
liability to return distributions received by such Limited Partner from the
Partnership except as required by this Agreement or applicable law.
SECTION 2.4. Term. The existence of the Partnership shall
continue until November 1, 2023 unless and until the Partnership is earlier
dissolved, wound up and terminated in accordance with Article VII.
SECTION 2.5. Purpose; Powers. (a) The purpose of the
Partnership shall be, directly or indirectly through subsidiaries or Affiliates,
(i) to engage in the Asset Management Business and receive revenues in
connection therewith as contemplated hereby, (ii) to engage in any other
Partnership Business to the extent agreed upon by a written Partner Consent and
(iii) to do all things necessary or incidental thereto.
(b) In furtherance of its purposes, the Partnership shall have
all powers necessary, suitable or convenient for the accomplishment of its
purposes, alone or with others, including the following:
(i) to render asset management services for the account of
others in connection with the Partnership Business;
(ii) to act as a general partner for the Private Fund;
(iii) to act as an investment advisor or investment manager
for Separate Accounts;
(iv) to invest and reinvest the cash assets of the Partnership
in money market or other short-term investments;
(v) to purchase, hold, receive, mortgage, pledge, transfer,
exchange, otherwise dispose of, grant options with respect to and
otherwise deal in and exercise all rights, powers, privileges and other
incidents of ownership or possession with respect to all Securities and
other property;
(vi) to buy and sell equity and equity-related securities in
the pharmaceutical, health care and biotechnology industries, including
stocks, convertible securities, warrants and options to buy and sell
securities, as well as bonds, debentures and money market obligations,
repurchase and reverse repurchase agreements, foreign securities,
commodities, futures and forward contracts or options on or derivatives
with respect to any of the foregoing ("Securities").
9
(vii) to engage in any other lawful transactions in Securities
which the General Partner from time to time determines to be in the
best interest of the clients of the Partnership Business;
(viii) to have and maintain one or more offices within or
without the State of Delaware, and in connection therewith, to rent or
acquire office space, engage personnel and compensate them and do such
other acts and things as may be advisable or necessary in connection
with the maintenance of such office or offices;
(ix) to open, maintain and close accounts, including margin
accounts, with brokers;
(x) to open, maintain and close bank accounts and draw checks
and other orders for the payment of moneys;
(xi) to engage employees (with such titles and delegated
responsibilities as may be determined), accountants, auditors,
custodians, investment advisers, attorneys and any and all other agents
and assistants, both professional and nonprofessional, and to
compensate them as may be necessary or advisable;
(xii) to form or cause to be formed and to own the stock of
one or more corporations, whether foreign or domestic, and to form or
cause to be formed and to participate in partnerships and joint
ventures, whether foreign or domestic;
(xiii) to enter into, make and perform all contracts,
agreements and other undertakings as may be necessary or advisable or
incident to carrying out its purposes;
(xiv) to sue, prosecute, settle or compromise all claims
against third parties, to compromise, settle or accept judgment of
claims against the Partnership, and to execute all documents and make
all representations, admissions and waivers in connection therewith;
(xv) to distribute, subject to the terms of this Agreement, at
any time and from time to time to Partners cash or investments or other
property of the Partnership, or any combination thereof; and
(xvi) to take such other actions necessary or incidental
thereto as may be permitted under applicable law.
SECTION 2.6. Place of Business. The Partnership shall maintain
a registered office at The Corporation Trust Company, Corporation Trust Center,
1209 Orange Street, Wilmington, New Castle County, Delaware 19801, or such other
office as is approved by a Partner Consent. The Partnership shall maintain an
office and principal place of business at
10
41 Madison Avenue, 40th Floor, New York, New York, 10010 or at such other place
as may from time to time be determined by a written Partner Consent; the General
Partner shall give notice to the other Partners of any change in the
Partnership's principal place of business. The name and address of the
Partnership's registered agent as of the date of this Agreement is The
Corporation Trust Company, Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, Delaware 19801.
ARTICLE III
Management and Operation of the Partnership
SECTION 3.1. Management. (a) Except as otherwise provided
herein, (a) the management, control and operation of the Partnership and the
formulation and execution of business and investment policy shall be vested
exclusively in the General Partner and (b) the General Partner shall exercise
all powers necessary and convenient for the purposes of the Partnership,
including those enumerated in Section 2.5, on behalf and in the name of the
Partnership.
(b) Except as otherwise provided herein, Limited Partners as
such shall have no right to, and shall not, take part in the management or
affairs of the Partnership, nor in any event shall any Limited Partner have the
power to act for or bind the Partnership. The exercise by any Limited Partner of
any right or power conferred herein shall not be construed to constitute
participation by such Limited Partner in the control of the business of the
Partnership so as to make such Limited Partner liable as a general partner for
the debts and obligations of the Partnership for purposes of the Partnership
Act.
SECTION 3.2. Partner Consent Matters. (a) Subject to Section
4.3(i), the following Partnership matters shall require a written Partner
Consent:
(i) the dissolution, termination and winding up of the
Partnership pursuant to Section 7.1;
(ii) the sale, exchange, lease, mortgage, assignment, pledge
or other transfer of, or granting of a security interest in, any
significant asset or assets of the Partnership, or the merger or
consolidation of the Partnership with or into any other business entity
pursuant to Section 17-211 of the Partnership Act;
(iii) the incurrence, renewal, refinancing or payment or other
discharge of indebtedness for borrowed money by the Partnership;
(iv) a change in the business of the Partnership to include
any business other than the Asset Management Business;
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(v) an amendment to this Agreement, including a modification
of the Profit Sharing Percentages of any Partner other than as a result
of a transfer of a Partnership interest in accordance with this
Agreement, or an amendment to the Certificate of Limited Partnership of
the Partnership;
(vi) except as required by Section 5.1, the amount and timing
of any capital contributions to the Partnership pursuant to Section
5.1;
(vii) any expenditure (other than a Mehta and Isaly Expense or
a Blackstone Expense) greater than $10,000 individually or $100,000 in
the aggregate for any Fiscal Year or any investment by the Partnership
for its own account (other than money-market or other short-term
investments);
(viii) any lease entered into by the Partnership;
(ix) the formation by the Partnership of any subsidiary or
partnership in which the Partnership owns an equity interest to conduct
any portion of the Partnership's business;
(x) the reorganization of the Partnership as a corporation or
other entity, or the creation of a holding corporation or partnership
to own all or any substantial portion of the assets or all the equity
interests in the Partnership;
(xi) the engagement of any independent accountant, counsel,
actuary or consultant to the Partnership or any significant change in
or termination of any engaged independent accountant, counsel, actuary
or consultant to the Partnership, including pursuant to Section 6.1(b);
provided, that no Partner Consent shall be required for the engagement
of Seward & Kissel, Simpson Thacher & Bartlett, Deloitte & Touche or
Rothstein, Kass & Co.;
(xii) the commencement, termination or settlement of any
litigation;
(xiii) the establishment of any period other than a calendar
quarter as a Fiscal Period pursuant to Section 5.4, the determination
of reserves and retained net earnings pursuant to Section 5.4 and,
except as may be required by Section 5.4, any distribution of cash or
investments or other property of the Partnership to the Partners or any
withdrawals of capital from the Partnership;
(xiv) the acceptance of any new client and the fees for
services provided by the Partnership to such client in connection with
the opening of and maintaining of Separate Accounts;
12
(xv) any change in the name of the Partnership or the use of
another name by the Partnership to carry on any business of the
Partnership other than as contemplated by Section 9.2;
(xvi) a transaction or other matter involving any actual or
potential conflict of interest affecting any Partner or Affiliate
thereof (including pursuant to clause (iii) of Section 3.3(d));
(xvii) the maintenance of a registered office in Delaware
other than that specified in Section 2.6;
(xviii) the determination of Net Income (Loss) pursuant to
Section 6.1(a) and other determinations, valuations and other matters
of judgment required to be made for accounting purposes pursuant to
Section 6.1(e);
(xix) the determination and approval of such tax matters as
are specified in Section 6.2;
(xx) the allocation of amounts in respect of a transferred
interest in the Partnership pursuant to Section 8.2(f);
(xxi) the disclosure of Confidential Information to a Person
other than a Partner and its Affiliates and advisors (including their
respective employees) pursuant to Section 9.6;
(xxii) the withdrawal of a Partner from the Partnership or
admission of an additional Partner to the Partnership pursuant to
Section 8.2;
(xxiii) the determination of any titles and responsibilities
of employees of the Partnership pursuant to Section 2.5(b);
(xxiv) any material action taken or decision made by the
Partnership in its capacity as general partner of the Private Fund (or
similar investment vehicle) or in its capacity as investment adviser or
investment manager of any Separate Accounts, except for any action
taken or decision made with respect to investments of the Private Fund
(or similar investment vehicle) or of any Separate Accounts; and
(xxv) any other matter expressly stated in this Agreement to
be subject to approval by a Partner Consent.
(b) A Partner shall not be obligated to abstain from voting on
any matter (or vote in any particular manner) because of any interest (or
conflict of interest) of such Partner (or any Affiliate thereof) in such matter.
13
(c) Each Partner agrees that, except as otherwise specifically
provided herein and to the fullest extent permitted by applicable law, for
purposes of granting the approval of the Partners with respect to any proposed
action of or relating to the Partnership, the approval of such action by the
Partner Consent as provided herein shall bind each Partner and shall have the
same legal effect as the approval of each Partner of such action.
(d) The failure to vote by Blackstone on any matter requiring
Partner Consent hereunder shall be deemed a Partner Consent with respect thereto
if Blackstone does not respond to the notice regarding such matter within ten
Business Days of the delivery of such notice.
SECTION 3.3. Certain Duties and Obligations of the Partners.
(a) The General Partner shall take all action which may be necessary or
appropriate (i) for the formation and continuation of the Partnership as a
limited partnership under the laws of the State of Delaware and (ii) for the
development, maintenance, preservation and operation of the business of the
Partnership in accordance with the provisions of this Agreement and applicable
laws and regulations.
(b) Each Partner shall use its best efforts to conduct the
affairs of the Partnership so as to cause the Partnership to be classified for
Federal income tax purposes as a partnership and not as an association taxable
as a corporation.
(c) The General Partner shall take (and each Limited Partner
agrees to cooperate with the General Partner and approves of the General
Partner's taking on its behalf) all action which is necessary (i) to form or
qualify the Partnership to conduct the business in which the Partnership is
engaged under the laws of any jurisdiction in which the Partnership is doing
business and to continue in effect such formation or qualification and (ii) in
order to protect the limited liability of the Limited Partners under the laws of
any jurisdiction in which the Partnership is doing business. To the extent
necessary for the conduct of the Partnership's business or the performance by
the General Partner of its responsibilities hereunder, the General Partner shall
take or cause to be taken all action required to register or qualify the
Partnership, the General Partner or the General Partner's Affiliates with the
Commodity Futures Trading Commission as a commodity pool operator and to apply
for membership with the National Futures Association in connection therewith,
and to register with the Securities and Exchange Commission as an investment
adviser, and to maintain such registrations, qualifications and memberships in
effect for so long as required.
(d) The General Partner shall not take, or cause to be taken,
any action that would result in any Limited Partner having any personal
liability for the obligations of the Partnership. The General Partner shall be
under a duty as described herein to conduct the affairs of the Partnership in
the best interests of the Partnership and of the Partners including the
safekeeping and use of all Partnership funds and assets and the use thereof for
the exclusive benefit of the Partnership. Neither any Partner nor any Affiliate
of any Partner
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shall enter into any transaction with the Partnership unless the transaction (i)
is expressly permitted hereunder, (ii) is entered into on arm's-length terms in
the ordinary course of Partnership business or (iii) is approved by a Partner
Consent upon disclosure of any direct or indirect interest the Partner or
Affiliate thereof may have in the transaction.
SECTION 3.4. Restrictions on Authority of the General Partner.
The General Partner shall not have the authority to:
(a) do any act in contravention of this Agreement;
(b) do any act which would make it impossible to carry on the
ordinary business of the Partnership, except in connection with the
dissolution, winding up and termination of the Partnership as approved
by a Partner Consent pursuant to Section 3.2(a)(i);
(c) possess Partnership property, or assign their rights in
specific Partnership property, for other than a Partnership purpose;
(d) admit a Person as a Partner except as provided in this
Agreement;
(e) knowingly perform any act that would subject any Limited
Partner to liability as a general partner in any jurisdiction; or
(f) knowingly perform any act in violation of the express
terms of a prior unrevoked Partner Consent.
ARTICLE IV
Scope of Partnership
SECTION 4.1. Other Activities. (a) Except as provided in
Section 4.1(b), this Agreement shall not be construed in any manner to preclude
any Partner or any of its Affiliates from engaging in any activity whatsoever
permitted by applicable law (whether or not such activity might compete, or
constitute a conflict of interest, with the Partnership), including providing
brokerage, financial or investment advisory services to any Person, managing
investments or receiving compensation or profit therefrom.
(b) Neither any Blackstone Entity nor any Mehta and Isaly
Entity shall engage in Partnership Business or receive compensation therefrom
except through and for the account of the Partnership, and all revenues received
by any Blackstone Entity or Mehta and Isaly Entity from or arising in connection
with Partnership Business (including management and incentive fees, interest
income and any other compensation) shall be for the account of the Partnership;
provided, that a Mehta and Isaly Entity may engage in the Asset
15
Management Business outside of the Partnership and for its own account with
respect to funds under management raised from or through the following sources:
(i) the Public Fund, unless otherwise agreed upon by a
Blackstone Entity and Mehta and Isaly Entity; and
(ii) the Offshore Fund.
(c) A Partner and its Affiliates may engage in any Partnership
Business outside of the Partnership and for their own account to the extent
provided for in a written Partner Consent.
SECTION 4.2. Early Termination. Notwithstanding anything
contained herein to the contrary, the Partnership may be terminated:
(a) upon 30 days written notice by the General Partner to
Blackstone in the event of Deficient Performance by Blackstone, which
notice must be given within 30 days after the end of the Performance
Period; or
(b) upon 30 days written notice by Blackstone in the event
that both Samuel D. Isaly and Viren Mehta cease to be actively involved
in the business of the Partnership (or have both otherwise withdrawn
(or are deemed to have withdrawn) therefrom as a Limited Partner);
SECTION 4.3. Withdrawal of Partners. (a) Any Partner may
withdraw by voluntary resignation from the Partnership on the last day of any
calendar month, on not less than 15 days' prior written notice by such Partner
to the remaining Partners. Any Partner so withdrawing shall receive the amount
of its Capital Account balance as of the effective date of such withdrawal
within a reasonable period of time after such amount is determined, and
thereafter such Partner shall have no further interest herein.
(b) Upon the death or permanent disability of any Individual
Mehta and Isaly Partner, such Partner shall thereupon cease to be a Partner.
Such withdrawn Partner (or his estate or heirs) shall be admitted to the
Partnership as a Special Limited Partner. The Profit Sharing Percentage of such
Special Limited Partner shall be equal to the following percentages of the
Profit Sharing Percentage of such Individual Mehta and Isaly Partner at the time
of such withdrawal for the following one year periods from and after such
Special Limited Partner's admission date:
Profit Sharing Percentage as a
Percentage of Profit Sharing
Percentage at Time of
Year Withdrawal
---- ----------
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1 100%
2 50%
3 and thereafter 0%
(c) In the event of Deficient Performance by Blackstone, in
lieu of early termination of the Partnership as provided in Section 4.2(a), the
General Partner may specify in the notice described under Section 4.2(a) that it
has elected (in lieu of such early termination) to cause the Blackstone Partners
to withdraw from the Partnership. In such case, (A) Section 4.1(b) shall have no
further force or effect and (B) each Blackstone Partner shall be admitted to the
Partnership as a Special Limited Partner, and its Profit Sharing Percentage
shall be, from and after its admission date, equal to its Profit Sharing
Percentage at the time of withdrawal; provided, that such Special Limited
Partner shall not be allocated its Profit Sharing Percentage of the total amount
of Net Income as provided in Section 5.3, but shall only be entitled to its
Profit Sharing Percentage of that portion of Net Income that is attributable to
those Funds Under Management with the Partnership as of such Special Limited
Partner's admission date, plus those additional Funds Under Management invested
with the Partnership by those investors that had Funds Under Management with the
Partnership as of such admission date.
(d) In the event of the occurrence of the event specified in
Section 4.2(b), Blackstone may specify in the notice described under Sections
4.2(b) that it has elected (in lieu of such early termination) to cause the
remaining Mehta & Isaly Partners to withdraw from the Partnership (to the extent
such Partners have not otherwise withdrawn from the Partnership in accordance
with the terms hereof). In that case, the Mehta and Isaly Partners shall receive
the amount of each of their Capital Account balances as of the effective date of
the withdrawal within a reasonable period of time after such amount is
determined; provided, that if this Section 4.3(d) is operable as a result of the
death or permanent disability of a Mehta and Isaly Partner that is an
individual, then such Mehta and Isaly Partner shall be admitted to the
Partnership as a Special Limited Partner as provided in Section 4.3(b). If upon
the withdrawal of the General Partner as provided in this Section 4.3(d) there
shall be no remaining General Partner, the Partnership nonetheless shall not be
dissolved and shall not be required to be wound up if, upon the occurrence of
such withdrawal, the Blackstone 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 replacement General Partners upon such terms and
conditions as the Blackstone Partners and the replacement General Partner(s)
agree.
(e) In the event of Deficient Performance by the General
Partner, notice may be given by Blackstone, within 30 days after the date on
which The Mehta and Isaly Index as at June 30, 1996 is published and publicly
available, stating that the Blackstone
17
Partners elect to withdraw from the Partnership. In that case, each Blackstone
Partner shall be admitted to the Partnership as a Special Limited Partner each
having for the term of the Partnership the same Profit Sharing Percentage as it
had upon its withdrawal from the Partnership.
(f) A withdrawn General Partner shall remain liable for all
obligations of the Partnership incurred while it was a General Partner and
resulting from its acts or omissions as a General Partner to the fullest extent
provided by law.
(g) If the withdrawal of a Partner (or withdrawal and
subsequent admission of such Partner as a Special Limited Partner) causes the
aggregate Profit Sharing Percentages of all Partners (including Special Limited
Partners) to be less than 100% (or there otherwise remains an amount of
unallocated Net Income), such unallocated amount of Profit Sharing Percentage
(or Net Income as the case may be) shall be reallocated to the remaining
Partners (other than the Special Limited Partners) pro rata in accordance with
each of their Profit Sharing Percentages as of the time of such withdrawal;
provided, that if such withdrawal occurs with respect to an Individual Mehta and
Isaly Partner, and there remains at least one Individual Mehta and Isaly Partner
that is not a Special Limited Partner, then such unallocated amount shall be
reallocated to the remaining Mehta and Isaly Partners pro rata in accordance
with each of their Profit Sharing Percentages as of the time of such withdrawal.
(h) Upon the occurrence of an event constituting Cause with
respect to any Partner, such Partner shall immediately be deemed to have
withdrawn from the Partnership with no further interest therein, and its Profit
Sharing Percentage shall be reallocated to the remaining Partners as provided in
Section 4.3(g).
(i) If Blackstone becomes a Special Limited Partner pursuant
hereto, (A) only those matters contained in clauses (i), (iv), (v),
(vi), (xvi), (xviii) and (xxii) of Section 3.2 shall require a Partner
Consent and (B) the Partnership, the Private Fund and any other portion
of the Partnership Business shall not in any way be associated with
Blackstone (or its Affiliates) in any written materials or other
communications by any Partner or the Partnership to any Person.
ARTICLE V
Capital Contributions;
Allocations; Distributions
SECTION 5.1. Capital Contributions. Each Partner, severally,
agrees to make an initial capital contribution in cash equal to its pro rata
share, based upon Profit Sharing Percentages, of the Organizational Expenses of
the Partnership. Thereafter, each Partner, severally, agrees to make
contributions of capital in cash to the Partnership at such time and in such
amounts as are required by a written Partner Consent. Such capital
18
contributions shall be made by the Partners pro rata based on their Profit
Sharing Percentages.
SECTION 5.2. Capital Accounts. There shall be established for
each Partner on the books of the Partnership as of the date of the formation of
the Partnership, or such later date on which such Partner is admitted to the
Partnership, a capital account (each being a "Capital Account"). The
contribution of capital of a Partner shall be credited to the Capital Account of
such Partner on the date such contribution of capital is paid to the
Partnership. Thereafter, each Partner's Capital Account shall be (i) credited
with additional capital contributions, if any, to the capital of the Partnership
made by such Partner and such Partner's allocable share of the Partnership's Net
Income, and (ii) debited with distributions to such Partner of cash or the fair
market value of other property, such Partner's allocable share of the
Partnership's Net Loss and of expenditures of the Partnership described in
Section 705(a)(2)(B) of the Code, and otherwise maintained in accordance with
the provisions of the Code. Capital Accounts shall be adjusted to reflect any
transfer of a Partner's interest in the Partnership as provided herein and as
otherwise provided in this Article V and in Article VI. Interest shall not be
payable on Capital Account balances.
SECTION 5.3. Allocations. (a) Net Income (Loss) of the
Partnership shall be allocated to the Capital Accounts of all the Partners
(including the General Partner) in proportion to their respective Profit Sharing
Percentages set forth on Schedule A hereto; provided, however, that in no event
shall a Limited Partner be allocated a Net Loss which would cause such Limited
Partner's Capital Account balance to be reduced below zero. Net Loss in excess
of the limitation set forth in the proviso in the immediately preceding sentence
shall be allocated to the General Partner; provided, that 100% of Net Income of
the Partnership shall thereafter be first allocated to the General Partner until
the General Partner is allocated an amount equal to the Net Loss allocated to
the General Partner pursuant to this sentence.
(b) To the extent, if any, that Blackstone Expenses or Mehta
and Isaly Expenses and any item of loss, expense or deduction resulting
therefrom are deemed to constitute items of Partnership loss, expense or
deduction rather than items of loss, expense or deduction of the Blackstone
Entities or the Mehta and Isaly Entities, as the case may be, such Blackstone
Expenses or Mehta and Isaly Expenses, as the case may be, and resulting items of
loss, expense or deduction shall, unless otherwise agreed by a written Partner
Consent, be allocated 100% to Blackstone and their transferees or the Mehta and
Isaly Partners and their transferees, as the case may be, pro rata in proportion
to the Profit Sharing Percentages of the Blackstone Partners and their
transferees or the Mehta and Isaly Partners and their transferees, as the case
may be.
(c) Notwithstanding anything herein to the contrary, in the
event any Partner unexpectedly receives any adjustments, allocations or
distributions described in paragraphs (b)(2)(ii)(d)(4), (5) or (6) of Section
1.704-1 of the regulations under the Code, there shall be specially allocated to
such Partner such items of Partnership income and gain,
19
at such times and in such amounts as will eliminate as quickly as possible that
portion of any deficit in its Capital Account caused or increased by such
adjustments, allocations or distributions. To the extent permitted by the Code
and the regulations thereunder, any special allocations of items of income or
gain pursuant to this Section 5.3(c) shall be taken into account in computing
subsequent allocations of Net Income (Loss) pursuant to this Section 5.3 so that
the net amount of any items so allocated and the subsequent Net Income (Loss)
allocated to the Partners pursuant to this Section 5.3 shall, to the extent
possible, be equal to the net amounts that would have been allocated to each
such Partner pursuant to the provisions of this Section 5.3 if such unexpected
adjustments, allocations or distributions had not occurred.
(d) Notwithstanding any provision of this Agreement to the
contrary, the General Partner shall at all times be allocated at least 1% of
each item of income, gain, loss, deduction and credit of the Partnership.
SECTION 5.4. Distributions. (a) Within 30 days after the end
of each fiscal quarter or such other period as shall be established pursuant to
a Partner Consent (a "Fiscal Period"), the Partnership shall, to the extent cash
is available therefor, distribute cash to the Partners in an amount equal to
substantially all of its Net Income for such Fiscal Period, net of cash reserves
in the amount as may be determined by a Partner Consent to be reasonably
appropriate or necessary to pay Maintenance Expenses.
(b) Each Partner shall furnish the Partnership with such
information, forms and certifications as it may require and as are necessary to
comply with the regulations governing the obligations of withholding tax agents.
Each Partner represents and warrants that any such information and forms
furnished by him shall be true and accurate. Notwithstanding any provision of
this Agreement to the contrary, each Partner agrees to pay, and to indemnify the
Partnership and the other Partners on an aftertax basis from, any and all
damages, costs and expenses (including any liability for any taxes of any type
whatsoever, penalties, additions to tax or interest) in respect of income of
(including such Partner's share of Partnership income) or distributions,
transfers or payments to such Partner. To the extent the indemnifying Partner is
otherwise entitled to distributions from the Partnership, such damages, costs
and expenses may be paid by the Partnership out of amounts that would otherwise
be distributed to such Partner. For purposes of this Agreement any such payment
shall be deemed to be a distribution to such Partner (and in the case of a tax
such as the New York City unincorporated business tax that is a tax imposed upon
the Partnership, the Partner shall be deemed to have recontributed such amount
to the Partnership). In all other events, such Partner shall make such payment
directly from its own funds.
SECTION 5.5. Restricted Payments. Notwithstanding any
provisions to the contrary in this Agreement, the Partnership and the General
Partner on behalf of the Partnership shall not make a distribution if such
distribution would violate the Partnership Act.
20
SECTION 5.6. Expenses. (a) As between the Blackstone Partners
and their transferees and the Partnership, the Blackstone Partners and their
transferees shall be solely responsible for and shall pay or cause to be paid
all Blackstone Expenses.
(b) As between the Mehta and Isaly Partners and their
transferees and the Partnership, the Mehta and Isaly Partners and their
transferees shall be solely responsible for and shall pay or cause to be paid
all Mehta and Isaly Expenses.
(c) The Partnership shall be responsible for and shall pay all
Organizational Expenses and Maintenance Expenses out of funds of the
Partnership.
ARTICLE VI
Books and Reports; Tax Matters
SECTION 6.1. General Accounting Matters. (a) Net Income (Loss)
shall be determined by or under the direction of the General Partner and
approved by a Partner Consent at the end of each Fiscal Period and shall be
allocated as described in Section 5.3.
(b) As promptly as possible after the close of each Fiscal
Year of the Partnership, the General Partner shall cause an examination of the
financial statements of the Partnership as of the end of each such year to be
made in accordance with generally accepted auditing standards as in effect on
the date thereof, by Deloitte & Touche or such other firm of certified public
accountants as may be selected by a Partner Consent. As soon as is practicable
after the close of each Fiscal Year, a copy of the financial statements of the
Partnership, including the report of such certified public accountants, shall be
furnished to each Partner and shall include, as of the end of such Fiscal Year:
(i) a statement of net assets of the Partnership;
(ii) a statement of income and capital of the Partnership; and
(iii) a statement of changes in net assets of the Partnership.
In addition, each Partner shall be supplied with all other
Partnership information necessary to enable such Partner to prepare its Federal
and state and local income tax returns and a statement as to such Partner's
Capital Account as at the close of such Fiscal Year.
(c) As promptly as possible after the close of each of the
first three fiscal quarters of each Fiscal Year of the Partnership, the General
Partner shall furnish each Partner with unaudited financial statements of the
Partnership consisting of the statements
21
described in Section 6.1(b) with respect to such quarter, and a statement of
such Partner's Capital Account as at the end of such quarter.
(d) The General Partner shall keep or cause to be kept books
and records pertaining to the Partnership's business showing all of its assets
and liabilities, receipts and disbursements, realized profits and losses,
Partners' Capital Accounts and all transactions entered into by the Partnership.
Such books and records of the Partnership shall be kept at its principal office,
and the Partners and their representatives shall at all reasonable times have
free access thereto for the purpose of inspecting or copying the same.
Blackstone and any party it may designate on its behalf shall at all reasonable
times have free access to the books and records of all funds and accounts
managed by the Partnership to the same extent as are available to the General
Partner.
(e) All determinations, valuations and other matters of
judgment required to be made for accounting purposes under this Agreement shall
be made by or under the direction of the General Partner and approved by a
Partner Consent and shall be conclusive and binding on all Partners, former
Partners, their successors or legal representatives and any other Person except
for computational errors or fraud, and to the fullest extent permitted by law no
such Person shall have the right to an accounting or an appraisal of the assets
of the Partnership or any successor thereto except for computational errors or
fraud.
SECTION 6.2. Certain Tax Matters. (a) All items of income,
gain, loss, deduction and credit of the Partnership shall be allocated among the
Partners for Federal, state and local income tax purposes in the same manner as
the corresponding constituent items of Net Income (Loss) shall be allocated
among the Partners pursuant to this Agreement, except as may otherwise be
provided herein or by the Code. To the extent Treasury Regulations promulgated
pursuant to Subchapter K of the Code (including under Sections 704(b) and (c) of
the Code) require allocations for tax purposes that differ from the foregoing
allocations, the General Partner may, subject to a Partner Consent, determine
the manner in which such tax allocations shall be made so as to comply more
fully with such Treasury Regulations or other applicable law and, at the same
time to the extent reasonably possible, preserve the economic relationships
among the Partners as set forth in this Agreement.
(b) The taxable year of the Partnership shall be the same as
its Fiscal Year. The General Partner shall cause to be prepared all Federal,
state and local tax returns of the Partnership for each year for which such
returns are required to be filed and, after approval of such returns by a
Partner Consent, shall cause such returns to be timely filed. The General
Partner shall, subject to a Partner Consent, determine the appropriate treatment
of each item of income, gain, loss, expense, deduction and credit of the
Partnership and the accounting methods and conventions under the tax laws of the
United States, the several states and other relevant jurisdictions as to the
treatment of any such item or any other method or procedure related to the
preparation of such tax returns. The General Partner may, subject to a Partner
Consent, cause the Partnership to make or refrain from making any
22
and all elections permitted by such tax laws. The Partnership and each Partner
hereby designate the General Partner as the "tax matters partner" for purposes
of Section 6231(a)(7) of the Code (the "Tax Matters Partner"). The Tax Matters
Partner shall have all of the rights, duties, powers and obligations provided
for in Sections 6221 through 6232 of the Code; provided, however, that the Tax
Matters Partner shall not take any action to extend the statute of limitations
with respect to the tax returns of the Partnership, or make any decisions on
behalf of the Partnership to contest or settle any adverse Internal Revenue
Service decision related to a Partnership return without a written Partner
Consent.
ARTICLE VII
Dissolution
SECTION 7.1. Dissolution. The Partnership shall be dissolved
and subsequently terminated upon the occurrence of the first of the following
events:
(i) a determination by a written Partner Consent to dissolve
the Partnership;
(ii) the occurrence of a Disabling Event with respect to the
General Partner, provided that the Partnership shall not be dissolved if, within
90 days after the Disabling Event, all of the Limited Partners agree in writing
to continue the business of the Partnership and to the appointment, effective as
of the date of the Disabling Event, of another General Partner; and
(iii) the election of a Partner to terminate the Partnership
pursuant to Section 4.2.
SECTION 7.2. Winding-up. When the Partnership is dissolved,
the business and property of the Partnership shall be wound up and liquidated by
the General Partner, unless (i) in the event of the unavailability of the
General Partner (ii) pursuant to clause (ii) of Section 7.1 or (iii) pursuant to
Section 4.2 if Blackstone is the electing Partner in connection therewith, by
Blackstone (the General Partner, or Blackstone as the case may be, being
hereinafter referred to as the "Liquidator"). The Liquidator shall use its best
efforts to reduce to cash and cash equivalent items such assets of the
Partnership as the Liquidator shall deem it advisable to sell, subject to
obtaining fair value for such assets and any tax or other legal considerations.
SECTION 7.3. Final Distribution. Within 120 calendar days
after the effective date of dissolution of the Partnership, the assets of the
Partnership shall be distributed in the following manner and order:
23
(a) to the payment of the expenses of the winding-up,
liquidation and dissolution of the Partnership;
(b) to pay all creditors of the Partnership, other than
Partners, either by the payment thereof or the making of reasonable provision
therefor;
(c) to establish reserves, in amounts established by the
Liquidator, to meet other liabilities of the Partnership; and
(d) to pay, in accordance with the terms agreed among them and
otherwise on a pro rata basis, all creditors of the Partnership that are
Partners, either by the payment thereof or the making of reasonable provision
therefor.
The remaining assets of the Partnership shall be applied and distributed in
accordance with the positive balances of the Partners' capital accounts, as
determined after taking into account all adjustments to capital accounts for the
Partnership taxable year during which the liquidation occurs. For purposes of
the application of this Section 7.3 and determining capital accounts on
liquidation, all unrealized gains, losses and accrued income and deductions of
the Partnership shall be treated as realized and recognized immediately before
the date of distribution.
ARTICLE VIII
Transfer of Partners' Interests; Sale
SECTION 8.1. Certain Provisions Relating to Sale of the
Partnership or Partnership Interests. (a) Subject to 8.1(b), no Partner may,
directly or indirectly, assign, sell, exchange, transfer, pledge, hypothecate or
otherwise dispose of all or any part of its interest in the Partnership (any
assignment, sale, exchange, transfer, pledge, hypothecation or other disposition
of an interest in the Partnership being herein collectively called a "Transfer")
without the prior written consent of the General Partner and Blackstone, which
consent may be given or withheld in each of their sole discretion.
(b) (i) Subject to the remainder of this Section 8.1(b),
Blackstone may Transfer all or any portion of its interest in the Partnership
(the "Interest") without the prior written consent of any Partner. If Blackstone
(the "Transferor") at any time wishes to Transfer to a Person other than an
Affiliate of Blackstone all or a portion of its interest in the Partnership,
Transferor shall first give written notice (a "Transferor's Notice") to the
Mehta and Isaly Partners stating that the Transferor wishes to offer to Transfer
the Interest and setting forth the amount of such interest which Blackstone
wishes to offer to Transfer (the "Offered Interest").
24
(ii) If within fifteen (15) Business Days after the date on
which the Transferor's Notice is received by the Mehta and Isaly Partners, the
Mehta and Isaly Partners give notice to the Transferor that the Mehta and Isaly
Partners thereby make an irrevocable offer in writing to purchase all but not
less than all of the Offered Interest (an "Offer Notice") and sets forth therein
the proposed amount and form of consideration for the Offered Interest and each
of the other material terms of such offer, the Transferor may Transfer the
Offered Interest to a third party in accordance with this Section 8.1(b) for a
period of one hundred eighty (180) days after delivery of such Offer Notice only
if the terms of such transaction are more favorable to the Transferor than the
terms set forth in the Offer Notice. The fair market value of any non-cash
consideration offered by the Mehta and Isaly Partners or a third party, as the
case may be, shall be reasonably determined by the Transferor.
(iii) If an Offer Notice is not received within fifteen (15)
Business Days after the date on which the Transferor's Notice is received by the
Mehta and Isaly Partners, the Transferor may offer for sale and sell the Offered
Interest for a period of one hundred eighty (180) days after the expiration of
such fifteen (15) Business Day period on any terms offered therefor.
(iv) If the Offered Interest has not been sold either to the
Mehta and Isaly Partners or a third party for any reason before the expiration
of the one hundred eighty (180) day period described in 8.1(b)(iii) above, all
of the provisions of this Section 8.1(b) shall again become applicable to any
sales or offers to sell the Offered Interest by the Transferor.
(v) If the Mehta and Isaly Partners purchase the Offered
Interest in accordance with this Section 8.1(b), the closing of the purchase of
the Offered Interest shall take place on the tenth Business Day after the
expiration of the one hundred eighty (180) day period described in 8.1(b)(ii)
above. The Seller and the Mehta and Isaly Partners shall use their best efforts
to make all necessary filings and to secure any approvals required and to comply
as soon as practicable with all applicable United States federal and state laws
and regulations in connection with such purchase.
(c) (i) Each of Blackstone and the Mehta and Isaly Group
shall, at the end of each Fiscal Year beginning with December 31, 1996 (or in
the case of the Mehta and Isaly Group such earlier date as is within 30 days
after the occurrence of a Blackstone Change of Control), have the right to
purchase or sell all of its respective Interests each to the other in the manner
set forth in this Section 8.1(c); provided, however, that Blackstone shall not
then have initiated procedures for Transfer of its Interests pursuant to Section
8.1(b).
(ii) Either Blackstone or the Mehta and Isaly Group, as the
case may be (the "Offeror"), may serve upon the other (the "Offeree") a notice
(the "Offering Notice") which shall contain the following terms:
25
(A) a statement of intent to rely on this Section 8.1(c).
(B) the aggregate dollar amount (the "Buy/Sell Price") which
the Offeror would be willing to pay for all the Offeree's Interests as
of that date.
(iii) The Offeree shall then have the obligation either:
(A) to sell its full Interest to the Offeror for the Offer
Price; or
(B) to purchase the full Interest of the Offeror for an amount
equal to a percentage of the Offer Price equal to the quotient (stated
as a percentage) derived by dividing the Offeror's Profit Sharing
Percentage by the Offeree's Profit Sharing Percentage.
(iv) Within 30 days after receipt of the Offering Notice by
the Offeree (the "Buy/Sell Option Period"), the Offeree shall notify the Offeror
as to whether the Offeree will elect to purchase the Interest of the Offeror or
will elect to sell its Interest to the Offeror. If the Offeree does not notify
the Offeror of its election prior to expiration of the Option Period, the
Offeree shall for all purposes be conclusively deemed to have elected to sell
its Interest to the Offeror as provided in this Section.
(v) The Person obligated to purchase (the "Buyer") under this
Section 8.1(c) shall fix a date (the "Buy/Sell Closing Date") upon which the
closing of such purchase (the "Buy/Sell Closing") shall occur not later than 60
days following the stated expiration of the Option Period. The Buy/Sell Closing
shall take place at a location in New York City as designated by the Buyer.
(vi) At the Buy/Sell Closing, the selling Person (the
"Seller") shall execute and deliver to the Buyer assignments of interest, deeds,
bills of sale, instruments of conveyance, and other instruments as the Buyer may
reasonably require, to give it title to all of the Seller's right, title and
interest in and to the Partnership, and of the Partnership's right, title and
interest in and to the Partnership Assets, and the Seller hereby irrevocably
constitutes and appoints the Buyer its attorney-in-fact to execute, acknowledge
and deliver such instruments as may be necessary or appropriate to carry out and
enforce the provisions of this Section 8.1(c). The Buyer may elect to retain any
Partnership loans which are secured by liens or mortgages on Partnership Assets
provided that the Seller is released, if necessary, from any liability for the
payment thereof.
(vii) The Offering Price shall be paid pursuant to this
Section 8.1(c), at the option of the Buyer, in the form of (i) cash, (ii) a
Buy/Sell Note (as defined below) or (iii) a combination of cash and a Buy/Sell
Note. For purposes of this Section 8.1(c), a "Buy/Sell Note" shall mean a note
issued by the Buyer on the Buy/Sell Closing Date having (A) a maturity
determined by the Buyer no longer than five years from the Buy/Sell Closing
Date, (B) equal annual installments of principal payments on such note, plus
accrued interest
26
thereon payable on such date, beginning 12 months from the Buy/Sell Closing Date
and (C) a fixed annual interest rate equal to the "prime rate" of Chemical Bank
prevailing on the Buy/Sell Closing Date plus 1%. A Buy/Sell Note may be prepaid
in full by the Buyer at any time by making a payment to the Seller of the amount
of the remaining principal payments on such Buy/Sell Note, plus accrued interest
thereon to the date of such prepayment.
(viii) For the period of two years from the Buy/Sell Closing
Date, the Seller agrees to remit to the Buyer a percentage of any revenues that
it receives relating to or in connection with any business which is comparable
to the Partnership Business (in terms of its focus on the pharmaceutical,
biotechnology and health care industries) equal to the Buyer's Profit Sharing
Percentage immediately prior to initiation of the procedures of this Section
8.1(c).
SECTION 8.2. Other Transfer Provisions. (a) Any purported
Transfer by a Partner of all or any part of its interest in the Partnership in
violation of this Article VIII shall be null and void and of no force or effect.
(b) Except as provided in this Article VIII, no Partner shall
have the right to withdraw from the Partnership prior to its termination and no
additional Partner may be admitted to the Partnership without a written Partner
Consent. In the event of any withdrawal of the General Partner in violation of
this Agreement, including as a result of a Disabling Event, the General Partner
shall be liable to the Partnership as provided in Section 17-602 of the
Partnership Act.
(c) Notwithstanding any provision of this Agreement to the
contrary, a Partner may not Transfer all or any part of its interest in the
Partnership if such Transfer would jeopardize the status of the Partnership as a
partnership for federal income tax purposes, cause a dissolution of the
Partnership under the Partnership Act or would violate, or would cause the
Partnership to violate, any applicable law or regulation, including any
applicable federal or state securities laws.
(d) The General Partner shall admit as an additional or
substitute Limited Partner any Person to whom an interest in the Partnership is
Transferred by a Limited Partner in accordance with the terms of this Agreement.
(e) Concurrently with the admission of any substitute or
additional Partner, the General Partner shall forthwith cause any necessary
papers to be filed and recorded and notice to be given wherever and to the
extent required showing the substitution of a Transferee as a substitute Partner
in place of the Transferring Partner, or the admission of an additional Partner,
all at the expense, including payment of any professional and filing fees
incurred, of such substituted or added Partner. The admission of any Person as a
substitute or additional Partner shall be conditioned upon such Person's written
acceptance and adoption of all the terms and provisions of this Agreement.
27
(f) Any transferor of a Partner's Interest admitted to the
Partnership as a Limited Partner shall succeed to all of the rights and
obligations of the transferring Partner pursuant hereto.
ARTICLE IX
Miscellaneous
SECTION 9.1. Arbitration. To the fullest extent permitted by
law, any dispute, controversy or claim arising out of or relating to this
Agreement or to the Partnership's affairs or the rights or interests of the
Partners or the breach or alleged breach of this Agreement, whether arising
during the Partnership term or at or after its termination or during or after
the liquidation of the Partnership, shall be settled by arbitration in New York
City (or, if applicable law requires some other forum, then such other forum) in
accordance with the rules then obtaining of the American Arbitration
Association. If the parties to any such controversy are unable to agree upon a
neutral arbitrator or arbitrators, then an arbitrator shall be selected by each
party and such two arbitrators shall appoint a third arbitrator to decide the
matter in accordance with such rules. The parties consent to the nonexclusive
jurisdiction of the Supreme Court of the State of New York, and of the United
States District Court for the Southern District of New York, for all purposes in
connection with any such arbitration. The parties agree that any process or
notice of motion or other application to either of such courts, and any paper in
connection with any such arbitration, may be served by certified mail, return
receipt requested, or by personal service or in such other manner as may be
permissible under the rules of the applicable court or arbitration tribunal,
provided a reasonable time for appearance is allowed.
SECTION 9.2. Ownership and Use of Names. Rights to the name
"Blackstone" shall belong solely to the Blackstone Entities. Rights to the name
"Mehta and Isaly" shall belong solely to the Mehta and Isaly Group. The
ownership of, and the right to use, sell or otherwise dispose of, the names,
"Caduceus Management Partners L.P." or "Caduceus Capital, L.P." or any
abbreviation or modification thereof, shall belong to the Partnership. The
General Partner agrees to take all actions, and to approve, execute and file any
document or instrument proposed by Blackstone to protect the rights of
Blackstone to the name "Blackstone." Blackstone agrees to take all actions, and
to approve, execute and file any document or instrument proposed by the General
Partner to protect the rights of the General Partner to the name "Mehta and
Isaly".
SECTION 9.3. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware. In
particular, the Partnership is formed pursuant to the Partnership Act, and the
rights and liabilities of the General Partner and Limited Partners shall be as
provided therein, except as herein otherwise expressly provided.
28
SECTION 9.4. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto, their
respective successors and assigns.
SECTION 9.5. Access; Confidentiality. By executing this
Agreement, each Partner expressly agrees, at all times during the term of the
Partnership and thereafter and whether or not at the time a Partner of the
Partnership, to maintain the confidentiality of, and not to disclose to any
Person other than its Affiliates, another Partner or its Affiliates and their
respective advisors (including their respective employees) or a Person
designated by a Partner Consent any information ("Confidential Information")
relating to the business (including trade secrets), financial structure,
financial position or financial results, clients or affairs of the Partnership
and the Partners that shall not be generally, known to the public or the
securities or commodities industry, except as required for any arbitration
proceeding pursuant to Section 9.1 or as required by law, by rule or regulation
having the force of law, by any regulatory or self-regulatory organization
having jurisdiction or by legal process. Each Partner shall inform the Persons
to whom it discloses Confidential Information as permitted under this Section
9.5 of the confidential nature of the Confidential Information and shall cause
such Persons to agree to maintain the confidentiality of the Confidential
Information. The provisions of this Section 9.5 shall survive the termination of
the Partnership.
SECTION 9.6. Notices. Whenever notice is required or permitted
by this Agreement to be given, such notice shall be in writing (including cable,
telex, facsimile or similar writing) and shall be given to any Partner at its
address or telex number shown in the Partnership's books and records (including
Schedule A hereto) or, if given to a General Partner, at the address of the
principal place of business of the Partnership. Each such notice shall be
effective (i) if given by telex or facsimile, upon electronic or oral
confirmation of receipt, (ii) if given by mail, on the fourth day after deposit
in the mails (certified return receipt requested) addressed as aforesaid and
(iii) if given by any other means, when delivered to and receipted for at the
address of such Partner or the General Partner, as the case may be, specified as
aforesaid.
SECTION 9.7. Counterparts. This Agreement may be executed in
any number of counterparts, all of which together shall constitute a single
instrument.
SECTION 9.8. Entire Agreement. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or, referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 9.9. Amendments. This Agreement may be amended only
pursuant to a written Partner Consent; provided that no such amendment may
convert a
29
Limited Partner to a General Partner or cause a Limited Partner to have personal
liability for the obligations of the Partnership without the consent of the
affected Limited Partner. To the extent that any amendment is so approved, it
shall be evidenced by an amendment to this Agreement in writing executed by
Blackstone and the General Partner (and if required by the immediately preceding
sentence, shall also be executed by any affected Limited Partner).
SECTION 9.10. Blackstone Investment. Blackstone and its
Affiliates have provided to the Private Fund an initial contribution of $1.5
million. Blackstone will maintain this investment for a minimum of one year from
the date hereof, subject to the terms of the Private Fund's partnership
agreement and the continued participation of the Mehta and Isaly Partners in the
business of the Partnership.
SECTION 9.11. Section Titles. Section titles are for
descriptive purposes only and shall not control or alter the meaning of this
Agreement as set forth in the text hereof.
SECTION 9.12. Representations and Warranties. (a) Each Partner
represents, warrants and covenants to each other Partner and to the Partnership
that:
(i) such Partner, if not a natural Person, is duly formed and
validly existing under the laws of the jurisdiction of its organization
with full power and authority to conduct its business to the extent
contemplated in this Agreement;
(ii) this Agreement has been duly authorized, executed and
delivered by such Partner and constitutes the valid and legally binding
agreement of such Partner enforceable in accordance with its terms
against such Partner except as enforceability thereof may be limited by
bankruptcy, insolvency, moratorium and other similar laws relating to
creditors' rights generally, by general equitable principles and by an
implied covenant of good faith and fair dealing;
(iii) the execution and delivery of this Agreement by such
Partner and the performance of its duties and obligations hereunder do
not result in a breach of any of the terms, conditions or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, credit agreement, note or other evidence of indebtedness, or any
lease or other agreement, or any license, permit, franchise or
certificate, to which such Partner is a party or by which it is bound
or to which its properties are subject, or require any authorization or
approval under or pursuant to any of the foregoing, or violate any
statute, regulation, law, order, writ, injunction, judgment or decree
to which such Partner is subject;
(iv) such Partner is not in default (nor has any event
occurred which with notice, lapse of time, or both, would constitute a
default) in the performance of any obligation, agreement or condition
contained in any indenture, mortgage, deed of trust, credit agreement,
note or other evidence of indebtedness or any lease or other
30
agreement, or any license, permit, franchise or certificate, to which
it is a party or by which it is bound or to which the properties of it
are subject, nor is it in violation of any statute, regulation, law,
order, writ, injunction, judgment or decree to which it is subject,
which default or violation would materially adversely affect such
Partner's ability to carry out its obligations under this Agreement;
(v) there is no litigation, investigation or other proceeding
pending or, to the knowledge of such Partner, threatened against such
Partner or any of its Affiliates which, if adversely determined, would
materially adversely affect such Partner's ability to carry out its
obligations under this Agreement; and
(vi) no consent, approval or authorization of, or filing,
registration or qualification with, any court or governmental authority
on the part of such Partner is required for the execution and delivery
of this Agreement by such Partner and the performance of its
obligations and duties hereunder, except as may be required in
connection with registration of the Partnership or such Partner under
federal commodities and securities laws.
(b) Except as otherwise provided in this Agreement, CCM
represents, warrants and covenants to Blackstone that (i) the day-to-day
operations of the Partnership will be managed by and under the direction of
Samuel D. Isaly and Viren Mehta and
31
(ii) Samuel D. Isaly and Viren Mehta will at all times own, directly or
indirectly, all of the capital stock of CCM.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first above written.
GENERAL PARTNER:
CADUCEUS CAPITAL MANAGEMENT, INC.
By: /s/ Samuel D. Isaly
- ---------------------------------
Name: Samuel D. Isaly
Title: President
LIMITED PARTNERS:
BLACKSTONE ALTERNATIVE ASSET
MANAGEMENT L.P.,
By: /s/ Mark J. Kenyon
- ---------------------------------
Name:
Title:
/s/ Samuel D. Isaly
- ---------------------------------
Samuel D. Isaly
/s/ Viren Mehta
- ---------------------------------
Viren Mehta
SCHEDULE A
PARTNERS OF THE PARTNERSHIP
Profit Sharing
Percentage as of
General Partner Address November 1, 1993
- --------------- ------- ----------------
Caduceus Capital 41 Madison Avenue 1.00%
Management, Inc. 40th Floor
New York, New York 10010
Profit Sharing
Percentage as of
Limited Partner Address November 1, 1993
- --------------- ------- ----------------
Blackstone 118 North Bedford Road 40.0%
Alternative Mount Kisco, NY 10549
Asset Management L.P.
Samuel D. Isaly c/o Caduceus Capital 29.5%
Management, Inc.
41 Madison Avenue
40th Floor
New York, New York 10010
Viren Mehta c/o Caduceus Capital 29.5%
Management, Inc.
41 Madison Avenue
40th Floor
New York, New York 10010
WORLDWIDE HEALTH SCIENCES PORTFOLIO
INVESTMENT ADVISORY AGREEMENT Exhibit D.
AGREEMENT made this 24th day of June, 1996, between Worldwide
Health Sciences Portfolio, a New York trust (the "Trust") and G/A Capital
Management, Inc., a Delaware corporation (the "Adviser").
1. Duties of the Adviser. The Trust hereby employs the Adviser
to act as investment adviser for and to manage the investment and reinvestment
of the assets of the Trust, subject to the supervision of the Trustees of the
Trust, for the period and on the terms set forth in this Agreement.
The Adviser hereby accepts such employment and undertakes to
afford to the Trust the advice and assistance of the Adviser's organization in
the choice of investments and in the purchase and sale of securities for the
Trust and to furnish for the use of the Trust office space and all necessary
office facilities, equipment and personnel for servicing the investments of the
Trust and to pay the salaries and fees of all officers and Trustees of the Trust
who are members of the Adviser's organization and all personnel of the Adviser
performing services relating to research and investment activities. The Adviser
shall for all purposes herein be deemed to be independent contractors and shall,
except as otherwise expressly provided or authorized, have no authority to act
for or represent the Trust in any way or otherwise be deemed an agent of the
Trust.
The Adviser shall provide the Trust with such investment
management and supervision as the Trust may from time to time consider necessary
for the proper supervision of the Trust. As investment adviser to the Trust, the
Adviser shall furnish continuously an investment program and shall determine
from time to time what securities and other investments shall be acquired,
disposed of or exchanged and what portion of the Trust's assets shall be held
uninvested, subject always to the applicable restrictions of the Declaration of
Trust, By-Laws and registration statement of the Trust under the Investment
Company Act of 1940, all as from time to time amended. Should the Trustees of
the Trust at any time, however, make any specific determination as to investment
policy for the Trust and notify the Adviser thereof in writing, the Adviser
shall be bound by such determination for the period, if any, specified in such
notice or until similarly notified that such determination has been revoked. The
Adviser shall take, on behalf of the Trust, all actions which they deem
necessary or desirable to implement the investment policies of the trust.
The Adviser shall place all orders for the purchase or sale of
portfolio securities for the account of the Trust either directly with the
issuer or with brokers or dealers selected by the Adviser, and to that end the
Adviser is authorized as the agent of the Trust to give instructions to the
custodian of the Trust as to deliveries of securities and payments of cash for
the account of the Trust. In connection with the selection of such
2
brokers or dealers and the placing of such orders, the Adviser shall use its
best efforts to seek to execute security transactions at prices which are
advantageous to the Trust and (when a disclosed commission is being charged) at
reasonably competitive commission rates. In selecting brokers or dealers
qualified to execute a particular transaction, brokers or dealers may be
selected who also provide brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934) to the Adviser
and the Adviser is expressly authorized to pay any broker or dealer who provides
such brokerage and research services a commission for executing a security
transaction which is in excess of the amount of commission another broker or
dealer would have charged for effecting that transaction if the Adviser
determines in good faith that such amount of commission is reasonable in
relation to the value of the brokerage and research services provided by such
broker or dealer, viewed in terms of either that particular transaction or the
overall responsibilities which the Adviser and its affiliates have with respect
to accounts over which they exercise investment discretion. Subject to the
requirement set forth in the second sentence of this paragraph, the Adviser is
authorized to consider, as a factor in the selection of any broker or dealer
with whom purchase or sale orders may be placed, the fact that such broker or
dealer has sold or is selling shares of any one or more investment companies
sponsored by the Adviser, Eaton Vance Management or their affiliates or shares
of any other investment company investing in the Trust.
The Adviser shall not be responsible for providing certain
special administrative services to the Trust under this Agreement. Eaton Vance
Management, in its capacity as Administrator of the Trust, shall be responsible
for providing such services to the Trust under the Trust's separate
Administration Agreement with the Administrator.
2. Compensation of the Adviser. For the services, payments and
facilities to be furnished hereunder by the Adviser, the Adviser shall be
entitled to receive from the Trust a fee computed daily and payable monthly at
an annual rate of 1.00% of the Trust's average daily net assets up to $30
million of such assets, 0.90% of the next $20 million of such assets, and 0.75%
on such assets in excess of $50 million.
After 12 months, the basic advisory fee is subject to upward
or downward adjustment depending upon whether, and to what extent, the
investment performance of the Trust differs by at least one percentage point
from the record of the Standard & Poor's Index of 500 Common Stocks over the
same period. Each percentage point difference is multiplied by a performance
adjustment rate of 0.025%. The maximum adjustment plus/minus is 0.25%. One
twelfth (1/12) of this adjustment is applied each month to the average daily net
assets of the Trust over the entire performance period. This adjustment shall be
based on a rolling period of up to and including the most recent 36 months.
Trust performance shall be total return as computed under Rule 482 under the
Securities Act of 1933.
3
Such advisory fee shall be paid monthly in arrears on the last
business day of each month. The Trust's net asset value shall be computed in
accordance with the Declaration of Trust of the Trust and any applicable votes
and determinations of the Trustees of the Trust. In case of initiation or
termination of the Agreement during any month, the fee for that month shall be
based on the number of calendar days during which it is in effect.
The Adviser may, from time to time, waive all or a part of the
above compensation to which it is entitled hereunder.
3. Allocation of Charges and Expenses. It is understood that
the Trust will pay all expenses other than those expressly stated to be payable
by the Adviser hereunder, which expenses payable by the Trust shall include,
without implied limitation, (i) expenses of maintaining the Trust and continuing
its existence, (ii) registration of the Trust under the Investment Company Act
of 1940, (iii) commissions, fees and other expenses connected with the
acquisition, holding and disposition of securities and other investments, (iv)
auditing, accounting and legal expenses, (v) taxes and interest, (vi)
governmental fees, (vii) expenses of issue, sale, and redemption of Interests in
the Trust, (viii) expenses of registering and qualifying the Trust and Interests
in the Trust under federal and state securities laws and of preparing and
printing registration statements or other offering statements or memoranda for
such purposes and for distributing the same to Holders and investors, and fees
and expenses of registering and maintaining registrations of the Trust and of
the Trust's placement agent as broker-dealer or agent under state securities
laws, (ix) expenses of reports and notices to Holders and of meetings of Holders
and proxy solicitations therefor, (x) expenses of reports to governments
officers and commissions, (xi) insurance expenses, (xii) association membership
dues, (xiii) fees, expenses and disbursements of custodians and subcustodians
for all services to the Trust (including without limitation safekeeping of
funds, securities and other investments, keeping of books, accounts and records,
and determination of net asset values, book capital account balances and tax
capital account balances), (xiv) fees, expenses and disbursements of transfer
agents, dividend disbursing agents, Holder servicing agents and registrars for
all services to the Trust, (xv) expenses for servicing the account of Holders,
(xvi) any direct charges to Holders approved by the Trustees of the Trust,
(xvii) compensation and expenses of Trustees of the Trust who are not members of
one of the Adviser's organization, and (xviii) such non-recurring items as may
arise, including expenses incurred in connection with litigation, proceedings
and claims and the obligation of the Trust to indemnify its Trustees, officers
and Holders with respect thereto.
4. Other Interests. It is understood that Trustees and
officers of the Trust and Holders of Interests in the Trust are or may be or
become interested in the Adviser as trustees, shareholders or otherwise and that
trustees, officers and shareholders of the Adviser are or may be or become
similarly interested in the Trust, and that the Adviser may be or become
interested in the Trust as Holder or otherwise. It is also understood that
trustees,
4
officers, employees and shareholders of the Adviser may be or become interested
(as directors, trustees, officers, employees, shareholders or otherwise) in
other companies or entities (including, without limitation, other investment
companies) which the Adviser or Eaton Vance Management may organize, sponsor or
acquire, or with which it may merge or consolidate, and that the Adviser or its
subsidiaries or affiliates may enter into advisory or management agreements or
other contracts or relationships with such other companies or entities.
5. Limitation of Liability of the Adviser. The services of the
Adviser to the Trust are not to be deemed to be exclusive, the Adviser being
free to render services to others and engage in other business activities. In
the absence of willful misfeasance, bad faith, gross negligence or reckless
disregard of obligations or duties hereunder on the part of the Adviser, the
Adviser shall not be subject to liability to the Trust or to any Holder of
Interests in the Trust for any act or omission in the course of, or connected
with, rendering services hereunder or for any losses which may be sustained in
the acquisition, holding or disposition of any security or other investment.
6. Sub-Investment Adviser. The Adviser may employ one or more
sub- investment advisers from time to time to perform such of the acts and
services of the Adviser, including the selection of brokers or dealers to
execute the Trust's portfolio security transactions, and upon such terms and
conditions as may be agreed upon between the Adviser and such investment adviser
and approved by the Trustees of the Trust, all as permitted by the Investment
Company Act of 1940.
7. Duration and Termination of this Agreement. This Agreement
shall become effective upon the date of its execution, and, unless terminated as
herein provided, shall remain in full force and effect through and including
February 28, 1997 and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance after February 28, 1997 is
specifically approved at least annually (i) by the Board of Trustees of the
Trust or by vote of a majority of the outstanding voting securities of the Trust
and (ii) by the vote of a majority of those Trustees of the Trust who are not
interested persons of the Adviser or the Trust cast in person at a meeting
called for the purpose of voting on such approval.
Any party hereto may, at any time on sixty (60) days' prior
written notice to the others, terminate that party's obligations hereunder, or,
in the case of the Trust, terminate this Agreement in its entirety, without the
payment of any penalty, by action of Trustees of the Trust or the trustees or
directors of the Adviser, as the case may be, and the Trust may, at any time
upon such written notice to the Adviser, terminate this Agreement with respect
to the Adviser by vote of a majority of the outstanding voting securities of the
Trust. This Agreement shall terminate automatically in the event of its
assignment.
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8. Amendments of the Agreement. This Agreement may be amended
by a writing signed by all parties hereto, provided that no amendment to this
Agreement shall be effective until approved (i) by the vote of a majority of
those Trustees of the Trust who are not interested persons of an Adviser or the
Trust cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by vote of a majority of the outstanding voting securities of
the Trust.
9. Limitation of Liability. The Adviser expressly acknowledge
the provision in the Declaration of Trust of the Trust (Section 5.2 and 5.6)
limiting the personal liability of the Trustees and officers of the Trust, and
the Adviser hereby agrees that it shall have recourse to the Trust for payment
of claims or obligations as between the Trust and the Adviser arising out of
this Agreement and shall not seek satisfaction from any Trustee or officer of
the Trust.
10. Certain Definitions. The terms "assignment" and
"interested persons" when used herein shall have the respective meanings
specified in the Investment Company Act of 1940 as now in effect or as hereafter
amended subject, however, to such exemptions as may be granted by the Securities
and Exchange Commission by any rule, regulation or order. The term "vote of a
majority of the outstanding voting securities" shall mean the vote, at a meeting
of Holders, of the lesser of (a) 67 per centum or more of the Interests in the
Trust present or represented by proxy at the meeting if the Holders of more than
50 per centum of the outstanding Interests in the Trust are present or
represented by proxy at the meeting, or (b) more than 50 per centum of the
outstanding Interests in the Trust. The terms
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"Holders" and "Interests" when used herein shall have the respective meanings
specified in the Declaration of Trust of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day and year first above written.
WORLDWIDE HEALTH SCIENCES PORTFOLIO
By: /s/ James B. Hawkes
-------------------------------
President
G/A CAPITAL MANAGEMENT, INC.
By: /s/ Samuel D. Isaly
-------------------------------
President
Exhibit E.
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JOINT FILING AGREEMENT
The undersigned hereby agree that the Statement on Schedule 13D, dated
January 28, 1997, (the "Schedule 13D"), with respect to the Common Stock, par
value $0.0001 per share, of Alexion Pharmaceuticals, Inc. is, and any amendments
thereto executed by each of us shall be, filed on behalf of each of us pursuant
to and in accordance with the provisions of Rule 13d-1(f) under the Securities
and Exchange Act of 1934, as amended, and that this Agreement shall be included
as an Exhibit to the Schedule 13D and each such amendment. Each of the
undersigned agrees to be responsible for the timely filing of the Schedule 13D
and any amendments thereto, and for the completeness and accuracy of the
information concerning itself contained therein. This Agreement may be executed
in any number of counterparts, all of which taken together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the 28th day of January, 1997.
SAMUEL D. ISALY VIREN MEHTA
/s/ Samuel D. Isaly /s/ Viren Mehta
- -------------------------- --------------------------
PHARMA/wHEALTH M and I INVESTORS, INC.
By: /s/ Mirko von Restorf By: /s/ Samuel D. Isaly
- -------------------------- ------------------------
Name: Mirko von Restorff Name: Samuel D. Isaly
Title: Chairman Title: President
CADUCEUS CAPITAL, L.P. CADUCEUS CAPITAL MANAGEMENT, INC.
By: /s/ Samuel D. Isaly By: /s/ Samuel D. Isaly
- -------------------------- -----------------------
Name: Samuel D. Isaly Name: Samuel D. Isaly
Title: Title: President
Exhibit E.
----------
WORLDWIDE HEALTH MEHTA & ISALY ASSET
SCIENCES PORTFOLIO MANAGEMENT, INC.
By: /s/ Eric G. Woodbury By: /s/ Samuel D. Isaly
- -------------------------- -----------------------
Name: Eric G. Woodbury Name: Samuel D. Isaly
Title: Assistant Secretary Title: President