1
Exhibit 10.39
AMENDMENT NO. 1 TO THE
ACQUISITION AGREEMENT
by and among
XXXXX/XXXXXX ADVISERS,
EUCLID ADVISORS LLC,
XXXXX ADVISORS INC.,
XXXXX TOTAL RETURN ADVISORS, INC.,
XXXXX SECURITIES CORP.,
THE EQUITYHOLDERS NAMED HEREIN,
AND
PHOENIX INVESTMENT PARTNERS, LTD.
Dated as of March 1, 1999
2
This AMENDMENT NO. 1 to the Acquisition Agreement (this "Amendment No. 1")
is entered into as of this 1st day of March, 1999 by and among Phoenix
Investment Partners, Ltd. ("Buyer") Xxxxx/Xxxxxx Advisers, Euclid Advisors
LLC, Xxxxx Advisors Inc., Xxxxx Total Return Advisors, Inc., Xxxxx
Securities Corp., the Equityholders (collectively, the "Parties").
WHEREAS, the Parties have entered into an Acquisition Agreement, dated as
of December 15, 1998 (the "Original Agreement: and, as amended by this
Amendment No. 1, the "Acquisition Agreement");
WHEREAS, the Parties desire to amend the Original Acquisition Agreement
pursuant to Section 11.8(a) of the Original Acquisition Agreement;
WHEREAS, capitalized terms used herein and not defined herein shall have
the respective meanings given in the Original Acquisition Agreement;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in the Original Acquisition Agreement, the
Parties agree as follows:
SECTION 1. The definition of "Closing Run Rate Revenues" in Section 1.1 of
the Original Acquisition Agreement is amended to add the following proviso to
the end of the last sentence of such definition:
;provided, however, that the assets managed under the Legends Fund, Inc.
shall not be excluded from the calculation of the Closing Run Rate Revenues for
the purpose of determining the Closing Date Payment Amount pursuant to Section
2.4 if (x) the consents required by Section 6.2 shall have been obtained on or
prior to the date of the final determination of the Post-Closing Payment
Adjustment and (y) all sub-advisory fees (other than a deduction of 35.3% of
such fees for the period of March 1, 1999 to March 4, 1999) which Buyer would
have been entitled to receive in respect of the Legends Fund, Inc. had such
consents been obtained on or prior to the Closing Date shall have been paid to
Buyer on or prior to the date of the final determination of the Post-Closing
Payment Adjustment
SECTION 2. Article 2 is amended to add the following Section 2.7;
2.7 Adjustment to Estimated Closing Date Payment Amount
If the consents with respect to the Legends Fund, Inc. required by Section
6.2 shall have been obtained after the Closing and prior to the final
determination of the Post-Closing Payment Adjustment and the Equityholder
Designee shall have presented Buyer with a certificate to such effect and
Buyer shall have received the sub-advisory fees referred to in clause (y)
of the proviso in Section 1 above, Buyer shall promptly deliver to the
Equityholder Designee on behalf of the Equityholders in accordance with
Wire Transfer instructions provided by the Equityholder Designee for such
purpose, an amount equal to (a) the Estimated Closing Date Payment Amount
determined with the assets managed under the Legends Fund, Inc. included
in the calculation of the Closing Run Rate Revenues less (b) the Estimated
Closing Date Payment Amount paid by Buyer at Closing. For the purposes of
determining the Post-Closing Payment Adjustment pursuant to Section
2.4(b), the Estimated Closing Date Payment amount shall be deemed to
include any payment made pursuant to this Section 2.7.
SECTION 3. Article 4 is amended to add the following Section 4.33:
4.33 Fund Board Approval for Legends Fund, Inc.
The Fund Board of Legends Fund, Inc. has approved a new sub-advisory
agreement with Buyer and has recommended approval thereof by the
shareholders of Legends Fund, Inc.
3
IN WITNESS WHEREOF, the parties have duly executed this
Amendment No. 1, effective as of the date first written above.
PHOENIX INVESTMENT PARTNERS, LTD.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Sr. V.P. and CFO
XXXXX/XXXXXX ADVISERS
By: XXXXXX CORP.,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney-in-Fact
By: XXXXX MANAGEMENT CORP.,
General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: President
EUCLID ADVISORS LLC
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXX ADVISORS INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXX TOTAL RETURN ADVISORS, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXX SECURITIES CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
EQUITYHOLDERS
XXXXXX CORP.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Attorney-in-Fact
XXXXX MANAGEMENT CORP.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: President
EQUITYHOLDER DESIGNEE,
on his own behalf and as attorney-in-fact
for the other individual Equityholders
listed on Schedule A hereto
/s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
