Business-Combination Transaction Communication — Rule 425 Filing Table of Contents
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This Asset Exchange
Agreement (the “Agreement”),
dated as of June 3, 2009, is entered into by and among RAMIUS, LLC (“Ramius”),
a Delaware limited liability company,
HVB ALTERNATIVE ADVISORS LLC (“Transferor”), a Delaware limited
liability company and an indirect wholly-owned subsidiary of HVB AG, BAYERISCHE
HYPO- UND VEREINSBANK AG (“HVB AG”), a German corporation, COWEN GROUP INC., a Delaware corporation,
and following, the consummation of the transactions contemplated by the
Transaction Agreement, the successor to JV Acquiror (“Cowen”),
LEXINGTONPARK PARENT CORP., a Delaware corporation (“New Parent”),
LEXINGTON MERGER CORP., a Delaware corporation and direct wholly-owned
subsidiary of New Parent (“JV Acquiror” and, together with New Parent,
collectively the “New Parent Parties”).
RECITALS
WHEREAS, Transferor is a member of Ramius Fund of Funds Group LLC (the “JV”),
a Delaware limited liability company, and as such owns an interest therein (the
“JV Interest”) which interest comprises all of the HVB Sharing
Percentage (as defined in the JV LLC Agreement);
WHEREAS, Ramius has entered into a Transaction Agreement and Agreement
and Plan of Merger, dated the date hereof (as the same be hereafter amended in
accordance with its terms, the “Transaction Agreement”) with, among
other parties thereto, the New Parent Parties providing for, among other
things, an acquisition of substantially all of the assets (including Ramius’s
interest in the JV) and liabilities of Ramius (the “Ramius Asset Exchange”)
by Park
Exchange LLC, a Delaware limited liability company and a direct wholly-owned
subsidiary of New Parent, in exchange for shares of Class A Common
Stock, $0.01 par value per share, of New Parent (the “Class A Common
Stock”);
WHEREAS, the parties hereto desire that, at the closing under the
Transaction Agreement, subject to the satisfaction or waiver of the conditions
precedent set forth herein, Transferor transfer to JV Acquiror, and JV Acquiror
acquire from the Transferor, the JV Interest (the “JV Interest Exchange”)
and New Parent, on behalf of JV Acquiror, shall deliver to Transferor the
Exchange Consideration (as defined below);
WHEREAS, the parties hereto desire that, as a result of the JV Interest
Exchange, certain provisions of the Amended and Restated Limited Liability
Company Agreement, dated as of December 31, 2004 (the “JV LLC Agreement”)
be terminated as to Transferor but that other agreements between Transferor and
its Affiliates on the one hand and Ramius and its Affiliates on the other be
continued;
WHEREAS, Subsidiaries (including UniCredit, the “UniCredit Parties”)
of UniCredit SpA, the parent of Transferor (“UniCredit”), and certain
Affiliates of Ramius (including Ramius, the “Ramius Parties”), in each
case that are parties to the Ramius Revolving Credit Agreement, the Ramius
Investment Management Agreement, the JV Secured Revolving Credit Agreement and
the JV Investment Management Agreement have entered into certain
agreements amending such agreements, including the AuM Amendment
Agreements (together, the “Amendments”); and
WHEREAS, for U.S. federal income tax purposes, the parties intend that
the JV Interest Exchange be treated as a taxable exchange in which gain or loss
is recognized.
NOW, THEREFORE, the
parties, in consideration of their mutual promises and intending to be legally
bound, agree as follows:
ARTICLE I.
DEFINITIONS AND USAGE
Section 1.1.Definitions. For purposes of this Agreement, the following
terms and variations thereof have the meanings specified or referred to in this
Section 1.1:
“Acquirors” — as
defined in the caption to this Agreement.
“Adjusted Number of
Shares” — as defined in Section 2.1(a).
“Affiliate” — means
, with respect to any Person, any other Person that, directly or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person, and the term “control” (including
the terms “controlled by” and “under common control with”) means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through ownership of voting
securities, by contract or otherwise; provided, that, for purposes of
this Agreement no UniCredit Party nor any of their respective controlled
affiliates shall be deemed to be Affiliates of Ramius and none of Ramius or any
of its Subsidiaries shall be deemed to be Affiliates of any UniCredit Party.
“Agreement” — as defined in the
caption to this Agreement.
“Amendments” — as
defined in the Recitals, such term to include the Ramius Security Agreement (as
defined therein).
“Ancillary Agreements”
— means the Amendments, the Assignment, the Fourth Amended and Restated Ramius
LLC Agreement, the Joinder Agreement, the Registration Rights Agreement and, to
the extent applicable, the JV Note and the JV Note Security Agreement.
“Assignment” — as defined in Section 2.3(a)(i).
“AuM Amendment
Agreements” — means that certain Second Amendment to the Investment Reporting
Agreement by and between HVB AG and Ramius HVB Partners, LLC and that certain
Amendment to the Amended and Restated Investment Management Agreement by and
between Bank Austria Cayman Islands Limited and Ramius, each dated as of the
date hereof.
“Base Number of Shares”
— as defined in Section 2.1(a).
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“BHC Act” — the
Bank Holding Company Act of 1956, as amended.
“Breach” — any breach of, or any
inaccuracy in, any representation or warranty or any breach of, or failure to
perform or comply with, any covenant or obligation, in or of this Agreement or
any other Contract, or any event which with the passing of time or the giving
of notice, or both, would constitute such a breach, inaccuracy or failure.
“Change of Control”
— the occurrence of any merger, consolidation, tender offer, or
any other transaction resulting in the stockholders of New Parent immediately
before such transaction owning less than a majority of the aggregate voting
power of the resultant entity or any sale of all or substantially all of the
assets of New Parent;
“Class A Common
Stock” — as defined in the Recitals.
“Class B Common
Stock” — means Class B Common Stock, par value $0.01 per share, of New
Parent.
“Closing” — as defined in Section 2.2.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Common Stock” —
means the Common Stock of New Parent.
“Common Stock
Consideration” — as defined in Section 2.1(a).
“Contract” — any contract, lease
or other agreement (whether written or oral).
“Cowen” — as
defined in the caption to this Agreement.
“Debt Consideration”
— as defined in Section 2.1(a).
“Encumbrance” — any lien, option,
pledge, security interest, mortgage, right of way, easement, encroachment,
servitude, right of first option, right of first refusal or similar
restriction; provided that, in respect of the
JV Interest, such term shall not include restrictions pursuant to the JV LLC
Agreement or state or federal securities laws, and in respect of the Exchange Consideration,
such term shall not include restrictions pursuant to federal or state
securities laws.
“Exchange Act” — means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the SEC.
“Exchange Consideration”
— as defined in the Recitals.
“Governing Documents” — with
respect to any particular entity, (a) if a corporation, the articles or
certificate of incorporation and the bylaws; (b) if a general partnership,
the partnership agreement and any statement of partnership; (c) if a
limited partnership, the limited
partnership agreement and the certificate of limited partnership; (d) if a
limited liability company, the certificate of formation and operating
agreement; (e) if another
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type of Person, any other
charter or similar document adopted or filed in connection with the creation,
formation or organization of the Person; (f) all equityholders’
agreements, voting agreements, voting trust agreements or other similar
agreements or documents relating to the organization, management or operation
of any Person; and (g) any amendment or supplement to any of the
foregoing.
“Governmental Authorization” — any
consent, license, registration or permit issued, granted, given or otherwise
made available by or under the authority of any Governmental Body or pursuant
to any Law.
“Governmental
Body”— any international, federal,
state, local, municipal, foreign or other governmental or quasi-governmental
authority of any nature (including any agency, branch, department, board,
commission, court, tribunal or other entity exercising governmental or
quasi-governmental powers) or exercising, or entitled or purporting to
exercise, any administrative, executive, judicial, legislative, police,
regulatory or taxing authority or power.
“HVB AG” — as
defined in the caption to this Agreement.
“HVB Solicitation
Agreement” — means that certain Solicitation Agreement, dated
as of December 31, 2004, by and between Ramius HVB Partners, LLC and HVB
AG.
“Insider Trading Policy”
— means that certain Insider Trading Policy of New Parent attached as Exhibit B
hereto.
“Joinder Agreement”
— the Joinder Agreement to the JV LLC Agreement in the form of Exhibit A
hereto.
“JV” — as defined in
the Recitals.
“JV Acquiror” — as
defined in the caption to this Agreement.
“JV Funds” — means
investment funds managed by the JV or its Subsidiaries.
“JV Interest” — as
defined in the Recitals.
“JV Interest Exchange”
— as defined in the Recitals.
“JV Investment
Management Agreement” — means the Investment Reporting Agreement, dated as
of July 29, 2005 between the JV and HVB AG, as thereafter amended
(including the date hereof).
“JV LLC Agreement” — as defined in
the Recitals.
“JV Note” — means
the promissory note, in a principal amount equal to the JV Principal Amount, in
the form attached as Exhibit C hereto.
“JV Note Security
Agreement” — means the security agreement in a form substantially identical
to the Security Agreement attached to the Secured Revolving
Credit
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Agreement dated as of June 3, 2009, by and among Ramius, as
borrower, and Bayerische Hypo-und Vereinsbank AG, New York Branch as
administrative agent, issuing bank and lender, to be executed and delivered at Closing pursuant to the JV Note
if the New Parent Revolver Execution does not occur.
“JV Principal Amount”
— means $10,370,032, as such amount shall be adjusted if required pursuant to Section
2.1(b).
“JV Secured Revolving
Loan Agreements” — means those agreements listed on Schedule 1.1-A hereto.
“Law” — means
any foreign, federal, state, or local law, statute, code, ordinance, rule,
regulation or other requirement.
“Lender” — means
Bayerische Hypo -un Vereinsbank AG, New York Branch.
“Liability” — with respect to any
Person, any liability or obligation of such Person of any kind, character or
description, whether known or unknown, absolute or contingent, accrued or
unaccrued, disputed or undisputed, liquidated or unliquidated, secured or
unsecured, joint or several, due or to become due, vested or unvested,
executory, determined, determinable or otherwise, and whether or not the same
is required to be accrued on the financial statements of such Person.
“Lock-up Termination
Event” — means any of the following: (a) a material
breach by Ramius of any of the following agreements: the Ramius Revolving
Credit Agreement (or any replacement facility provided by the Lender), the JV
Secured Revolving Credit Agreement, this Agreement, the Investment Reporting Agreement by
and between HVB AG and Ramius HVB Partners, LLC, as amended, the Ramius
Investment Management Agreement, as amended, the JV Investment Management
Agreement, as amended, the Fourth Amended and Restated Ramius LLC Agreement
and, in each case if applicable, the JV Note and the New Parent Revolver, which
breach has remained uncured for a period of 10 days after receipt by Ramius of
written notice of such breach; (b) unless the UniCredit Parties and their
Affiliates beneficially own, in the aggregate, less than 4.9% of the
outstanding Common Stock throughout any consecutive ninety (90) day period, the
failure of the Managing Member to vote all of the shares of Class A Common
Stock held by Ramius in favor of the election to the board of directors of New
Parent of the Board Designee; (c) if the Managing Member ceases to be
controlled by at least two of Peter A. Cohen, Morgan B. Stark, Thomas W.
Strauss and Jeffrey Solomon; or (d) a Change of Control.
“Managing Member” —
as defined in the Ramius LLC Agreement.
“Material Adverse Effect” — means with respect to
Ramius or Transferor, as the case may be, any event, change, circumstance or
development which has or is reasonably likely to have a material adverse effect
on (i) the financial condition, results of operations or business of such
party and its Subsidiaries taken as a whole; provided, however,
that, with respect to clause (i), the term “Material Adverse Effect” shall not
include any effects resulting from (A) changes, after the date hereof, in
GAAP or regulatory accounting requirements applicable generally to companies in
the industries in which such party and its Subsidiaries operate,
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(B) changes, after the date hereof, in laws, rules, regulations or
the interpretation of laws, rules or regulations by Governmental Bodies of
general applicability to companies in the industries in which such party and
its Subsidiaries operate, (C) actions or omissions taken with the prior
written consent of the other party or expressly required by this Agreement, (D) changes
in global, national or regional political conditions (including acts of
terrorism or war) or general business, economic or market conditions, including
changes generally in prevailing interest rates, currency exchange rates, credit
markets and price levels or trading volumes in the United States or foreign
securities markets, in each case generally affecting the industries in which
such party or its Subsidiaries operate and including changes to any previously
correctly applied asset marks resulting therefrom, (E) the execution of
this Agreement or the public disclosure of this Agreement or the transactions
contemplated hereby, including losses of employees to the extent resulting
therefrom, (F) failure, in and of itself, to meet earnings projections,
but not including any underlying causes thereof, (G) changes
in the trading price of a party’s common stock, in and of itself, but not
including any underlying causes or (H) in the case of Ramius and its
Subsidiaries, withdrawals from the Funds that are consistent with withdrawals
from the Funds over the past twelve months, except, with respect to
clauses (A), (B) and (D), to the extent that the effects of such change
are materially and disproportionately adverse to the financial condition,
results of operations or business of such party and its Subsidiaries, taken as
a whole, as compared to other companies in the industry in which such party and
its Subsidiaries operate or (ii) the ability of such party to timely
consummate the transactions contemplated by this Agreement.
“New Parent” — as
defined in the caption to this Agreement.
“New Parent Parties” — as defined in the caption to this
Agreement.
“New Parent Revolver” — means the $25,000,000 secured revolving credit
facility that may be entered into by the Lender and New Parent on or
immediately prior to the Closing.
“New Parent Revolver
Execution” — as
defined in Section 2.1(a).
“Order” — any order, injunction,
judgment, decree, ruling, assessment or arbitration award of any Governmental
Body or arbitrator.
“Ordinary Course of
Business” — means, with respect to any Person, the ordinary
and usual course of business of such Person consistent with its past practice
through the date hereof.
“Person” — any
individual, partnership, limited liability company, joint venture, corporation,
trust, government (or agencies or political subdivisions thereof) and other
association or entity.
“Ramius” — as
defined in the caption to this Agreement.
“Ramius Asset Exchange” — as defined in the Recitals.
“Ramius Funds” — means investment funds managed by Ramius or its
Subsidiaries.
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“Ramius Investment Management Agreement” — means the Amended and
Restated Investment Management Agreement, dated as of June 3, 2003,
between Ramius (f/k/a Ramius Capital Group, LLC) and Bank Austria Cayman
Islands Limited, as hereafter amended (including on the date hereof).
“Ramius LLC Agreement” — means the Third Amended and Restated
Limited Liability Company Agreement of Ramius, dated as of January 1,2007.
“Ramius Parties” — as defined in the Recitals.
“Ramius Revolving Credit Agreement” — means the Revolving Loan
Agreement, dated as of June 3, 2003, by and between Ramius (f/k/a Ramius
Capital Group, LLC) and BA Alpine Holdings, Inc., as thereafter amended
(including on the date hereof).
“Registration Rights
Agreement” — means the Registration Rights Agreement in the form of Exhibit D
hereto.
“SEC” — means the United
States Securities and Exchange Commission.
“Securities Act” — the Securities
Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
“Subsidiary” — with respect to any
Person (the “Owner”),
any corporation or other Person of which securities or other interests having
the power to elect a majority of that corporation’s or other Person’s board of
directors or similar governing body, or otherwise having the power to direct
the business and policies of that corporation or other Person (other than
securities or other interests having such power only upon the happening of a
contingency that has not occurred), are held by the Owner or one or more of its
Subsidiaries; provided that none of the JV Funds or Ramius Funds shall be deemed
to be a Subsidiary of Ramius or the JV.
“Third Party Investors” — as
defined in Section 8.1.
“Transaction Agreement”
— as defined in the Recitals.
“Transferor” — as
defined in the caption to this Agreement.
“UniCredit” — as
defined in the Recitals.
“UniCredit Consent”
— means the Consent, dated the date hereof, of UniCredit and certain of its
Affiliates.
“UniCredit Parties”
— as defined in the Recitals.
Section 1.2.Usage.
(a) Interpretation.
In this Agreement, unless a clear contrary intention appears:
(i) the singular number includes the
plural number and vice versa;
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(ii) reference to any Person includes such Person’s successors and
assigns but, if applicable, only if such successors and assigns are not
prohibited by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement, document or instrument means such
agreement, document or instrument as amended or modified and in effect from
time to time in accordance with the terms thereof;
(v) reference to any Law means such Law as amended, modified,
codified, replaced or reenacted, in whole or in part, and in effect from time
to time, including rules and regulations promulgated thereunder, and
reference to any section or other provision of any Law means that provision of
such Law from time to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such section or other
provision;
(vi) “hereunder,”“hereof,”“hereto,” and words of similar import shall be deemed
references to this Agreement as a whole and not to any particular Article, Section or
other provision hereof;
(vii) “including” (and
with correlative meaning “include”)
means including without limiting the generality of any description preceding
such term;
(viii) with respect to the determination of any period of time, “from” means “from and including” and “to”
means “to but excluding”; and
(ix) references to documents, instruments or agreements shall be deemed
to refer as well to all addenda, Exhibits, schedules or amendments thereto.
(b) Legal Representation of the Parties. This Agreement was negotiated by the parties
with the benefit of legal representation, and any rule of construction or
interpretation otherwise requiring this Agreement to be construed or
interpreted against any party shall not apply to any construction or
interpretation hereof.
(a) Upon
the terms and subject to the conditions set forth in this Agreement, at the
Closing, Transferor shall transfer, convey, assign, and deliver to JV Acquiror
the JV Interest, free and clear of all Encumbrances, and New Parent shall, and
Ramius and Cowen shall cause New Parent, on behalf of JV Acquiror, to issue and
deliver to Transferor, or its designee in accordance with Section 11.8, (i) good
valid title to 2,713,882 shares (the “Base Number of Shares”) of Class A
Common Stock (subject to adjustment as provided below), free and clear of
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all
Encumbrances (other than pursuant to this Agreement) (the “Common Stock
Consideration”), and (ii) the JV Note and the JV Note Security
Agreement, provided, however, that if the New Parent Revolver has been entered
into by New Parent and the Lender on or immediately prior to the Closing (the “New
Parent Revolver Execution”), then New Parent shall not execute and deliver
the JV Note and the JV Note Security Agreement, but shall instead borrow under
the New Parent Revolver an amount equal to the JV Principal Amount and shall
deliver to Transferor the JV Principal Amount in cash, by wire transfer of
immediately available funds (the “Debt Consideration” and, together with
the Common Stock Consideration, the “Exchange Consideration”).
(b) In
the event that the Base Number of Shares would exceed 4.9% of the issued and
outstanding shares of Class A Common Stock immediately following the
consummation of the transactions contemplated by the Transaction Agreement and
the JV Interest Exchange, (i) the number of shares that constitute the Common
Stock Consideration shall be adjusted downward so that the Transferor receives
a number of shares of Class A Common Stock equal to 4.9% of the issued and
outstanding shares of Class A Common Stock (the “Adjusted Number of
Shares”) and (ii) the JV Principal Amount shall be increased by an
amount equal to the product of (x) $8.6555 and (y) the excess of (I) the
Base Number of Shares over (II) the Adjusted Number of Shares.
Section 2.2.Closing. Subject to the conditions set forth in this
Agreement, the consummation of the transactions provided for in this Agreement
(the “Closing”) shall be
held at the time of the closing under the Transaction Agreement at the offices
of Willkie Farr & Gallagher, 787 Seventh Avenue, New York, New York10019, or at such other place as the closing under the Transaction Agreement is
to occur or as the parties hereto shall otherwise agree in writing. Ramius shall provide notice to Transferor of
the date of the closing under the Transaction Agreement at least three business
days in advance. At the Closing, all of
the transactions provided for in this Article II shall be
consummated on a substantially concurrent basis, effective immediately
following the consummation of the Ramius Asset Exchange.
Section 2.3.Closing Obligations. In addition to any other documents to be
delivered under other provisions of this Agreement, at the Closing:
(a) Transferor shall deliver:
(i) To JV Acquiror, an assignment (the “Assignment”)
of all of the JV Interest in the form of Exhibit E hereto, executed by
Transferor;
(ii) the Registration Rights Agreement executed, in respect of the
Exchange Consideration, by the UniCredit Parties that are members of Ramius as
of the Closing and Transferor; and
(iii) if the New Parent Revolver Execution has not occurred, an executed
counterpart to the JV Note, executed by the UniCredit Parties thereto.
(b) New Parent shall, and Ramius, Cowen and JV Acquiror shall cause
New Parent to, deliver to Transferor:
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(i) Duly executed and validly issued
stock certificates in the name of Transferor representing the Common Stock
Consideration;
(ii) on behalf of JV Acquiror, evidence
that the shares of Class A Common Stock included in the Exchange
Consideration have been authorized for listing on the NASDAQ;
(iii) (x) if the New Parent Revolver
Execution has not occurred, the JV Note and the JV Note Security Agreement,
each executed by New Parent and any Subsidiaries party thereto or (y) if
the New Parent Revolver Execution has occurred, the JV Principal Amount in
cash; and
(iv) the Registration Rights Agreement
executed by New Parent.
(c) Ramius shall deliver to New Parent
and Transferor the Registration Rights Agreement executed by Ramius.
(d) JV Acquiror shall deliver to Park
Exchange LLC:
(i) the Joinder Agreement executed by
Acquiror.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF TRANSFEROR
Transferor represents and
warrants to the other parties hereto, both as of the date hereof and as of the
Closing, as follows:
Section 3.1.Organization and Good
Standing. Each of the UniCredit Parties is a
entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, with full corporate power and authority to
conduct its business as it is now being conducted and to own or use the
properties and assets that it purports to own or use.
Section 3.2.Enforceability; Authority; No
Conflict.
(a) This Agreement and the Amendments
constitute the legal, valid and binding obligations of the UniCredit Parties
that are parties thereto, enforceable against each of them in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer or similar laws affecting
the enforcement of creditors’ rights generally and general principles of equity
(whether considered in a proceeding at law or in equity). Upon the execution and delivery by the
applicable UniCredit Parties of the other Ancillary Agreements to which it is a
party, each of such agreements so executed thereby will constitute the legal,
valid and binding obligation of such UniCredit Party, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer or
similar laws affecting the enforcement of creditors’ rights generally and
general principles of equity (whether considered in a proceeding at law or in
equity). Each of the UniCredit Parties has
the requisite right, power and authority to execute and deliver this Agreement
and the
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Ancillary Agreements executed (or to be executed thereby) to which
it is a party, and to perform its obligations under this Agreement and such
Ancillary Agreements, and such action has been duly authorized by all necessary
corporate or limited liability company action.
(b) Neither the execution and delivery
of this Agreement or the applicable Ancillary Agreements by the UniCredit
Parties nor the consummation or performance of any of this Agreement or such
Ancillary Agreements by any of them will, directly or indirectly (with or
without notice or lapse of time):
(i) Breach any provision of any of the
Governing Documents of the UniCredit Party executing or delivering such
agreement;
(ii) Breach any Law or any Order to
which the UniCredit Party executing or delivering such agreement may be
subject; or
(iii) contravene, conflict with or result
in a violation or Breach of any of the terms or requirements of any
Governmental Authorization applicable to the UniCredit Party executing or
delivering such agreement.
Section 3.3.Title.
Transferor owns good and marketable title to the JV Interest, free and
clear of all Encumbrances. The Interest
constitutes the entire equity interest in the JV owned by UniCredit or its
Affiliates.
Section 3.4.No Consents.
No consents or approvals of or filings or registrations with or
notice to any Governmental Body or any other Person are necessary in connection
with (a) the execution and delivery by the UniCredit Parties of this
Agreement and the Ancillary Agreements and (b) the consummation by the
UniCredit Parties of the transactions contemplated by this Agreement and the
Ancillary Agreements.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF RAMIUS
Ramius represents and
warrants to the other parties hereto, both as of the date hereof and as of the
Closing, as follows:
Section 4.1.Organization and Good Standing. Ramius is a limited liability company duly
formed, validly existing and in good standing under the laws of the
jurisdiction of its formation, with full limited liability company power and
authority to conduct its business as it is now being conducted and to own or
use the properties and assets that it purports to own or use.
Section 4.2.Enforceability; Authority; No
Conflict.
(a) This Agreement and the Amendments
constitutes the legal, valid and binding obligations of Ramius, enforceable
against Ramius in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer or similar laws affecting the enforcement of creditors’
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rights generally and general principles of equity (whether
considered in a proceeding at law or in equity). Upon the execution and delivery by Ramius of
the other Ancillary Agreements to which it is a party, each of such agreements
will constitute the legal, valid and binding obligation of Ramius, enforceable
against Ramius in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer or similar laws affecting the enforcement of creditors’ rights
generally and general principles of equity (whether considered in a proceeding
at law or in equity). Ramius has the
requisite right, power and authority to execute and deliver this Agreement and
the Ancillary Agreements executed (or to be executed thereby) to which it is a
party, and to perform its obligations under this Agreement and such Ancillary
Agreements, and such action has been duly authorized by all necessary limited
liability company action.
(b) Neither the execution and delivery
of this Agreement or the applicable Ancillary Agreements by Ramius nor the
consummation or performance of any of this Agreement or such applicable
Ancillary Agreements will, directly or indirectly (with or without notice or
lapse of time):
(i) Breach any provision of any of the
Governing Documents of Ramius;
(ii) Breach any Law or any Order to
which Ramius may be subject; or
(iii) contravene, conflict with or result
in a violation or Breach of any of the terms or requirements of any
Governmental Authorization applicable to Ramius.
Section 4.3. No
Consents. Except as set forth on
Schedule 4.3 hereto and except for the consents of the members of Ramius in
connection with the transactions contemplated by the Transaction Agreement, no
consents or approvals of or filings or registrations with or notice to any
Governmental Body or any other Person are necessary in connection with (A) the
execution and delivery by Ramius of this Agreement or any Ancillary Agreement
and (B) the consummation by Ramius of the transactions contemplated by
this Agreement or any Ancillary Agreement.
ARTICLE V.
REPRESENTATIONS AND
WARRANTIES OF NEW PARENT AND JV ACQUIROR
New
Parent represents and warrants to Transferor, both as of the date hereof and as
of the Closing, as follows:
Section 5.1.Organization and Good Standing.
(a) Both
New Parent and JV Acquiror are corporations duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. Both New Parent and JV Acquiror have the
requisite corporate power and authority to conduct their respective businesses
as they are now being conducted and to own or use the properties and assets
that they purport to own or use.
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Section 5.2.Enforceability; Authority; No
Conflict.
(a) This Agreement and the Amendments
constitute the legal, valid and binding obligations of the New Parent Parties,
enforceable against the New Parent Parties in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer or similar laws affecting the
enforcement of creditors’ rights generally and general principles of equity
(whether considered in a proceeding at law or in equity). Upon the execution and delivery by each of
the New Parent Parties of the other Ancillary Agreements to which it is a
party, each of such agreements will constitute the legal, valid and binding
obligation of such New Parent Party, enforceable against such Person in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer or similar laws
affecting the enforcement of creditors’ rights generally and general principles
of equity (whether considered in a proceeding at law or in equity). Each New Parent Party has the requisite
right, power and authority to execute and deliver this Agreement and the
Ancillary Agreements executed (or to be executed thereby) to which it is a
party, and to perform its obligations under this Agreement and such Ancillary
Agreements, and such action has been duly authorized by all necessary corporate
or limited liability company action, as the case may be.
(b) Neither the execution and delivery
of this Agreement or the applicable Ancillary Agreements by any New Parent
Party nor the consummation or performance of any of this Agreement or such
applicable Ancillary Agreements will, directly or indirectly (with or without
notice or lapse of time):
(i) Breach any provision of any of the
Governing Documents of such Person;
(ii) Breach any Law or any Order to
which such Person may be subject; or
(iii) contravene, conflict with or result
in a violation or Breach of any of the terms or requirements of any Governmental
Authorization applicable to such Person.
(c) No Consents. Except as set forth on Schedule 5.2 hereto,
no consents or approvals of or filings or registrations with or notice to any
Governmental Body or any other Person are necessary in connection with (A) the
execution and delivery by the New Parent Parties of this Agreement and (B) the
consummation by the New Parent Parties of the transactions contemplated by this
Agreement.
Section 5.3.Capitalization. The authorized capital stock of New Parent
will at Closing consist of 250,000,000 shares of Class A Common Stock,
250,000,000 shares of Class B Common Stock, par value $0.01 per share, and
10,000,000 shares of undesignated preferred stock, par value $0.01 per
share. As of the Closing, all of the
issued and outstanding shares of Class A Common Stock issued to Transferor
or its designee in accordance with this Agreement
13
shall have been duly authorized and validly issued and
will be fully paid, nonassessable and will not have been issued in violation of
any applicable Law or Contract.
ARTICLE VI.
CONDITIONS PRECEDENT TO RAMIUS’S, NEW PARENT’S AND JV ACQUIROR’S OBLIGATIONS TO
CLOSE
The obligation of Acquiror
to acquire the JV Interest from Transferor and the obligation of New Parent to
issue the Exchange Consideration to Transferor and for each of Ramius, Acquiror
and New Parent to take the other actions required to be taken by such parties
at the Closing is subject to the satisfaction, at or prior to the Closing, of
each of the following conditions (any of which may be waived by such parties,
in whole or in part):
Section 6.1.Accuracy of Representations. The representations and warranties of
Transferor set forth in this Agreement shall be true and correct in all
respects (without regard to any materiality qualifiers therein) as of the date
hereof and as of the Closing as though made on and as of the Closing, other
than representations and warranties that speak as of another specific date or
time prior to the date hereof (which need only be true and correct as of such
date or time); provided, however, that for purposes of
determining satisfaction of this condition, such representations and warranties
shall be deemed to be true and correct in all respects unless the failure or
failures of such representations and warranties to be so true and correct,
individually or in the aggregate, would have a Material Adverse Effect on
Transferor.
Section 6.2.Performance. Each of the covenants and obligations that Transferor
and HVB AG are required to perform or to comply with pursuant to this Agreement
and each of the covenants and obligations that each of the UniCredit Parties
are required to perform or to comply with pursuant to the Ancillary Agreements,
in each case, at or prior to the Closing, shall have been duly performed and
complied with in all material respects.
Section 6.3. Ramius
Asset Exchange. The transactions
contemplated by the Transaction Agreement, including, without limitation, the
Ramius Asset Exchange, shall have been consummated.
Section 6.4. Ancillary
Agreements. Each of the Ancillary
Agreements shall be in full force and effect.
Section 6.5. No Injunctions or Restraints; Illegality. No order, injunction or decree issued by any
court or agency of competent jurisdiction or other law preventing or making
illegal the consummation of the transactions contemplated by this Agreement
shall be in effect.
ARTICLE VII.
CONDITIONS PRECEDENT TO TRANSFEROR’S OBLIGATION TO CLOSE
The obligation of Transferor
to transfer the JV Interest to JV Acquiror and to accept the Exchange
Consideration and of Transferor and HVB AG to take the other actions required
to be taken thereby at the Closing is subject to the satisfaction, at or prior
to the Closing,
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of each of the following
conditions (any of which may be waived by such parties, in whole or in part):
Section 7.1.Accuracy of Representations. The representations and warranties of Ramius
set forth in this Agreement shall be true and correct in all respects (without
regard to any materiality qualifiers therein) as of the date hereof and as of
the Closing as though made on and as of the Closing, other than representations
and warranties that speak as of another specific date or time prior to the date
hereof (which need only be true and correct as of such date or time); provided,
however, that for purposes of determining satisfaction of this
condition, such representations and warranties shall be deemed to be true and
correct in all respects unless the failure or failures of such representations
and warranties to be so true and correct, individually or in the aggregate,
would have a Material Adverse Effect on Ramius.
Section 7.2.Performance. Each of the covenants and obligations that
each of the New Parent Parties, Ramius and Cowen is required to perform or to
comply with pursuant to this Agreement and each of the covenants and
obligations that such parties are required to perform or comply with pursuant
to the applicable Ancillary Agreements, in each case, at or prior to the
Closing, shall have been duly performed and complied with in all material
respects.
Section 7.3. Ramius
Asset Exchange. The transactions
contemplated by the Transaction Agreement, including, without limitation, the
Ramius Asset Exchange, shall have been consummated in accordance with the
Transaction Agreement.
Section 7.4. NASDAQ Listing. The shares of Class A Common
Stock to be issued as part of the Exchange Consideration shall have been
authorized for listing on the NASDAQ, subject to official notice of issuance.
Section 7.5. No Injunctions or Restraints; Illegality. No order, injunction or decree issued by any
court or agency of competent jurisdiction or other law preventing or making
illegal the consummation of the transactions contemplated by this Agreement
shall be in effect.
Section 7.6. Debt Consideration. The JV Note and JV Note Security Agreement
shall have been executed by New Parent and its Subsidiaries party thereto; provided,
that if the New Parent Revolver Execution has occurred, the JV Note and JV Note
Security Agreement shall not be executed.
ARTICLE VIII.
OTHER AGREEMENTS, ASSURANCES AND ACKNOWLEDGEMENTS
Section 8.1. Exchange
Consideration Transfer Restrictions.
(a) Subject
to Section 8.1(b), following the Closing, Transferor shall not
sell, assign, pledge, transfer or otherwise dispose of all or any part of the Class A
Common Stock issued as part of the Exchange Consideration (including any other
equity securities of New Parent issued or issuable in exchange for or with
respect to such shares of Class A Common Stock (x) by way of
dividend, split or combination of shares or (y) in
15
connection with a
reclassification, recapitalization, merger, consolidation, other reorganization
or similar transaction); provided, that (i) Transferor
may assign all or any part of the Exchange Consideration to any Affiliate all
of the outstanding equity interests of which are owned, directly or indirectly,
by Transferor or by any person which directly or indirectly wholly owns
Transferor, (ii) Transferor may, at any time, transfer a portion of the
Exchange Consideration to the extent necessary to prevent Transferor from being
in violation of the BHC Act or other federal, state or foreign banking Law (in
Transferor’s sole discretion); and (iii) Transferor may, in non-market
private sale transactions, sell or transfer all or any part of the Exchange
Consideration to third party investors (“Third Party Investors”);
provided that, without the consent of Ramius, no such private sale transaction,
individually or in the aggregate, shall result in any Third Party Investor and
it Affiliates beneficially owning in excess of 10% of the outstanding shares of
Class A Common Stock as of the completion of such transaction; provided
further, that any transferee of all or portion of the Exchange Consideration
referred to in clauses (i) or (iii) above shall agree in writing to
be bound by Sections 8.1(a) and 8.1(b). Any purported sale, pledge, assignment,
transfer or other disposition of all or of any portion of the Exchange
Consideration in violation of this Section 8.1(a) shall be
null and void and of no force and effect.
(b) The
restrictions set forth in Section 8.1(a) shall expire and be
of no further force or effect commencing one day after the six month
anniversary of the Closing, with respect to the Common Stock included in the
Exchange Consideration if and to the extent that following any sale, assignment,
pledge, transfer or other disposition of such Common Stock by such holder, the
Transferor, its Affiliates and its permitted third-party transferees in
accordance with this Agreement and the Fourth Amended and Restated Limited
Liability Company retain beneficial ownership of at least fifty percent (50%)
of the sum of (x) the Class A Common Stock constituting Exchange
Consideration and (y) the Common Stock constituting the aggregate Capital
Contributions of the Series I Members under the Fourth Amended and
Restated Limited Liability Company (as adjusted for stock splits,
consolidations, recapitalizations, reorganizations, mergers and similar events
affecting the New Parent capital).
Following the second anniversary of the date of this Agreement, the transfer
restrictions set forth in Section 9.1 with respect to the Exchange
Consideration shall terminate. In
addition, any such transfer restrictions shall terminate and cease to apply
following a Lock-up Termination Event.
(c) Notwithstanding
anything to the contrary in this Agreement, subject to any applicable
provisions of the Insider Trading policy of New Parent, the UniCredit Parties
and their Affiliates shall not be restricted from engaging in hedging or
derivatives transactions with respect to shares of Common Stock of New
Parent. Subject to receiving information
regarding the beneficial ownership of Common Stock by the UniCredit Parties and
their Affiliates through Ramius in accordance with the Fourth Amended and
Restated Limited Liability Company of Ramius, the UniCredit Parties shall
provide written notice to Ramius and New Parent reasonably promptly upon
becoming aware that the UniCredit Parties and their Affiliates beneficially
own, in the aggregate, less than 4.9% of the Common Stock of New Parent whether
as a result of hedging or derivates transactions or otherwise. New Parent will promptly inform Transferor in
the event that it enters into any redemption, repurchase or similar transaction
involving its
16
Common Stock that would
reasonably be expected to result in an increase in Transferor’s or its
Affiliates’ proportionate interest in the Common Stock.
(d) Notwithstanding
anything to the contrary in this Agreement, but subject to the restrictions on
transfer set forth in Section 8.01(a) and Section 8.01(b),
unless permitted by applicable law, the UniCredit Parties shall not sell or
dispose of any shares of Class B Common Stock they or their Affiliates may
hold from time to time, except solely upon the consummation of any of the
following events: (a) any disposition of shares of Class B Common
Stock to the public in connection with a widely dispersed offering (including,
without limitation, a public offering registered under the Securities Act), (b) any
disposition by a holder of Class B Common Stock of shares of Class B
Common Stock under Rule 144 or Rule 144A promulgated by the SEC under
the Securities Act, or any similar rule then in force, of no more than two
percent (2%) of the outstanding voting securities of New Parent, (c) any
transfer by a holder of Class B Common Stock of shares of Class B
Common Stock in a single transaction to an independent third party or “group”
(as such term is used for purposes of Section 13(d) of the Exchange Act,
whether or not applicable) of independent third parties who holds or acquires
at least a majority of the outstanding voting securities of New Parent without
regard to the transfer of any shares of Class B Common Stock.
(e) Pursuant to this Agreement and the
Fourth Amended and Restated Ramius LLC Agreement, unless and until the
UniCredit Parties and their Affiliates beneficially own, in the
aggregate, less than 4.9% of the Common Stock of New Parent throughout any
consecutive ninety (90) day period, BA Alpine Holdings Inc. or its
Affiliate-designee shall have the right to nominate one (but no more than one)
individual (the “Board Designee”) to serve as a director on the board of
directors of New Parent and New Parent shall nominate such designee (or a replacement
designee) as part of the slate proposed by New Parent in connection with any
vote to elect the board of directors of New Parent. In the event that the Board Designee ceases
to be a member of the board of directors of New Parent, unless the UniCredit Parties and their
Affiliates beneficially own, in the aggregate, less than 4.9% of the common
stock of New Parent throughout any consecutive ninety (90) day period, BA
Alpine Holdings Inc. or its Affiliate-designee shall be entitled to select
another person to fill such vacancy and such person shall be appointed by New
Parent to the board of directors.
(f) Subject
to applicable law and stock exchange requirements, unless and until the UniCredit Parties
and their Affiliates beneficially own, in the aggregate, less than 10% of the
Common Stock of New Parent throughout any consecutive ninety (90) day period
following the Closing, New Parent shall use reasonable best efforts to cause
the Board Designee to be a member of each committee of the board of directors
of New Parent.
(g) In
connection with the closing of the transactions pursuant to the Transaction
Agreement, BA Alpine Holdings Inc. shall, upon request by New Parent, notify
New Parent at least ten days prior to the initial filing of the proxy statement
to be submitted to the stockholders of Cowen in connection with the
Transactions, the name of
17
its initial designee to
the board of directors of New Parent.
Such individual shall become a director of New Parent, effective the
business day after the Closing.
(h) For
so long as there is a Board Designee on the board of directors of New Parent,
in the event that Transferor intends to sell or transfer all or a part of the
Exchange Consideration in accordance with this Section 8.1, such
sale or transfer must be made in accordance with the Insider Trading Policy of
New Parent attached hereto as Exhibit E, including, without limitation,
limitations on sales during any “blackout periods.”
(i) For so long as BA Alpine Holdings
has the right to a Board Designee, New Parent shall not amend its Insider
Trading Policy (i) in any material respect or (ii) in any manner
which would in its practical application discriminatorily affect only the
UniCredit Parties and their Affiliates and which is not reasonably supported by
rational legal or business purpose unrelated to the UniCredit Parties’ or their
Affiliates’ investment in Common Stock (other than discriminatory treatment of
the UniCredit Parties and their Affiliates), in each case without the prior
written consent of Transferor, other than any changes that are required by
law. New Parent will use commercially
reasonable efforts to respond as promptly as reasonably practicable to any
request for pre-approval under the Insider Trading Policy made by the UniCredit
Parties or their Affiliates.
Section 8.2. Acknowledgements. Transferor
acknowledges that anything in the JV LLC Agreement to the contrary
notwithstanding, (i) the JV need not make any further distributions to any
member of the JV until this Agreement is terminated; provided, that the (x) JV
may make distributions of up to $5,000,000 in the aggregate to Ramius and (y) Ramius
shall cause JV to make payments of the Retained Fee Stream in accordance with Section 10.1(a) and
the JV LLC Agreement and (ii) the JV’s or Ramius’s entering into an
agreement to consummate any transaction, which consummation is subject to (and
does not occur prior to) the occurrence of the Closing, shall not be deemed to
violate the JV LLC Agreement.
Section 8.3. Actions
of Cowen and Ramius. Each of Cowen
and Ramius shall take all actions necessary to cause the New Parent Parties to
comply with their respective obligations hereunder. Notwithstanding anything else in this
Agreement to the contrary, to the extent that New Parent fails to fulfill any
of its obligations under this Agreement due solely to the breach of this
Agreement by either Ramius or Cowen, such breaching party shall be solely
liable for any such failure by New Parent.
Section 8.4. Registration Rights Agreement. Cowen and Ramius shall cause New Parent to
execute and deliver to Transferor the Registration Rights Agreement, at or
prior to Closing.
Section 8.5. JV Note; JV Note Security Agreement. If the New Parent Revolver Execution has not occurred, Cowen and
Ramius shall cause New Parent to execute and deliver to Transferor the JV Note
and the JV Note Security Agreement, at or prior to Closing.
Section 8.6. Transfer Restriction — JV Interest. For a period of one year following the
Closing, JV Acquiror will not sell, transfer or otherwise dispose of all or a
portion
18
of the JV Interest and will not acquire any additional
interest in the JV; provided that no sale, transfer or disposition to any
unrelated third-party purchaser from JV Acquiror shall be prohibited hereunder.
Section 8.7. Reorganization.
In
connection with any merger, consolidation, tender offer, or any other
transaction resulting in the stockholders of New Parent immediately before such
transaction owning substantially the same aggregate voting power of the
resultant entity, New Parent
shall use its reasonable best efforts to ensure that BA Alpine Holdings’ right
to designate a Board Designee to the surviving or succeeding parent company
shall be preserved on the terms described herein, including the requisite
ownership thresholds.
Section 8.8.Tax Treatment. The parties hereto agree to treat the JV
Interest Exchange as a taxable transaction for U.S. federal income tax purposes
that is not part of the Code Section 351 exchange contemplated by the
Transaction Agreement. New Parent and JV Acquiror (and Cowen, as successor to
JV Acquiror) agree to report the JV Interest Exchange consistently with the
foregoing on all applicable tax returns and will not take any action, or
knowingly fail to take any action, which action or failure to act could be
reasonably likely to cause the JV Interest Exchange to be treated as a tax-free
transaction for U.S. federal income tax purposes.
Section 8.9. Registration. Ramius shall in good faith evaluate and consider whether the
shares of Class A Common Stock included in the Exchange Consideration may
in accordance with applicable securities laws be included in the Registration
Statement on Form S-4 (the “Form S-4”) to be filed by Cowen in
connection with the transactions contemplated by the Transaction
Agreement. If Ramius determines that
such shares may be so included, Ramius shall use commercially reasonable
efforts to include such shares in the Form S-4.
Section 8.8. Closing. Transferor,
HVB AG, Cowen, Ramius and New Parent each acknowledge and agree that the
parties to this Agreement intend (a) for the conditions to each party’s
obligation to effect the Closing be satisfied no later than the time at which
the conditions to effect the closing of the transactions contemplated by the
Transaction Agreement are satisfied (other than the condition contained in Section 8.1(f) of
the Transaction Agreement), and (b) to effect the Closing immediately
following the satisfaction of the conditions to the obligations to effect the
closing of the transactions contemplated by the Transaction Agreement (other
than the condition contained in Section 8.1(f) of the Transaction
Agreement). In furtherance and not in
limitation of the foregoing, if, at the time the conditions to effect the
closing under the Transaction Agreement have been met (other than the condition
contained in Section 8.1(f) of the Transaction Agreement), the New
Parent Revolver Execution has not occurred, New Parent shall execute and
deliver, and Transferor shall accept, the JV Note and JV Security Agreement,
such that the conditions to this Agreement shall be satisfied on or before the
time that the conditions to effect the closing under the Transaction Agreement
have been satisfied (other than the condition contained in Section 8.1(f) of
the Transaction Agreement).
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ARTICLE
IX.
TERMINATION
Section 9.1.Termination.
This Agreement shall terminate prior to the Closing solely as follows
(and may not be terminated following the Closing):
(a) By mutual written consent of the parties hereto;
(b) upon termination of the Transaction Agreement; or
(c) by either party in the event that the Closing has not
occurred on or before December 31, 2009, unless the failure of the Closing
to occur by such date shall be due to the failure of the party seeking to
terminate this Agreement to perform or observe the covenants and agreements of
such party set forth in this Agreement.
Section 9.2.Effect of Termination.
In the event this Agreement is terminated pursuant to Section 9.1
all further obligations of the parties hereunder shall terminate, except for
the obligations set forth in this Section 9.2 and Article XI,
and except that such termination shall not relieve any party hereto of any
Liability for any Breach of this Agreement prior to such termination.
ARTICLE X.
STATUS OF OTHER AGREEMENTS
Section 10.1.JV LLC Agreement. At the Closing, the JV LLC
Agreement shall terminate as between the Ramius Parties that are parties
thereto, on the one hand, and the UniCredit Parties that are parties thereto,
on the other, except that:
(a) Transferor shall remain entitled to its rights in and
to the HVB Retained Fee Stream (as defined in the JV LLC Agreement) pursuant to
Section 3.6(h)(ii) as if the transactions contemplated in this
Agreement were occurring in connection with a Put/Call Event or Buy/Sell Right
under the JV LLC Agreement and Ramius shall cause JV to make such payments in
accordance with the JV LLC Agreement;.
(b) Section 8.1 (Confidentiality) of the JV LLC
Agreement as to HVB AG and its Subsidiaries (as defined in the JV LLC
Agreement) will survive indefinitely;
(c) so long as the HVB Solicitation Agreement remains in
effect, Section 6.7(e) (Sales Loads) of the JV LLC Agreement will
survive; and
(d) Section 10.1 (Indemnification) of the JV LLC
Agreement shall continue to apply to the Transferor and its Affiliates with
respect to the period during which Transferor was a member of the JV as if such
Persons were “Members” or “Affiliates of Members” thereunder.
Section 10.2.Other Agreements. Except as provided in Section 10.1
and in the Ancillary Agreements: all agreements (including the HVB Solicitation
Agreement, the Ramius Revolving Credit
Agreement, the JV Secured Revolving Loan Agreement, the Ramius
20
Investment Management
Agreement, the JV Investment Management Agreement and the agreements with
respect to the Ramius Funds and JV Funds into which investments have been made)
between Ramius and any of its Subsidiaries (or Ramius Funds), on the one hand,
and UniCredit and any of its Subsidiaries, on the other, shall remain in full
force and effect with such modifications thereto as are contemplated by the
UniCredit Consent and the Amendments.
ARTICLE XI.
GENERAL PROVISIONS
Section 11.1.Expenses. Each of the
parties hereto will bear its own expenses in connection with the negotiation,
execution and delivery of this Agreement and the Ancillary Agreements; provided that (i) Ramius shall reimburse UniCredit for
fees and expenses of Gleacher Partners (not to exceed $250,000 in the
aggregate) incurred by UniCredit in connection with analyses prepared by
Gleacher Partners in connection with UniCredit’s evaluation of the transactions
contemplated by this Agreement, the Transaction Agreement and the Ancillary
Agreements and (ii) Ramius shall reimburse UniCredit for additional out of
pocket expenses (not to exceed $400,000 in the aggregate) incurred by UniCredit
or it Subsidiaries to third parties in connection with their evaluation
(including the negotiation, execution and delivery of this Agreement and the
Ancillary Agreements) of the transactions contemplated by this Agreement, the
Transaction Agreement and the Ancillary Agreements upon submission of
reasonably detailed documentation of such expenses.
Section 11.2.Public Announcements and Confidentiality.
None of the parties hereto or their Affiliates shall issue or cause the
publication of any press release or other public announcement with respect to,
or otherwise make any public statement concerning, the transactions contemplated
by this Agreement without the prior consent of the other parties hereto; provided,
however, that any party may, without the prior consent of any other
party hereto (but after prior consultation with the other parties hereto to the
extent practicable under the circumstances and using commercially reasonable
efforts to accommodate any reasonable requests of the other parties with
respect to any such disclosure) issue or cause the publication of any press
release or other public announcement to the extent required by Law or any
Governmental Body.
Section 11.3.Notices. All notices,
Consents, waivers and other communications required or permitted by this
Agreement shall be in writing and shall be deemed given to a party when (a) delivered
to the appropriate address by hand or by nationally recognized overnight
courier service (costs prepaid); (b) sent by facsimile or e-mail with
confirmation of transmission by the transmitting equipment; or (c) received
or rejected by the addressee, if sent by certified mail, return receipt
requested, in each case to the following addresses, facsimile numbers or e-mail
addresses and marked to the attention of the person (by name or title)
designated below (or to such other address, facsimile number, e-mail address or
person as a party may designate by notice to the other parties):
21
If to Transferor or HVB AG:
Bayerische Hypo- und
Vereinsbank AG
Arabellastr. 12
81925 Munich
Germany
Attention: Maximilian Hogger
Fax: Fax +49 89 378-3312687
Email: maximilian.hogger@unicreditgroup.de
Section 11.4.Governing Law; Jurisdiction; WAIVER
OF JURY TRIAL; Enforcement.
(a) Governing Law; Jurisdiction.
This Agreement shall be governed and construed in accordance with the
internal laws of the State of Delaware applicable to contracts made and wholly
performed within such state, without regard to any applicable conflicts of law
principles. The parties hereto agree that any suit, action or proceeding
brought by either party to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in any federal or state court located in
the State of Delaware. Each of the parties hereto submits to the exclusive
jurisdiction of any such court in any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of, or in
connection with, this Agreement or the transactions contemplated hereby and
hereby irrevocably waives the benefit of jurisdiction derived from present or
future domicile or otherwise in such action or proceeding. Each party hereto irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
(b) WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HEREBY WAIVES TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY, IN ANY MATTERS (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) Enforcement. The parties
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms on a timely basis or were otherwise breached. It is accordingly agreed that the parties
shall be entitled to an injunction or other equitable relief to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this
23
Agreement in any court identified in Section 11.4
hereto, this being in addition to any other remedy to which they are entitled
at law or in equity.
Section 11.5.Waiver; Remedies
Cumulative. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither any failure nor any delay by any
party in exercising any right, power or privilege under this Agreement or any
of the documents referred to in this Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any such right,
power or privilege will preclude any other or further exercise of such right,
power or privilege or the exercise of any other right, power or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement or any of the
documents referred to in this Agreement can be discharged by one party, in
whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a
party will be applicable except in the specific instance for which it is given;
and (c) no notice to or demand on one party will be deemed to be a waiver
of any obligation of that party or of the right of the party giving such notice
or demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
Section 11.6.Entire Agreement and
Modification. This Agreement supersedes all prior
agreements, whether written or oral, between the parties with respect to its
subject matter (including any letter of intent and any confidentiality
agreement between the parties related to the subject matter of this Agreement)
and constitutes (along with the agreements described in Article X)
a complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be amended,
supplemented, or otherwise modified except by a written agreement executed by
the party to be charged with the amendment and Transferor.
Section 11.7.Disclaimers. EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLES III, IV,
AND V OR IN ANY ANCILLARY AGREEMENT, EACH AS APPLICABLE, NONE OF THE
PARTIES HERETO HAVE MADE OR HEREBY MAKE ANY EXPRESS OR IMPLIED REPRESENTATION
AND WARRANTY, STATUTORY OR OTHERWISE, OF ANY NATURE.
Section 11.8.Assignments,
Successors and No Third-Party Rights. No party may assign any of
its rights or delegate any of its obligations under this Agreement without the
prior written consent of the other parties; provided, however, that Transferor
shall be entitled to assign its rights to receive shares of Class A Common
Stock at the Closing to one or more of its Affiliates all of the outstanding
equity interests of which are owned, directly or indirectly, by Transferor or
by any person which directly or indirectly wholly owns Transferor. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or equitable right, remedy
or claim under or with respect to this Agreement or any provision of this
Agreement, except such rights as shall inure to a successor or permitted
assignee pursuant to this Section 11.8.
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Section 11.9.Severability. If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain in
full force and effect. Any provision of
this Agreement held invalid or unenforceable only in part or degree will remain
in full force and effect to the extent not held invalid or unenforceable.
Section 11.10.Construction. The headings
of Articles and Sections in this Agreement are provided for convenience only
and will not affect its construction or interpretation. All references to “Articles,”“Sections” and “Parts”
refer to the corresponding Articles, Sections and Parts of this Agreement.
Section 11.11.Execution of
Agreement.
This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
The exchange of copies of this Agreement and of signature pages by
facsimile or email transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes.
Signatures of the parties transmitted by facsimile or email shall be
deemed to be their original signatures for all purposes.
Section 11.12.HVB AG Obligation. HVB AG hereby
agrees that it shall be jointly and severally responsible for the prompt and
complete performance by Transferor, when due, of all of Transferor’s
obligations under this Agreement and the Ancillary Agreements.
Section 11.13.Survival. All
representations, warranties, covenants and agreements in this Agreement shall
survive the Closing. The right to
indemnification, reimbursement or other remedy based upon such representations,
warranties, covenants and agreements shall not be affected by any investigation
conducted with respect to, or any knowledge acquired (or capable of being
acquired) at any time, whether before or after the execution and delivery of
this Agreement or the Closing, with respect to the accuracy or inaccuracy of or
compliance with any such representation, warranty, covenant or agreement. The waiver of any condition based upon the
accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or agreement, will not affect the right to
indemnification, reimbursement or other remedy based upon such representations,
warranties, covenants and agreements.
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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement, all as of the day and year first above written.
