CLASS B SHAREHOLDERS AGREEMENT dated as of November 13, 2007 among OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC and THE INDIVIDUALS SET FORTH ON THE SIGNATURE PAGES HERETO
Exhibit
9
Execution
Copy
CLASS
B SHAREHOLDERS AGREEMENT
dated
as of
November
13, 2007
among
OCH-ZIFF
CAPITAL MANAGEMENT GROUP LLC
and
THE
INDIVIDUALS SET FORTH
ON
THE SIGNATURE PAGES HERETO
TABLE
OF CONTENTS
Page
|
ARTICLE
I
DEFINITIONS
|
||
|
SECTION
1.1
|
DEFINITIONS
|
1
|
|
SECTION
1.2
|
GENDER
|
6
|
|
ARTICLE
II
CLASS
B SHAREHOLDER COMMITTEE
|
||
|
SECTION
2.1
|
ESTABLISHMENT
|
6
|
|
SECTION
2.2
|
DELEGATION
OF AUTHORITY.
|
6
|
|
SECTION
2.3
|
VOTING
PROXY AND POWER OF ATTORNEY
|
7
|
|
SECTION
2.4
|
EXCULPATION
|
8
|
|
ARTICLE
III
TRANSFER
RESTRICTIONS; REALLOCATION EVENTS
|
||
|
SECTION
3.1
|
TRANSFER
RESTRICTIONS.
|
8
|
|
SECTION
3.2
|
REALLOCATION
EVENTS.
|
8
|
|
ARTICLE
IV
BOARD
REPRESENTATION
|
||
|
SECTION
4.1
|
NOMINEES
|
8
|
|
ARTICLE
V
APPROVAL
OF CERTAIN MATTERS
|
||
|
SECTION
5.1
|
CLASS
B SHAREHOLDER COMMITTEE APPROVAL
|
9
|
|
ARTICLE
VI
TERMINATION
|
||
|
SECTION
6.1
|
TERM
|
10
|
|
SECTION
6.2
|
SURVIVAL
|
10
|
i
|
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES
|
||
|
SECTION
7.1
|
REPRESENTATIONS
AND WARRANTIES OF THE CLASS B SHAREHOLDERS
|
11
|
|
SECTION
7.2
|
REPRESENTATIONS
AND WARRANTIES OF THE LLC
|
11
|
|
ARTICLE
VIII
MISCELLANEOUS
|
||
|
SECTION
8.1
|
NOTICES
|
11
|
|
SECTION
8.2
|
INTERPRETATION
|
12
|
|
SECTION
8.3
|
SEVERABILITY
|
12
|
|
SECTION
8.4
|
COUNTERPARTS
|
12
|
|
SECTION
8.5
|
ENTIRE
AGREEMENT; NO THIRD PARTY BENEFICIARIES
|
13
|
|
SECTION
8.6
|
FURTHER
ASSURANCES
|
13
|
|
SECTION
8.7
|
GOVERNING
LAW; EQUITABLE REMEDIES
|
13
|
|
SECTION
8.8
|
CONSENT
TO JURISDICTION
|
13
|
|
SECTION
8.9
|
AMENDMENTS;
WAIVERS
|
14
|
|
SECTION
8.10
|
ASSIGNMENT
|
14
|
|
SECTION
8.11
|
LEGENDS
|
14
|
|
SECTION
8.12
|
ACTIONS
IN OTHER CAPACITIES
|
14
|
ii
CLASS
B SHAREHOLDERS AGREEMENT (the "Agreement"), dated as of November 13,
2007, among the individuals set forth on the signature pages hereto (the
"Initial Class B Shareholders" and, collectively with all other Persons
who become Class B Shareholders in accordance with this Agreement (including
Permitted Transferees), the "Class B Shareholders"), and Och-Ziff Capital
Management Group LLC, a Delaware limited liability company (the
"LLC"). Defined terms used herein have the respective meaning
ascribed thereto in Section 1.1.
WHEREAS,
in connection with the IPO, the LLC and its Affiliates intend to consummate
the
transactions described in the Registration Statement on Form S-1 (Registration
No. 333-144256) (the "IPO Registration Statement"); and
WHEREAS,
the Class B Shareholders and the LLC desire to address herein certain
relationships among themselves with respect to approval of certain matters,
transfer restrictions, voting arrangements and board designation rights with
respect to the Class B Shares and certain other matters.
NOW,
THEREFORE, in consideration of the mutual covenants and undertakings contained
herein and for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 DEFINITIONS. As
used in this Agreement, the following terms shall have the following
meanings:
"Affiliate"
of any Person means any other Person that directly or indirectly, through one
or
more intermediaries, Controls, is Controlled by, or is under common Control
with, such first Person.
"Agreement"
has the meaning set forth in the recitals to this Agreement.
"Applicable
Term" means, with respect to any provision of this Agreement, the period
during which such provision is operative, as set forth herein.
"Applicable
Transferee" shall mean, with respect to any Class B Transferor, any
Permitted Transferee of such Class B Transferor and any subsequent Permitted
Transferee of such Permitted Transferee (acting as Class B
Transferor).
"Beneficial
Owner" of a security is a Person who directly or indirectly, through any
contract, arrangement, understanding, relationship or otherwise has or shares
(i) voting power, which includes the power to vote, or to direct the voting
of,
such security and/or (ii) investment power, which includes the power to dispose,
or to direct the disposition of, such security. The terms "Beneficially
Own" and "Beneficial Ownership" shall have correlative
meanings.
"Board"
means the board of directors of the LLC.
1
"Cause”
means,
with respect to
any Person, such Person (i) has committed an act of fraud, dishonesty,
misrepresentation or breach of trust; (ii) has been convicted of a felony or
any
offense involving moral turpitude; (iii) has been found by any regulatory body
or self-regulatory organization having jurisdiction over the LLC or its
Affiliates to have, or has entered into a consent decree determining that such
Person, violated any applicable regulatory requirement or a rule of a
self-regulatory organization; (iv) has, in the capacity as an officer of the
LLC
or a partner of any of the LLC's Affiliates, committed an act constituting
gross
negligence or willful misconduct; (v) has violated in any material respect
any
agreement with respect to the LLC or any of its Affiliates; (vi) has become
subject to any proceeding seeking to adjudicate such Person a bankrupt or
insolvent, or seeking liquidation, reorganization, arrangement, adjustment,
protection, relief or composition of the debts of such Person under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or
seeking the entry of an order for relief or the appointment of a receiver,
trustee or other similar official for such Person or for any substantial part
of
the property of such Person, or such Person has taken any action authorizing
such proceeding; or (vii) a breach by such Person of the non-competition or
non-solicitation covenants provided in any agreement between such Person and
the
LLC or any of its Affiliates.
"Class
A Shares" means the Class A Shares of the LLC representing Class A limited
liability company interests of the LLC and any equity securities issued or
issuable in exchange for or with respect to such Class A Shares by way of a
dividend, split or combination of shares or in connection with a
reclassification, recapitalization, merger, consolidation or other
reorganization.
"Class
B Shareholder" has the meaning set forth in the recitals
hereto.
"Class
B Shareholder Committee" has the meaning set forth in Section
2.1
"Class
B Shares" means the Class
B Shares of the LLC representing Class B limited liability company interests
of
the LLC and any equity securities issued or issuable in exchange for or with
respect to such Class B Shares by way of a dividend, split or combination of
shares or in connection with a reclassification, recapitalization, merger,
consolidation or other reorganization.
"Class
B Transferor" means any
Person that, as a result of any Permitted Transfer or Consent Transfer, is
no
longer the record holder of the Class B Shares subject to such Permitted
Transfer or Consent Transfer, as applicable.
"Class
C Non-Equity Interests" means, collectively, one class C non-equity interest
in each of the entities within the Och-Ziff Operating Group.
"Continuing
Initial Class B Shareholders" shall mean any Initial Class B Shareholder and
any Applicable Transferee of such Initial Class B Shareholder, but excluding
any
Person that is or previously was a member of any Reallocation
Group.
"Consent
Transfer" has the meaning set forth in Section 3.1(a).
2
"Control"
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise.
"Controlled
Affiliate" of any Person means any Affiliate that directly or indirectly,
through one or more intermediaries, is Controlled by such Person.
"Disability"
means that a Person (i) as determined by the Board in its sole discretion,
is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in
death or can be expected to last for a continuous period of not less than 12
months, or (ii) is, by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months, receiving income replacement
benefits for a period of not less than 3 months under an accident and health
plan covering employees and partners of the Company or an Affiliate of the
Company.
"Exchange
Agreement" means the Exchange Agreement dated the date hereof by and among
the limited partners of the entities included in the Och-Ziff Operating Group,
Och-Ziff Corp, Och-Ziff Holding LLC and the LLC.
"Governmental
Entity" means any court, administrative agency, regulatory body, commission
or other governmental authority, board, bureau or instrumentality, domestic
or
foreign and any subdivision thereof.
"Initial
Class B Shareholders" has the meaning set forth in the recitals to this
Agreement.
"IPO"
means the initial offering of Class A Shares to the public, as described in
the
IPO Registration Statement.
"IPO
Registration Statement" has the meaning set forth in the recitals to this
Agreement.
"LLC"
has the meaning set forth in the recitals to this Agreement.
"Och-Ziff
Corp" means Och-Ziff Holding Corporation, a Delaware corporation and wholly
owned subsidiary of the LLC.
"Och-Ziff
Holding LLC" means Och-Ziff Holding LLC, a Delaware limited liability
company and wholly owned subsidiary of the LLC.
"Och-Ziff
Operating Group" means, collectively, Persons directly controlled by
Och-Ziff Corp or Och-Ziff Holding LLC. As of the date hereof, the
Och-Ziff Operating Group is comprised of OZ Management LP, a Delaware limited
partnership, OZ Advisors LP, a Delaware limited partnership and OZ Advisors
II
LP, a Delaware limited partnership.
"Och-Ziff
Operating Group Agreements" means, collectively, the limited partnership
agreements and/or other organizational documents of each of the entities within
the Och-Ziff
3
Operating
Group, as the same may be amended or implemented from time during the term
of
this Agreement.
"Och-Ziff
Operating Group Units" means, collectively, a unit or units of interest
representing limited partnership interests or other similar interests in each
of
the entities within the Och-Ziff Operating Group (including without limitation,
the units designated as the “Class A common units” in each such entity issued
under the applicable Och-Ziff Operating Group Agreement on or prior to the
date
hereof).
"Operating
Agreement" means the Second Amended and Restated Limited Liability Company
Agreement of the LLC, as amended or supplemented from time to time.
"Outstanding"
means, with respect to Shares, all Shares that are issued by the LLC and
reflected as outstanding on the LLC's books and records as of the relevant
date
of determination.
"Owned
Class B Shares" means the Class B Shares owned of record by the Class B
Shareholders as initially set forth on Schedule I hereof, as adjusted for any
new issuance, cancellation, redemption and or repurchase of Class B Shares
and
as further adjusted by way of a dividend, split or combination of Class B Shares
or in connection with a reclassification, recapitalization, merger,
consolidation or other reorganization.
"Partner
Management Committee" means the Partner Management Committee of each
Och-Ziff Operating Group entity as it may be constituted from time to time
in
accordance with the applicable Och-Ziff Operating Group Agreement and, which,
as
of the date hereof, consists of Messrs. Och, Xxxxxxxxx, Xxxxx, Cohen, Varga,
Xxxxx and Xxxxx, with Mr. Och serving as Chairman.
"Permitted
Transfer" means a transfer of Class B Shares (i) to any Person that is a
holder of Class B Shares immediately prior to such transfer and/or is (or will
be) the beneficial owner of Och-Ziff Operating Group Units immediately prior
to,
or immediately following, such transfer, (ii) permitted under (and effected
in
compliance with) the Exchange Agreement, (iii) by operation of law, or (iv)
effected in accordance with Section 3.2 hereof, in each case, provided that
such
transfer is otherwise made in compliance with applicable securities laws,
including the Securities Act.
"Permitted
Transferee" means any holder of Class B Shares, other than an Initial Class
B Shareholder, who obtains such Class B Shares in a Permitted Transfer or a
Consent Transfer.
"Person"
means any individual, corporation, firm, partnership, joint venture, limited
liability company, estate, trust, business association, organization,
Governmental Entity or other entity.
"Proceeding"
shall have the meaning set forth in Section 8.8.
"Proxy
Term" means the period from the date of original issuance of the Class B
Shares until the later of (x) Xxxxxx Xxx'x Withdrawal, death or Disability
and
(y) the date on which the
4
Class
B Shareholders no longer Beneficially Own Voting Securities that comprise at
least 40% of the Total Voting Power.
"Reallocation
Event" means any event involving a reallocation of Och-Ziff Operating Group
Units pursuant to the respective Och-Ziff Operating Group
Agreements.
"Reallocation
Group" means any Initial Class B Shareholder that is required to have such
Person's Och-Ziff Operating Group Units reallocated in a Reallocation Event
(a
"Reallocation Person") and any Applicable Transferee of any Reallocation
Person.
"Reallocation
Share Amount" means a number of Class B Shares equal to the number of
Och-Ziff Operating Group Units being reallocated in connection with a
Reallocation Event.
"Related
Trust" means, in respect of any Class B Shareholder, any Person that is an
estate, family limited liability company or family limited partnership of such
individual Class B Shareholder, a trust the grantor of which is such individual
Class B Shareholder, or any other estate planning vehicle or family member
relating to such individual Class B Shareholder.
"Representative"
means with respect to a particular Person, any director, officer, manager,
employee, agent, consultant, advisor, accountant, financial advisor, legal
counsel or other representative of that Person.
"SEC"
means the United States Securities and Exchange Commission or any similar agency
then having jurisdiction to enforce the Securities Act.
"Securities
Act" means the Securities Act of 1933, as amended, supplemented or restated
from time to time and any successor to such statute, and the rules and
regulations promulgated thereunder.
"Selected
Courts" shall have the meaning set forth in Section 8.8.
"Shareholders"
means, collectively, the holders of Outstanding Class A Shares and holders
of
Outstanding Class B Shares.
"Shares"
means, collectively, the Outstanding Class A Shares and Class B
Shares.
"Subsidiary"
or "Subsidiaries" means, with respect to any Person, as of any date of
determination, any other Person as to which such Person owns, directly or
indirectly, or otherwise controls, more than 50% of the voting shares or other
similar interests or the sole general partner interest or managing member or
similar interest of such Person.
"Termination
Date" has the meaning set forth in Section 6.1 hereof.
"Total
Voting Power" means the total number of votes that may be cast in the
election of directors of the LLC if all Outstanding Voting Securities and Voting
Securities treated as Outstanding pursuant to the final sentence of this
definition were present and voted at a meeting held for such
purpose. The percentage of the Total Voting Power of the LLC
Beneficially Owned by any Person is the percentage of the Total Voting Power
of
the LLC that is represented
5
by
the total number of votes that may be cast in the election of directors of
the
LLC by Voting Securities Beneficially Owned by such Person. In calculating
such
percentage, the Voting Securities Beneficially Owned by any Person that are
not
Outstanding but are subject to issuance upon exercise, exchange or conversion
or
any options, warrants or other rights Beneficially Owned by such Person shall
be
deemed to be Outstanding for the purpose of computing the percentage of the
Total Voting Power of the LLC represented by Voting Securities Beneficially
Owned by such Person, but shall not be deemed to be Outstanding for such purpose
to the extent that the exercise, conversion or exchange of any such securities
or rights would directly result in the repurchase, cancellation, forfeiture
or
redemption of any Outstanding Voting Securities already included in such
calculation and, in no event shall such securities or rights be deemed to be
Outstanding for the purpose of computing the percentage of the Total Voting
Power of the LLC represented by Voting Securities Beneficially Owned by any
other Person.
"Voting
Securities" means Class A Shares, Class B Shares and any other securities of
the LLC entitled to vote generally in the election of directors of the
LLC.
"Withdrawal"
means, with respect to any Person that is a partner in any Och-Ziff Operating
Group entity, the withdrawal of such Person as a partner of each such Och-Ziff
Operating Group entity and/or the voluntary or involuntary termination of such
Person's active involvement in the business or operations of the Och-Ziff
Operating Group and its Affiliates.
SECTION
1.2 GENDER. For
the purposes of this Agreement, the words "he," "his" or "himself" shall be
interpreted to include the masculine, feminine and corporate, other entity
or
trust form.
ARTICLE
II
CLASS
B SHAREHOLDER COMMITTEE
SECTION
2.1 ESTABLISHMENT. Each
Class B Shareholder hereby consents and agrees to the establishment of a Class
B
Shareholder Committee (the "Class B Shareholder Committee") to be
comprised initially of Xxxxxx Xxx, as sole member until his Withdrawal, death
or
Disability. Upon Mr. Och's Withdrawal, death or Disability and at any
point in time thereafter at which there is no member of the Class B Shareholder
Committee, the Partner Management Committee shall act by majority vote to
reconstitute the Class B Shareholder Committee either by (i) appointing a new
Class B Shareholder to serve as the sole member of the Class B Shareholder
Committee until such Class B Shareholder's Withdrawal, death, Disability or
removal from the Class B Shareholder Committee by a majority vote of the Partner
Management Committee, or (ii) appointing all of the members of the Partner
Management Committee as members of the Class B Shareholder Committee, in which
event, the members shall act by majority vote on all matters to be approved
by
the Class B Shareholder Committee. Any Person that shall replace an
existing member of the Partner Management Committee for any reason after the
establishment of the Class B Shareholder Committee pursuant to clause (ii)
hereto shall also replace such existing member in his capacity as a member
of
the Class B Shareholder Committee.
SECTION 2.2 DELEGATION
OF
AUTHORITY.
(a) Each
Class B Shareholder hereby irrevocably delegates all power and authority
to the
members of the Class B Shareholder Committee (and each of them) existing
at
6
any
time and from time to time to exercise, on behalf of such Class B Shareholder,
any and all rights of such Class B Shareholder during the Applicable Term with
respect to the matters set forth in this Agreement, including without
limitation, the (i) nomination of individuals for election to the Board as
set
forth in Section 4.1; (ii) approval of the matters set forth in Section 5.1;
(iii) voting of its Class B Shares as set forth in Section 2.3; (iv) waiver
or
amendment of certain provisions of this Agreement, subject to the limitations
set forth in Section 8.9; (v) exercise of rights granted to the Class B
Shareholders or the Class B Shareholder Committee in the Operating Agreement
as
set forth in Section 5.1(b); and (vi) actions necessary or advisable to
effect the foregoing to the extent not specifically set forth
herein.
(b) The
Class B Shareholder Committee shall have the resources and authority necessary
or advisable to discharge its duties and responsibilities, including the
authority to retain and terminate outside counsel, experts, consultants or
other
advisors, including any search firm to be used to identify director nominees,
as
it deems appropriate. The Class B Shareholder Committee shall have
the sole authority to approve related fees and other terms of any such
engagement. Any such fees or expenses arising out of any such
engagement shall be paid by the LLC or reimbursed upon the written demand of
the
Class B Shareholder Committee.
SECTION
2.3 VOTING
PROXY AND POWER OF ATTORNEY. Each Class B Shareholder hereby
irrevocably constitutes and appoints the members of the Class B Shareholder
Committee (and each of them) existing at any time and from time to time, as
the sole and exclusive attorney-in-fact and proxy of such Class B
Shareholder, with full power of substitution and resubstitution, to attend
any
meeting of the shareholders of the LLC or of the Class B Shareholders, and
any
adjournment or postponement thereof, on such Class B Shareholder’s behalf and to
vote or abstain from voting the Owned Class B Shares of such Class B Shareholder
in its sole discretion for or against any action or proposal to the fullest
extent permitted by law during the Proxy Term. Any such vote or
abstention shall not be subject to challenge or input from such Class B
Shareholder. Each Class B Shareholder hereby revokes any and all
previous proxies with respect to such Class B Shareholder's Owned Class B Shares
(which, for the avoidance of doubt, shall not include the power of attorney
set
forth in Section 2.6 of the Operating Agreement) and no subsequent proxies
(whether revocable or irrevocable) shall be given (and if given, shall not
be
effective) by such Class B Shareholder with respect to the Owned Class B
Shares that conflict with this proxy. This proxy and power of
attorney is intended to be irrevocable and is coupled with an interest
sufficient in law to support an irrevocable proxy and is granted for good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged and shall be valid and binding on any person to whom the Class
B
Shareholder may transfer any of its Owned Class B Shares during the Proxy
Term. The attorney-in-fact and proxy identified above will be
empowered at any and all times during the Proxy Term to vote or act by written
consent with respect to the Owned Class B Shares at every annual, special,
adjourned or postponed meeting of Shareholders, and in every written consent
in
lieu of such a meeting, or otherwise. The power of attorney granted
herein is a durable power of attorney and shall survive the dissolution,
bankruptcy, death or incapacity of each Class B Shareholder. Any such
vote shall be cast or consent shall be given in accordance with such procedures
relating thereto as shall ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote or consent. The provisions of this Section 2.3 shall
terminate at the end of the Proxy Term.
7
SECTION
2.4 EXCULPATION. To
the fullest extent permitted by applicable law, no member of the Class B
Shareholder Committee shall be liable to the Class B Shareholders or any of
them
to any Affiliate of any Class B Shareholder for any damages incurred by reason
of any act performed or omitted to be performed by such member of the Class
B
Shareholder Committee under this Agreement, including the proxy granted
herein.
ARTICLE
III
TRANSFER
RESTRICTIONS; REALLOCATION EVENTS
SECTION
3.1 TRANSFER
RESTRICTIONS.
(a) Except
for Permitted Transfers, no Class B Shareholder may, directly or
indirectly, transfer any Class B Shares without the prior written consent of
the
Class B Shareholder Committee, which consent may be given or withheld or made
subject to such conditions (including, without limitation, receipt of such
legal
opinions and other documents as the Class B Shareholder Committee may require)
as determined by the Class B Shareholder Committee, in each case, in its sole
discretion (a "Consent Transfer").
(b) Prior
to giving effect to any Permitted Transfer, Consent Transfer or any new
issuance of Class B Shares and reflecting the transferee or purchaser of Class
B
Shares as an owner of record, the LLC shall require that any such
Person who is not already a party to this Agreement shall (i) execute a
joinder to this Agreement, in form and substance reasonably acceptable to the
LLC and the Class B Shareholder Committee, in which such Person shall agree
to
be a "Class B Shareholder" for all purposes of this Agreement and (ii) become
party to the Exchange Agreement in accordance with the terms
thereof.
SECTION
3.2 REALLOCATION
EVENTS.Upon any Reallocation Event, the Reallocation Share Amount held
by the Reallocation Group prior to giving effect to such Reallocation Event
shall be automatically reallocated to the Continuing Initial Class B
Shareholders on a pro rata basis among all such Continuing Initial Class B
Shareholders, based on the number of Class B Shares held of record by each
such
Continuing Class B Shareholder as of the closing of the IPO.
ARTICLE
IV
BOARD
REPRESENTATION
SECTION
4.1 NOMINEES.
(a) So
long as the Class B Shareholders collectively Beneficially Own:
(b) Voting
Securities representing more than 50% of the Total Voting Power, the Board
shall
nominate five individuals designated by the Class B Shareholder
Committee;
(i) Voting
Securities representing 40% or more of the Total Voting Power and less than
or
equal to 50% of the Total Voting Power, the Board shall nominate three
individuals designated by the Class B Shareholder Committee;
(ii) Voting
Securities representing 25% or more of the Total Voting Power and less than
40% of the Total Voting Power, the Board shall nominate two individuals
designated by the Class B Shareholder Committee;
8
(iii) Voting
Securities representing 10% or more of the Total Voting Power and less than
25%
of the Total Voting Power, the Board shall nominate one individual
designated by the Class B Shareholder Committee; and
(iv) Voting
Securities representing less than 10% of the Total Voting Power, the Board
shall
have no obligation to nominate any individual that is designated by the Class
B
Shareholder Committee.
(c) In
the event that any designee of the Class B Shareholder Committee under this
Section 4.1 shall for any reason cease to serve as a member of the Board during
his term of office, the resulting vacancy on the Board shall be filled by an
individual designated by the Class B Shareholder Committee.
ARTICLE
V
APPROVAL
OF CERTAIN MATTERS
SECTION
5.1 CLASS
B SHAREHOLDER COMMITTEE APPROVAL.
(a) So
long as the Class B Shareholders collectively Beneficially Own more than 40%
of
the Total Voting Power, the LLC shall not take, and the Board shall not
authorize, approve or ratify, any of the following actions or any plan with
respect thereto without the prior written approval of the Class B
Shareholder Committee:
(i) any
incurrence of
indebtedness (other
than inter-company
indebtedness), in one
transaction or a series of related transactions, by the
LLC or any of its Subsidiaries
or
Controlled Affiliates in an amount in excess
of 10% of the
then existing long-term
indebtedness of the
LLC and its Subsidiaries
on a consolidated basis (including the current
portion of such
long-term indebtedness);
(ii) any
issuance by the
LLC or
any of its Subsidiaries or Controlled Affiliates
in
any transaction or series of
related transactions
of
equity or equity-related securities which would represent, after such issuance,
or upon conversion, exchange or exercise, as the case may be, at least 10%
of
the Total Voting Power (other than (1) pursuant to transactions solely
among the
LLC and its wholly owned
Subsidiaries, (2) upon issuances of securities pursuant to the LLC's 2007
equity
incentive plan described in the IPO Registration Statement (as the same may
be
supplemented, amended or restated from time to time), (3) upon the exchange
of
Och-Ziff Operating Group Units for securities pursuant to the Exchange Agreement
or (4) upon conversion of convertible securities or upon
9
exercise
of warrants or options, which convertible securities, warrants or options are
outstanding on the date hereof or issued in compliance with this
Agreement);
(iii) and
its wholly owned Subsidiaries,
(2) upon
issuances
of securities pursuant to the
LLC's
2007 equity incentive
plan described in the IPO
Registration Statement (as
the
same may be supplemented,
amended or restated
from time to time), (3)
upon the
exchange
of Och-Ziff Operating
Group Units for
securities pursuant to the
Exchange Agreement or (4)
upon conversion of convertible
securities or upon exercise of warrants or options, which convertible
securities, warrants or options are outstanding
on the date hereof
or issued in compliance with this
Agreement);
(iv) any
equity or debt commitment to invest
or investment or series of related equity or debt commitments to invest or
investments by the LLC or
any of its Subsidiaries or
Controlled Affiliates in a
Person or group of related
Persons in an amount greater than $250 million;
(v) any
entry by the LLC or any of
its Subsidiaries
or Controlled
Affiliates into a new line
of business that does not involve investment advisory or investment
management
services
and
that requires a principal
investment in
excess of $100 million;
(vi) the
adoption of a shareholder rights
plan by the LLC;
(vii) any
appointment or removal of
a Chief Executive Officer of
the
LLC or Co-Chief Executive
Officer of
the
LLC; or
(viii) the
termination of the employment of an executive
officer of
the
LLC or
any of its Subsidiaries or Controlled Affiliates
or
the termination of the association of
a partner with any of the
LLC's Subsidiaries
or Controlled Affiliates, in each case,
without
Cause.
(b) So
long as any Class B Shares are Outstanding, the Class B Shareholder Committee
shall have full power and authority to exercise any rights granted to the Class
B Shareholders or the Class B Shareholder Committee under Section 2.9 and
Section 9.3 of the Operating Agreement to the fullest extent permitted by law,
including, without limitation, any rights to consent (or withhold consent)
to
certain actions set forth therein and to consent (or withhold consent) to
certain amendments to the Operating Agreement as set forth therein.
ARTICLE
VI
TERMINATION
SECTION
6.1 TERM. This Agreement
shall automatically terminate upon the earlier of (a) January 1, 2050 or (b)
the
date on which no Class B Shares are Outstanding. This Agreement
may be terminated at any time by the mutual written agreement of the LLC and
the
Class B Shareholder Committee. The date of any automatic termination
or termination by mutual consent shall be deemed the "Termination
Date".
SECTION
6.2 SURVIVAL. On
the Termination Date, this Agreement shall become void and of no further
force
and effect, except for the provisions set forth in this Section 6.2 and Article
III, which provisions shall remain in full force and effect until no Owned
Class
B Shares are Outstanding.
10
ARTICLE
VII
REPRESENTATIONS
AND WARRANTIES
SECTION
7.1 REPRESENTATIONS
AND WARRANTIES OF THE CLASS B SHAREHOLDERS. Each Class B Shareholder severally,
and not jointly, represents and warrants to the LLC and to each other Class
B
Shareholder that (a) this Agreement has been duly authorized, executed and
delivered by such Class B Shareholder or his, her or its attorney-in-fact on
behalf of such Class B Shareholder and is a valid and binding agreement of
such
Class B Shareholder, enforceable against such Class B Shareholder in accordance
with its terms; (b) the execution, delivery and performance by such Class B
Shareholder of this Agreement does not violate or conflict with or result in
a
breach of or constitute (or with notice or lapse of time or both constitute)
a
default under any agreement to which such Class B Shareholder is a party or,
if
applicable, the organization documents of such Class B Shareholder; and (c)
such
Class B Shareholder has good and marketable title to the Shares owned by
such Class B Shareholder as of the date hereof free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind,
other
than pursuant to this Agreement.
SECTION
7.2 REPRESENTATIONS
AND WARRANTIES OF THE LLC. The LLC represents and warrants to
each Class B Shareholder that (a) the LLC is duly authorized to
execute, deliver and perform this Agreement; (b) this Agreement has been duly
authorized, executed and delivered by the LLC and is a valid and binding
agreement of the LLC, enforceable against the LLC in accordance with its
terms; and (c) the execution, delivery and performance by the LLC of this
Agreement does not violate or conflict with or result in a breach by the
LLC of or constitute (or with notice or lapse of time or both constitute) a
default by the LLC under its Certificate of Formation or the Operating
Agreement, any existing applicable law, rule, regulation, judgment, order,
or
decree of any Governmental Entity exercising any statutory or regulatory
authority of any of the foregoing, domestic or foreign, having jurisdiction
over the LLC or any of its Subsidiaries or any of their respective
properties or assets, or any agreement or instrument to which the LLC or
any of its Subsidiaries is a party or by which the LLC or any of its
Subsidiaries or any of their respective properties or assets may be
bound.
ARTICLE
VIII
MISCELLANEOUS
SECTION
8.1 NOTICES. All
notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument delivered
in person or sent by facsimile or electronic mail or nationally recognized
overnight courier, addressed to such party at the address, facsimile number
or
electronic mail address set forth below or such other address, facsimile number
or electronic mail address as may hereafter be designated in writing by such
party to the other parties:
(a)
if to the LLC, to:
Och-Ziff
Capital Management Group LLC
11
0
Xxxx
00xx Xxxxxx,
00xx
Xxxxx\
Xxx
Xxxx, Xxx
Xxxx 00000
(T)
(000)
000-0000
(F)
(000)
000-0000
(E)
Xxxxxxx.Xxxxxxxxxx@xxxxx.xxx
Attention:
Chief Legal Officer and Chief Financial Officer
with
a copy
to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx
Xxxxx
Xxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
(T)
(000)
000-0000
(F)
(000)
000-0000
Attention:
Xxxxxxxx X. Xxxxxx, Esq.
(b) if
to the Class B Shareholder Committee, to:
Class
B
Shareholder Committee
c/o
Och-Ziff
Capital Management Group LLC
0
Xxxx
00xx Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
(T)
(000)
000-0000
(F)
(000)
000-0000
Attention: Chairman
(c) if
to any of the Class B Shareholders, to the address, facsimile number or
electronic mail address set forth for such Class B Shareholders in the records
of the LLC.
SECTION
8.2 INTERPRETATION. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "included", "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
SECTION
8.3 SEVERABILITY. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or entity or any
circumstance, is found to be invalid or unenforceable in any jurisdiction,
(a) a
suitable and equitable provision shall be substituted therefor in order to
carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement
and
the application of such provision to other Persons or circumstances shall not
be
affected by such invalidity or unenforceability, nor shall such invalidity
or
unenforceability affect the validity or enforceability of such provision, or
the
application thereof, in any other jurisdiction.
SECTION
8.4 COUNTERPARTS. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original and all of which shall, taken together, be considered one
and
the same agreement, it being understood that both parties need not sign the
same
counterpart.
12
SECTION
8.5 ENTIRE
AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement (a)
constitutes the entire agreement and supersedes all other prior agreements,
both
written and oral, among the parties with respect to the subject matter hereof
and (b) is not intended to confer upon any Person, other than the parties hereto
any rights or remedies hereunder.
SECTION
8.6 FURTHER
ASSURANCES. Each party shall execute, deliver, acknowledge and file
such other documents and take such further actions as may be reasonably
requested from time to time by the other party hereto to give effect to and
carry out the transactions contemplated herein.
SECTION
8.7 GOVERNING
LAW; EQUITABLE REMEDIES. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT
GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF). The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were
not
performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties hereto shall be
entitled to an injunction or injunctions and other equitable remedies to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any of the Selected Courts (as defined below), this being in addition
to any other remedy to which they are entitled at law or in
equity. Any requirements for the securing or posting of any bond with
respect to such remedy are hereby waived by each of the parties
hereto. Each party further agrees that, in the event of any action
for an injunction or other equitable remedy in respect of such breach or
enforcement of specific performance, it will not assert the defense that a
remedy at law would be adequate.
SECTION
8.8 CONSENT
TO JURISDICTION. With respect to any suit, action or proceeding
("Proceeding") arising out of or relating to this Agreement or any
transaction contemplated hereby, each of the parties hereto hereby irrevocably
(i) submits to the exclusive jurisdiction of the United States District Court
for the Southern District of New York or the Court of Chancery located in the
State of Delaware, County of Newcastle (the "Selected Courts") and waives
any objection to venue being laid in the Selected Courts whether based on the
grounds of forum non conveniens or otherwise and hereby agrees not to commence
any such Proceeding other than before one of the Selected Courts;
provided, however, that a party may commence any Proceeding in a
court other than a Selected Court solely for the purpose of enforcing an order
or judgment issued by one of the Selected Courts; (ii) consents to service
of
process in any Proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, or by recognized international express carrier
or delivery service, to the LLC or the Class B Shareholders at their respective
addresses referred to in Section 8.1 hereof; provided, however,
that nothing herein shall affect the right of any party hereto to serve process
in any other manner permitted by law; and (iii) TO THE EXTENT NOT
PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, WAIVES, AND COVENANTS THAT
IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT
TO
TRIAL BY JURY IN ANY ACTION ARISING IN
13
WHOLE
OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE CONTEMPLATED
TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN
CONTRACT, TORT OR OTHERWISE, AND AGREES THAT ANY OF THEM MAY FILE A COPY OF
THIS
PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO
TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS
AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS WILL INSTEAD BE TRIED IN
A
COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A
JURY.
SECTION
8.9 AMENDMENTS;
WAIVERS.
(a) No
provision of this Agreement may be amended or waived unless such amendment
or
waiver is in writing and signed, in the case of an amendment, by the LLC and
the
Class B Shareholder Committee, or in the case of a waiver, by the LLC if
the waiver is to be effective against it or the Class B Shareholder Committee
if
the waiver is to be effective against it or any Class B
Shareholder. Notwithstanding the foregoing, no amendment or waiver
for the purpose of or having the effect of (i) increasing the duration of the
voting proxy set forth in Section 2.3 or (ii) expanding the restrictions on
transfer set forth in Section 3.1 shall be effective without the prior written
consent of each Class B Shareholder affected by such proposed waiver or
amendment.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION
8.10 ASSIGNMENT. Neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
by any of the parties hereto without the prior written consent of the other
parties, except as set forth in Article III. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and
be
enforceable by the parties and their respective successors and
assigns.
SECTION
8.11 LEGENDS. Each
Class B Shareholder hereby agrees that a legend will be affixed to any
certificates representing the Class B Shares stating that such Class B Shares
are subject to the irrevocable voting proxy and transfer restrictions set forth
in this Agreement.
SECTION
8.12 ACTIONS
IN OTHER CAPACITIES. Nothing in this Agreement shall limit,
restrict or otherwise affect any actions taken by any member of the Class B
Shareholder Committee in his capacity as an officer, partner, employee, member
or member of the Board of the LLC or any of its Subsidiaries or Controlled
Affiliates.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
14
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered, all as of the date first set forth above.
|
OCH-ZIFF
CAPITAL MANAGEMENT
GROUP
LLC
|
||
|
By:
|
/s/
Xxxx Xxxxx
|
|
|
Name: Xxxx
Xxxxx
Title:
Chief Financial Officer
|
||
|
CLASS
B SHAREHOLDERS
|
||
|
/s/
Xxxxxx X. Och
|
||
|
Xxxxxx
X. Och
|
||
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
Xxxxx
Xxxxxxxxx
|
||
|
/s/
Xxxx Xxxxx
|
||
|
Xxxx
Xxxxx
|
||
|
/s/
Arnaud Achache
|
||
|
Arnaud
Achache
|
||
|
/s/
Xxxxxxx Xxxxxxx
|
||
|
Xxxxxxx
Xxxxxxx
|
||
|
/s/
Xxxxx-Xxxxx Xxxxx
|
||
|
Xxxxx-Xxxxx
Xxxxx
|
||
|
/s/
Xxxxxxx Xxxxx
|
||
|
Xxxxxxx
Xxxxx
|
||
|
/s/
Xxxxxxx Xxxxx
|
||
|
Xxxxxxx
Xxxxx
|
||
|
/s/
Xxxxxxx Xxxxx
|
||
|
Xxxxxxx
Xxxxx
|
||
|
/s/
Xxxxxx Xxxxx
|
||
|
Xxxxxx
Xxxxx
|
||
|
/s/
Xxxx Xxxx
|
||
|
Xxxx
Xxxx
|
||
|
/s/
Xxx Xxxxx
|
||
|
Xxx
Xxxxx
|
||
|
/s/
Xxxxx X'Xxxxxx
|
||
|
Xxxxx
X'Xxxxxx
|
||
|
/s/
Xxxxxx Xxxx
|
||
|
Xxxxxx
Xxxx
|
||
|
/s/
Xxxx Xxxx
|
||
|
Xxxx
Xxxx
|
||
|
/s/
Xxxx Xxxxxxxx
|
||
|
Xxxx
Xxxxxxxx
|
||
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
Xxxxx
Xxxxxxxxx
|
||
|
/s/
Xxxxxx Xxxxx
|
||
|
Xxxxxx
Xxxxx
|
||
