REGISTRATION RIGHTS AGREEMENT OF OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC Dated as of November 19, 2007
Exhibit 6
OF
OCH-ZIFF
CAPITAL MANAGEMENT GROUP LLC
Dated
as of November 19, 2007
Table
of Contents
Page
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ARTICLE
I
DEFINITIONS
AND OTHER MATTERS
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||
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Section
1.1
|
Definitions
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1
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Section
1.2
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Definitions
Generally
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6
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ARTICLE
II
REGISTRATION
RIGHTS
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||
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Section
2.1
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Exchange
Registration.
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7
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Section
2.2
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Demand
Registration
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7
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Section
2.3
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Shelf
Registration.
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9
|
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Section
2.4
|
Suspension
of Use of Registration Statement
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10
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Section
2.5
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Piggyback
Registration
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11
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|
Section
2.6
|
Lock-Up
Agreements
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13
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Section
2.7
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Registration
Procedures
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13
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Section
2.8
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Indemnification
by the Company
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16
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Section
2.9
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Indemnification
by Registering Covered Persons
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17
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Section
2.10
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Conduct
of Indemnification Proceedings
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18
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Section
2.11
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Contribution
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18
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Section
2.12
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Participation
in Underwritten Public Offering
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19
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Section
2.13
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Other
Indemnification
|
19
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|
Section
2.14
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Cooperation
by the Company
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19
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Section
2.15
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Parties
in Interest
|
19
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Section
2.16
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Acknowledgement
Regarding the Company
|
19
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Section
2.17
|
Mergers,
Recapitalizations, Exchanges or Other Transactions Affecting Registrable
Securities
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20
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ARTICLE
III
MISCELLANEOUS
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Section
3.1
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Term
of the Agreement; Termination of Certain Provisions
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20
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Section
3.2
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Amendments;
Waiver
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20
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|
Section
3.3
|
Governing
Law
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21
|
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Section
3.4
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Submission
to Jurisdiction; Waiver of Jury Trial
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21
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Section
3.5
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Notices
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22
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Section
3.6
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Severability
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23
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Section
3.7
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Specific
Performance
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23
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Section
3.8
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Assignment;
Successors
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23
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Section
3.9
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No
Third-Party Rights
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23
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Section
3.10
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Section
Headings
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23
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i
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Section
3.11
|
Execution
in Counterparts
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23
|
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Appendix
A
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Covered
Persons
|
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Appendix
B
|
Covered
Person Questionnaire
|
ii
This
REGISTRATION RIGHTS AGREEMENT (including Appendix A hereto, as such Appendix
A
may be amended from time to time pursuant to the provisions hereof, this
“Agreement”), is made and entered into as of November 19, 2007, by and
among Och-Ziff Capital Management Group LLC, a Delaware limited liability
company (the “Company”), and the Covered Persons (defined below) from time to
time party hereto.
WHEREAS,
the Covered Persons are holders of Och-Ziff Operating Group A Units (defined
below), which, subject to certain restrictions and requirements, are
exchangeable at the option of the holder thereof with the Och-Ziff Operating
Group (defined below), pursuant to the Exchange Agreement (defined below) for
Class A Shares (defined below) or, at the option of the Och-Ziff Operating
Group, the cash equivalent thereof; and
WHEREAS,
the Company desires to provide the Covered Persons with registration rights
with
respect to Class A Shares that may be delivered in exchange for their Och-Ziff
Operating Group A Units and any other Class A Shares they may otherwise hold
from time to time.
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements,
covenants and provisions herein contained, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
AND OTHER MATTERS
Section
1.1 Definitions. Capitalized
terms used in this Agreement without other definition shall, unless expressly
stated otherwise, have the meanings specified in this Section 1.1:
“Affiliate”
means any other person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control of such
first person and “control” for these purposes means the direct or indirect power
to direct or cause the direction of the management and policies of another
person, whether by operation of law or regulation, through ownership of
securities, as trustee or executor or in any other manner.
“Agreement”
has the meaning ascribed to such term in the Recitals.
“Beneficial
owner” has the meaning set forth in Rule 13d-3 under the Exchange
Act.
“Board”
means the Board of Directors of the Company.
“Chairman” shall
mean the Chairman of the Demand Committee, who shall be the Chairman of the
Partner Management Committee as determined pursuant to the applicable Och-Ziff
Operating Group Agreements. Initially, Xxxxxx Xxx shall serve as
Chairman.
“Class
A Shares” means Class A shares representing limited liability company
interests in the Company.
“Class
B Shares” means Class B shares representing limited liability company
interests in the Company.
“Company”
has the meaning ascribed to such term in the Recitals.
“Covered
Person” means those persons from time to time listed on Appendix A hereto,
and all persons who may become parties to this Agreement and whose name is
required to be listed on Appendix A hereto, in each case in accordance with
the
terms hereof.
“Covered
Och-Ziff Operating Group A Units” means, with respect to a Covered Person,
such Covered Person’s Och-Ziff Operating Group A Units.
“Demand
Committee” shall mean a committee consisting of the individuals that are
from time to time members of the Partner Management Committee as determined
pursuant to the applicable Och-Ziff Operating Group Agreements. The
Chairman of the Demand Committee shall be the same as the Chairman of the
Partner Management Committee, and the Chairman of the Demand Committee shall
have the sole and exclusive right and authority to take any action (including,
without limitation, the exercise of any demand or request for registration
and
the consent to any amendment of this Agreement) pursuant to this Agreement
on
behalf of the Demand Committee, provided, however, that if and
to the extent that at any time no Chairman of the Partner Management Committee
exists and, therefore, no Chairman of the Demand Committee exists, any such
action may be taken by a simple majority of the members of the Demand
Committee. In addition, on and after the fifth anniversary of the
date of this Agreement, any such action may be taken by the Chairman of the
Demand Committee or by a simple majority of the Demand Committee (whether or
not
the Chairman, if any, votes in favor of such action).
“Demand
Notice” has the meaning ascribed to such term in Section
2.2(a).
“Demand
Registration” has the meaning ascribed to such term in Section
2.2(a).
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“Exchange
Agreement” means the exchange agreement dated as of the date hereof among
the Company, each of the Och-Ziff Operating Group entities and the limited
partners of each Och-Ziff Operating Group entity, as amended from time to
time.
“Exchange
Registration” has the meaning ascribed to such term in Section
2.1(a).
“FINRA”
means the Financial Industry Regulatory Authority.
“Governmental
Authority” means any national, local or foreign (including U.S. federal,
state or local) or supranational (including European Union) governmental,
judicial, administrative or regulatory (including self-regulatory) agency,
commission, department, board, bureau, entity or authority of competent
jurisdiction.
“Indemnified
Parties” has the meaning ascribed to such term in Section 2.8.
“Indemnifying
Party” has the meaning ascribed to such term in Section 2.10.
“Maximum
Covered Person Participation Amount” has the meaning ascribed to such term
in Section 2.5(a).
“Maximum
Demand Offering Size” has the meaning ascribed to such term in Section
2.2(e).
“Maximum
Piggyback Offering Size” has the meaning ascribed to such term in Section
2.5(b).
“New
York Courts” has the meaning ascribed to such term in Section
3.4.
“Och-Ziff”
means the Company and its consolidated subsidiaries, including the Och-Ziff
Operating Group.
“Och-Ziff
Operating Group” means, collectively, persons directly controlled by
Och-Ziff Holding Corporation, a Delaware corporation, or Och-Ziff Holding LLC,
a
Delaware limited liability company, during the term of this
Agreement. 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 other organizational documents of each of the entities within
the
Och-Ziff Operating Group, as the same may be amended or implemented from time
during the term of this Agreement.
“Och-Ziff
Operating Group A Units” means, collectively, the units designated as the
“Class A common units” representing limited partnership interests in each of the
entities within the Och-Ziff Operating Group issued under the applicable
Och-Ziff Operating Group Agreement on or prior to the date hereof.
“Partner
Management Committee” shall mean 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
Transferee” means any transferee of an Och-Ziff Operating Group A Unit after
the date hereof, the transfer of which was permitted by the Och-Ziff Operating
Group Agreements.
“Piggyback
Registrable Securities” means Registrable Securities then held by Covered
Persons or to be held by Covered Persons upon an exchange pursuant to the
Exchange Agreement occurring in connection with a Piggyback Registration
hereunder.
“Pro
Rata Basis” means a pro rata amount, determined based on the sum of (i) the
number of Class A Shares held of record by each relevant Person as of such
date
of determination and (ii) any Class A Shares that each relevant Person has
the
right to acquire in the future as a result of any exchange, conversion, exercise
or settlement of any securities or rights held of record by such Person as
of
such date of determination (disregarding for such purposes all vesting
provisions and transfer restrictions and assuming that all of such securities
or
rights are settled in Class A Shares).
“Proposed
Participation Amount” means the aggregate number of Class A Shares each
relevant Person has validly elected to include in any Demand Registration or
Piggyback Registration, as applicable.
“Registering
Covered Person” has the meaning ascribed to such term in Section
2.7(a).
“Registrable
Securities” means Class A Shares that may be delivered in exchange for
Och-Ziff Operating Group A Units or otherwise held by Covered Persons from
time
to time. For purposes of this Agreement, Registrable Securities shall cease
to
be Registrable Securities when
(i)
a registration statement covering resales of such Registrable Securities has
been declared effective under the Securities Act by the SEC and such Registrable
Securities have been disposed of pursuant to such effective Registration
Statement or (ii) such Registrable Securities cease to be outstanding (or
issuable upon exchange of Och-Ziff Operating Group A
Units). Registrable Securities shall not include any such Class A
Shares covered by an Exchange Registration (as defined in Section 2.1(a)) and
delivered in exchange for Och-Ziff Operating Group A Units held by persons
who
are not “affiliates” (as such term is defined in Rule 144 promulgated under the
Securities Act) of the Company.
“Registration
Expenses” means any and all expenses incident to the performance of or
compliance with any registration or marketing of Registrable Securities,
including all (i) SEC and securities exchange registration and filing fees,
and
all other fees and expenses payable in connection with the listing of securities
on any securities exchange or automated interdealer quotation system, (ii)
fees
and expenses of compliance with any securities or “blue sky” laws (including
reasonable fees and disbursements of counsel in connection with “blue sky”
qualifications of the securities registered), (iii) expenses in connection
with
the preparation, printing, mailing and delivery of any registration statements,
prospectuses and other documents in connection therewith and any amendments
or
supplements thereto, (iv) security engraving and printing expenses, (v)
reasonable fees and disbursements of counsel for Och-Ziff and customary fees
and
expenses for independent certified public accountants retained by Och-Ziff,
(vi)
reasonable fees and expenses of any special experts retained by Och-Ziff in
connection with such registration, (vii) reasonable fees, out-of-pocket costs
and expenses of the Covered Persons, including one counsel for all of the
Covered Persons participating in the offering selected by the Demand Committee,
(viii) fees and expenses in connection with any review by FINRA of the
underwriting arrangements or other terms of the offering, and all fees and
expenses of any “qualified independent underwriter,” including the fees and
expenses of any counsel thereto, (ix) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but excluding any
underwriting fees, discounts and commissions attributable to the sale of
Registrable Securities, (x) costs of printing and producing any agreements
among
underwriters, underwriting agreements, any “blue sky” or legal investment
memoranda and any selling agreements and other documents in connection with
the
offering, sale or delivery of the Registrable Securities, (xi) transfer agents’
and registrars’ fees and expenses and the fees and expenses of any other agent
or trustee appointed in connection with such offering, (xii) expenses relating
to any analyst or investor presentations or any “road shows” undertaken in
connection with the registration, marketing or selling of the Registrable
Securities and (xiii) all out-of-pocket costs and expenses incurred by Och-Ziff
or their appropriate officers in connection with their compliance with Section
2.7(l).
“Required
Third-Party Piggyback Securities” shall mean the number of Class A Shares
that the Company is required to include in any Demand Registration, Piggyback
Registration or Resale Shelf Registration hereunder pursuant to the terms of
any
Third-Party Agreement.
“Resale
Shelf Registration” has the meaning ascribed to such term in Section
2.3(a).
“Resale
Shelf Registration Statement” has the meaning ascribed to such term in
Section 2.3(a).
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Shelf
Registration” has the meaning ascribed to such term in Section
2.2(c).
“Third-Party
Agreement” means any agreement by and between the Issuer and any Person that
is not a Covered Person that holds or has a right to acquire Class A Shares,
pursuant to which such Person has the right to require the Company to include
such Class A Shares in a registration statement filed by the Company (whether
or
not for its own account) under the Securities Act.
“Underwritten
Public Offering” means an underwritten public offering pursuant to an
effective registration statement under the Securities Act.
“Ziffs”
means, collectively, Ziff Investors Partnership, X.X. XX and Ziff Investors
Partnership, L.P. IIA.
Section
1.2 Definitions
Generally. Wherever
required by the context of this Agreement, the singular shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa, and references to any agreement, document or instrument
shall be deemed to refer to such agreement, document or instrument as amended,
supplemented or modified from time to time. When used
herein:
(a) the
word “or” is not exclusive;
(b) the
words “including,” “includes,” “included” and “include” are deemed to
be followed by the words “without limitation”;
(c) the
terms “herein,” “hereof” and “hereunder” and other words of similar import
refer to this Agreement as a whole and not to any particular section, paragraph
or subdivision;
(d) the
word “person” means any individual, corporation, limited liability company,
trust, joint venture, association, company, partnership or other legal entity
or
a government or any department or agency thereof or self-regulatory
organization; and
(e) all
section, paragraph or clause references not attributed to a particular document
shall be references to such parts of this Agreement, and all exhibit, annex
and
schedule references not attributed to a particular document shall be references
to such exhibits, annexes and schedules to this Agreement.
ARTICLE
II
REGISTRATION
RIGHTS
Section
2.1 Exchange
Registration.
(a) The
Company may, in its sole discretion, elect to file and cause to be declared
effective under the Securities Act by the SEC one or more registration
statements on any appropriate form (the “Exchange Registration”) covering
the delivery by the Company or its subsidiaries, from time to time, to the
Covered Persons of Class A Shares registered under the Securities Act in
exchange for such Och-Ziff Operating Group A Units.
(b) If
the Company elects to utilize an Exchange Registration, it shall give prompt
notice of such election to the Demand Committee, which notice shall include
the
anticipated filing date of the registration statement relating to such Exchange
Registration. The notice referred to in this Section 2.1(b) may be
revoked at any time.
(c) If
the Company elects to utilize an Exchange Registration, it shall be liable
for
and pay all Registration Expenses in connection with any Exchange Registration,
regardless of whether such registration is effected.
(d) The
Company shall have no obligation pursuant to this Section 2.1 to file an
Exchange Registration, cause an Exchange Registration to be declared effective,
maintain the effectiveness of an Exchange Registration or deliver Class A Shares
to a Covered Person pursuant to an Exchange Registration.
Section
2.2 Demand
Registration.
(a) If
at any time prior to the fifth anniversary of the date of consummation of
the Company’s initial public offering the Company shall receive a written
request (a “Demand Notice”) from the Demand Committee that the Company
effect the registration under the Securities Act of all or any portion of the
Registrable Securities specified in the
Demand
Notice (a “Demand Registration”), specifying the information set forth
under Section 2.7(i), then the Company shall use its commercially reasonable
efforts to effect, as expeditiously as reasonably practicable, subject to the
restrictions in Section 2.4, the registration under the Securities Act of the
Registrable Securities for which the Demand Committee has requested registration
under this Section 2.2, all to the extent necessary to permit the disposition
(in accordance with the intended methods thereof as specified) of such
Registrable Securities. If the Demand Committee elects to effect a
Demand Registration, the provisions of Section 2.5(a) with respect to the
notices required and the determination of the number of Piggyback Registrable
Securities to be included in a Piggyback Registration shall apply
mutatis mutandis to such Demand Registration, but the
inclusion of such Registrable Securities pursuant to this Section 2.2 shall
be
treated as part of the Demand Registration and not as a Piggyback Registration
hereunder.
(b) The
Demand Committee may request an unlimited number of Demand Registrations at
any
time prior to the fifth anniversary of the date of consummation of the
Company’s initial public offering, subject to the limitations set forth in
Section 2.4.
(c) Subject
to the availability of Form S-3 or any successor registration form to effect
a
Demand Registration, at the request of the Demand Committee, any Demand
Registration shall be a shelf registration effected in accordance with Rule
415
under the Securities Act or any successor or similar rule (a “Shelf
Registration”).
(d) At
any time, the Demand Committee may revoke such Demand Registration request
by
providing a notice to the Company revoking such request. The Company
shall be liable for and pay all Registration Expenses in connection with any
Demand Registration, whether or not so revoked.
(e) At
the request of the Demand Committee, the Demand Registration shall involve
an Underwritten Public Offering. If a Demand Registration involves
an Underwritten Public Offering and the managing underwriter advises the
Company and the Demand Committee that, in its view, the number of Registrable
Securities and other securities requested to be included in such registration
exceeds the largest number of Class A Shares that can be sold without having
a
material adverse effect on such offering, including the price at which such
shares can be sold (the “Maximum Demand Offering Size”),
the Company shall include in such Demand Registration, in the priority listed
below, up to the Maximum Demand Offering Size:
(i) first,
all Registrable Securities requested to be registered in the Demand
Registration by the Demand Committee and all Required Third-Party Piggyback
Securities (allocated as between the Covered Persons that have elected to
participate in such Demand Registration in the aggregate and the holders of
Required Third-Party Piggyback Securities in the aggregate on a Pro Rata
Basis, and further allocated among the Covered Persons participating in
such Demand
Registration on
a pro rata basis based on their respective Proposed Participation Amount, in
each case, as and if necessary to ensure that the offering does not to exceed
the Maximum Demand Offering Size); and
(ii) second,
any securities proposed to be registered by the Company or any securities
proposed to be registered for the account of any other persons, with such
priorities among them as the Company shall determine.
Section
2.3 Shelf
Registration.
(a) The
Company shall prepare and file, at its own expense, not later than the fifth
anniversary of the date of consummation of the Company’s initial public
offering, a “shelf” registration statement with respect to the resale of all
Registrable Securities (“Resale Shelf Registration”) by the Covered
Persons on an appropriate form for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (the “Resale
Shelf Registration Statement”) and permitting registration of such
Registrable Securities for resale by such Covered Persons in accordance with
the
methods of distribution elected by the Covered Persons pursuant to the
questionnaire referred to in paragraph (b) below and set forth in the Resale
Shelf Registration Statement. The Company shall use its reasonable efforts
to
cause the Resale Shelf Registration Statement to be declared effective by the
SEC as promptly as reasonably practicable after the filing thereof, and, subject
to Sections 2.3(c) and 2.4, to keep such Resale Shelf Registration Statement
continuously effective for a period ending when all Class A Shares of the
Company covered by the Resale Shelf Registration Statement are no longer
Registrable Securities. The Demand Committee shall have the right to request
that an Underwritten Public Offering be effected off the Resale Shelf
Registration at any time, subject to Section 2.4. Any such
Underwritten Public Offering shall be subject to the same priority provisions
as
set forth in Section 2.2(e).
(b) The
Company shall give written notice to all Covered Persons at least 20 business
days prior to the anticipated filing date of the Resale Shelf Registration
Statement, which notice shall include a questionnaire in the form set forth
in
Appendix B hereto. At the time the Resale Shelf Registration
Statement is declared effective, each Covered Person that has delivered to
the
Company a duly completed and executed questionnaire on or prior to the date
which is ten business days prior to such time of effectiveness shall be named
as
a selling securityholder in the Resale Shelf Registration Statement and the
related prospectus in such a manner as to permit such Covered Person to deliver
such prospectus to purchasers of Registrable Securities in accordance with
applicable law. If required by applicable law, subject to the terms and
conditions hereof, after effectiveness of the Resale Shelf Registration
Statement, the Company shall file a supplement to such prospectus or amendment
to the Resale Shelf Registration Statement not less than once a quarter as
necessary to name as selling securityholders therein any Covered Persons that
provide to the Company a duly completed and executed questionnaire in the form
set forth in Appendix B hereto and shall use reasonable efforts
to
cause any post-effective amendment to such Resale Shelf Registration Statement
filed for such purpose to be declared effective by the SEC as promptly as
reasonably practicable after the filing thereof.
(c) The
Company shall prepare and file such additional registration statements as
necessary every three years (or such other period of time as may be required
to
maintain continuously effective shelf registration statements) and use its
commercially reasonable efforts to cause such registration statements to be
declared effective by the SEC so that a shelf registration statement remains
continuously effective, subject to Section 2.4, with respect to resales of
Registrable Securities as and for the periods required under Section 2.3(a),
such subsequent registration statements to constitute a Resale Shelf
Registration Statement hereunder.
Section
2.4 Suspension of
Use of Registration Statement.
(a) Upon
prior written notice to the Demand Committee and the Covered Persons, the
Company may postpone effecting a registration (or suspend the use of a Resale
Shelf Registration Statement or Shelf Registration) pursuant to Section 2.2
and
Section 2.3 on up to three occasions during any period of six consecutive months
for a reasonable time specified in the notice but not exceeding 120 days in
the
aggregate (which period may not be extended or renewed), if (i) the Board
determines in good faith that effecting the registration (or permitting sales
under an effective registration) would materially and adversely affect an
offering of securities of the Company; (ii) a Demand Registration or a
Piggyback Registration (defined in Section 2.5(a) below) in which Covered
Persons were able to participate was completed within the prior 90 days; or
(iii) the Company is in possession of material non-public information and the
Board determines in good faith that the disclosure of such information during
the period specified in such notice would not be in the best interests of the
Company.
(b) If
all reports required to be filed by the Company pursuant to the Exchange Act
have not been filed by the required date without regard to any extension, or
if
the consummation of any business combination by the Company has occurred or
is
probable for purposes of Rule 3-05 or Article 11 of Regulation S-X promulgated
under the Securities Act or any similar successor rule, upon written notice
thereof by the Company to the Demand Committee and the Covered Persons, the
rights of the Demand Committee and the Covered Persons to offer, sell or
distribute any Registrable Securities pursuant to any registration statement
or
to require the Company to take action with respect to the registration or sale
of any Registrable Securities pursuant to any registration statement shall
be
suspended until the date on which the Company has filed such reports or obtained
and filed the financial information required by Rule 3-05 or Article 11 of
Regulation S-X to be included or incorporated by reference, as applicable,
in a
registration statement, and the Company shall notify the Demand Committee and
the Covered Persons in writing as promptly as practicable when such suspension
is no longer required.
Section
2.5 Piggyback
Registration.
(a) Subject
to any contractual obligations to the contrary, if the Company proposes at
any
time to register any Class A Shares under the Securities Act (other than an
Exchange Registration or a registration on Form S-8 or Form S-4, or any similar
successor forms), whether or not for sale for its own account, the Company
shall
each such time give prompt written notice at least 20 business days prior to
the
anticipated filing date of the registration statement relating to such
registration to the Demand Committee, which notice shall offer the Demand
Committee the opportunity to elect to include in such registration statement
the
number of Registrable Securities held by Covered Persons as the Demand Committee
may request (the “Maximum Covered Person Participation
Amount”), subject to the provisions of Section 2.5(b) (a “Piggyback
Registration”).
If
the Demand Committee elects to
effect a Piggyback Registration, the Company shall give written notice of the
registration statement relating to such Piggyback Registration to all Covered
Persons at least 15 business days prior to such anticipated filing date (which
date shall be specified in such notice), and any Covered Person electing to
participate in such Piggyback Registration shall notify the Demand Committee
and
the Company at least 10 business days prior to any such anticipated filing
date
of its election to include Registrable Securities in such Piggyback
Registration. Each Covered Person electing to so participate may
elect to include, in the Piggyback Registration, Piggyback Registrable
Securities in an amount up to that number of Piggyback Registrable Securities
then held by such Covered Person multiplied by a fraction, the numerator of
which shall be the Maximum Covered Person Participation Amount and the
denominator of which shall be the aggregate number of Piggyback Registrable
Securities then held by all Covered Persons electing to participate in such
Piggyback Registration; provided, that if any Covered Person elects not
to participate in such Piggyback Registration up to its portion of the Maximum
Covered Person Participation Amount as provided above, the Demand Committee
shall have the sole discretion to permit the other Covered Persons to include
in
such Piggyback Registration additional Piggyback Registrable Securities in
the
same proportions as determined above; and provided further, that the
participation of each Covered Person in any such Piggyback Registration shall
be
reduced (without duplication) by the aggregate number of Registrable Securities
sold by such Covered Person and its Permitted Transferees pursuant to Rule
144
under the Securities Act or another exemption from the registration requirements
of the Securities Act prior to the date of such Piggyback
Registration. Any determination with respect to the number of
Registrable Securities that may be included in any Piggyback Registration by
any
Covered Person shall be made by the Demand Committee in accordance with this
Agreement and such determination shall be final.
Upon the
request of the Demand
Committee, the Company shall use its commercially reasonable efforts to effect
the registration under the Securities Act of all Registrable Securities that
the
Company has been so requested to register by the Demand
Committee,
to the extent necessary to permit the disposition of such Registrable Securities
to be so registered, provided, that: (i) if such registration
involves an Underwritten Public Offering, all such Covered Persons to be
included in the Company’s registration must sell their Registrable Securities to
the underwriters selected by the Company on the same terms and conditions as
apply to the Company or any other selling person, as applicable, and (ii) if,
at
any time after giving notice of its intention to register any securities
pursuant to this Section 2.5(a) and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, the Company
shall give written notice to all such Covered Persons and, thereupon, shall
be
relieved of its obligation to register any Registrable Securities in connection
with such registration. No registration effected under this Section
2.5 shall relieve the Company of its obligations to effect a Demand Registration
to the extent required by Section 2.2 or a Resale Shelf Registration to the
extent required by Section 2.3. The Company shall pay all Registration Expenses
in connection with each Piggyback Registration.
(b) Subject
to any contractual obligations to the contrary, if a Piggyback Registration
involves an Underwritten Public Offering and the managing underwriter
advises the Company that, in its view, the number of Registrable Securities
and
other securities intended to be included in such registration exceeds the
largest number of Class A Shares that can be sold without having a material
adverse effect on such offering, including the price at which such shares can
be
sold (the “Maximum Piggyback Offering Size”), the
Company shall include in such registration, in the following priority, up to
the
Maximum Piggyback Offering Size:
(i) first,
the Company securities proposed to be registered for the account of the Company
or, if such registration is not for the sale of Company securities for the
account of the Company but is to comply with the demand registration rights
of
third parties, the Company securities proposed to be registered pursuant to
such
demand registration rights of third parties; and
(ii) second, all Registrable
Securities permitted to be included in such registration by Covered
Persons and all Required Third-Party Piggyback Securities (allocated
as between the Covered Persons that have elected to participate in such
Piggyback Registration in the aggregate and the holders of Required Third-Party
Piggyback Securities in the aggregate on a Pro Rata Basis, and further allocated
among the Covered Persons participating in such Piggyback Registration on a
pro
rata basis based on their respective Proposed Participation Amount, in each
case, as and if necessary to ensure that the offering does not to exceed the
Maximum Piggyback Offering Size).
(c) Notwithstanding
any provision in this Section 2.5 or elsewhere in this Agreement, no provision
relating to the registration of Registrable Securities shall be construed as
permitting any Covered Person to effect a transfer of securities that is
otherwise
prohibited by the terms of any agreement between such Covered Person and any
Och-Ziff entity.
Section
2.6 Lock-Up
Agreements. If any registration of Registrable Securities shall
be effected in connection with an Underwritten Public Offering, neither the
Company nor any Covered Person shall offer, pledge, announce the intention
to
sell, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer, dispose of or hedge, directly or indirectly, or enter
into any swap or other agreement that transfers, in whole or in part, any of
the
economic consequences of ownership of any Class A Shares or other securities
of
the Company or any securities convertible into or exercisable or exchangeable
for Class A Shares or other securities of the Company (except as part of
such Underwritten Public Offering and except as otherwise permitted by any
lock-up executed or granted in connection with such Underwritten Public
Offering) during the period beginning 14 days prior to the effective date of
the
applicable registration statement until the earlier of (i) such time as the
Company and the lead managing underwriter shall agree and (ii) 180 days
following the pricing of the Underwritten Public Offering, provided,
however, in the event the Ziffs do not elect to participate in
any such
Underwritten Public Offering, the Ziffs will not be subject to the lock-up
provisions of this Section 2.6, unless the lead managing underwriter(s)
inform(s) the Company in writing that any refusal by the Ziffs to agree to
such
lock-up may have a negative impact on the price and/or execution of the
Underwritten Public Offering, in which case, the Ziffs shall agree to the
provisions of this Section 2.6, but for a period not to exceed 90
days.
Section 2.7
Registration Procedures. In connection with
any request by the Demand Committee that Registrable Securities be registered
pursuant to Sections 2.2 or 2.5 and in connection with any Resale Shelf
Registration pursuant to Section 2.3, subject to the provisions of such Sections
and unless otherwise set forth in this Section 2.7, the paragraphs below shall
be applicable:
(a) The
Company shall as expeditiously as reasonably practicable prepare and file with
the SEC a registration statement on any form for which the Company then
qualifies or that counsel for the Company shall deem appropriate and which
form
shall be available for the registration of the Registrable Securities to be
registered thereunder in accordance with the intended method of distribution
thereof, and use its commercially reasonable efforts to cause such filed
registration statement to become and remain effective for a period
of 30 days or such earlier date as, all of the Registrable Securities
of the Covered Persons included in any such registration statement (each, a
“Registering Covered Person”) shall have actually been sold, or in the
case of a Resale Shelf Registration and a Shelf Registration, the date
on which all of the Registrable Securities of all Registering Covered Persons
shall have actually been sold.
(b) Prior
to filing a registration statement or prospectus or any amendment or supplement
thereto, the Company shall, if requested, furnish to each Registering Covered
Person and each underwriter, if any, of the Registrable Securities covered
by
such registration statement copies of such registration statement as proposed
to
be filed. Upon
and
after the filing of such registration statement, the Company shall furnish
to such Registering Covered Person and underwriter, if any, (in each case in
an
electronic format, unless otherwise required by applicable law) such number
of
copies of such registration statement, each amendment and supplement thereto
(in
each case including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 or Rule 430A under the Securities Act and such other
documents as such Registering Covered Person or underwriter may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Registering Covered Person. Each Registering Covered
Person shall have the right to request in writing that the Company modify any
information contained in such registration statement, amendment and supplement
thereto pertaining solely to such Registering Covered Person and the Company
shall use its commercially reasonable efforts to comply with such
request; provided, however, that the Company shall not
have any obligation to so modify any information if the Company reasonably
expects that so doing would cause the prospectus to contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) After
the filing of a registration statement, the Company shall (i) cause the related
prospectus to be supplemented by any required prospectus supplement, and, as
so
supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii)
comply with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such registration statement during
the
applicable period in accordance with the intended methods of disposition by
the
Registering Covered Person thereof set forth in such registration statement
or
supplement to such prospectus and (iii) promptly notify in writing each
Registering Covered Person holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC
suspending the effectiveness of such registration statement or any state
securities commission and use commercially reasonable efforts to prevent the
entry of such stop order or to obtain the withdrawal of such order if
entered.
(d) To
the extent any “free writing prospectus” (as defined in Rule 405 under the
Securities Act) is used, the Company shall file with the SEC any free writing
prospectus that is required to be filed by the Company with the SEC in
accordance with the Securities Act and retain any free writing prospectus not
required to be filed.
(e) The
Company shall use its commercially reasonable efforts to (i) register or qualify
the Registrable Securities covered by such registration statement under such
other securities or “blue sky” laws of such jurisdictions in the United States
as any Registering Covered Person holding such Registrable Securities or each
underwriter, if any, reasonably (in light of such Covered Person’s or
underwriter’s intended plan of distribution) requests and (ii) cause such
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by
virtue
of the business and operations of the Company and do any and all other acts
and
things that may be reasonably necessary or advisable to enable such Registering
Covered Person to consummate the disposition of the Registrable Securities
owned
by such person; provided, that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 2.7(e), (B) subject itself
to taxation in any such jurisdiction or (C) consent to general service of
process in any such jurisdiction.
(f) The
Company shall promptly notify in writing each Registering Covered Person holding
such Registrable Securities covered by such registration statement or each
underwriter, if any, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue statement of a material fact or
omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and promptly prepare and make available
to
each such Registering Covered Person or underwriter, if any, and file with
the
SEC any such supplement or amendment.
(g) The
Demand Committee may select an underwriter or underwriters in connection with
any Underwritten Public Offering made pursuant to a Demand Registration or
Resale Shelf Registration hereunder, and the Company shall retain such
underwriter or underwriters as soon as reasonably practicable after such
selection. In connection with any Underwritten Public Offering, the
Company shall enter into customary agreements (including an underwriting
agreement in customary form) and take all such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities in any such Underwritten Public Offering, including if necessary
the
engagement of a “qualified independent underwriter” in connection with the
qualification of the underwriting arrangements with FINRA.
(h) Subject
to the execution of confidentiality agreements reasonably satisfactory in form
and substance to the Company, upon the reasonable request of the Demand
Committee or underwriter (if any), the Company shall give to each Registering
Covered Person, each underwriter (if any) and their respective counsel and
accountants (i) reasonable and customary access to the books and records of
the
Company and (ii) such opportunities to discuss the business of the Company
with
its directors, officers, counsel and the independent public accountants who
have
certified its financial statements, as shall be appropriate, in the reasonable
judgment of counsel to such Registering Covered Person or underwriter, to enable
them to exercise their due diligence responsibility.
(i) Each
Registering Covered Person registering securities under Sections 2.2, 2.3 or
2.5
shall promptly furnish in writing to the Company the information set forth
in
Appendix B and such other information regarding itself, the distribution of
the
Registrable Securities as the Company may from time to time reasonably request
and
such
other information as may be legally required or advisable in connection with
such registration, including such information necessary to correct any
inaccuracies in information previously provided to the Company.
(j) Each
Registering Covered Person and each underwriter, if any, agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind
described in Section 2.7(f), such Registering Covered Person or underwriter
shall forthwith discontinue disposition of Registrable Securities pursuant
to
the registration statement covering such Registrable Securities until such
Registering Covered Person’s or underwriter’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.7(f), and, if
so
directed by the Company, such Registering Covered Person or underwriter shall
deliver to the Company all copies, other than any permanent file copies then
in
such Registering Covered Person’s possession, of the most recent prospectus
covering such Registrable Securities at the time of receipt of such
notice. If the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 2.7(a)) by the number
of
days during the period from and including the date of the giving of notice
pursuant to Section 2.7(f) to the date when the Company shall make available
to
such Registering Covered Person a prospectus supplemented or amended to conform
with the requirements of Section 2.7(f).
(k) The
Company shall use its commercially reasonable efforts to list all Registrable
Securities covered by such registration statement on any securities exchange
or
quotation system on which any of the Registrable Securities are then listed
or
traded.
(l) The
Company shall have appropriate officers of Och-Ziff (i) prepare and make
presentations at any “road shows” and before analysts and rating agencies, as
the case may be and (ii) otherwise use their commercially reasonable efforts
to
cooperate as reasonably requested by the underwriters in the offering, marketing
or selling of the Registrable Securities.
(m) The
Company shall cooperate with the Registering Covered Persons to facilitate
the
timely delivery of Registrable Securities to be sold, which shall not bear
any
restrictive legends, and to enable such Registrable Securities to be issued
in
such denominations and registered in such names as such Registering Covered
Persons may reasonably request at least two business days prior to the closing
of any sale of Registrable Securities.
Section
2.8 Indemnification
by the Company. In the event of any registration of
any Registrable Securities of the Company under the Securities Act pursuant
to
this Article II, the Company will, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, a Registering Covered Person, each
Affiliate of such Registering Covered Person and their respective directors
and
officers or general and limited partners or members and managing members
(including any director, officer, Affiliate, employee, agent and controlling
person of
any
of the foregoing) and each other person, if any, who controls such seller within
the meaning of the Securities Act (collectively, the “Indemnified Parties”),
from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of, or are based upon, (1)
any untrue statement or alleged untrue statement of a material fact contained
in
any registration statement or amendment or supplement thereto under which such
Registrable Securities were registered or any omission or alleged omission
to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or (2) any untrue statement
or alleged untrue statement of a material fact contained in any prospectus,
any
free writing prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Securities Act in respect of the
Registrable Securities, or amendment or supplement thereto, or any omission
or
alleged omission to state therein a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, that the Company shall not be liable to
any Indemnified Party in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, prospectus,
any free writing prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the Securities Act in respect of the
Registrable Securities, or amendment or supplement thereto, in reliance upon
and
in conformity with written information furnished to the Company with respect
to
such seller specifically for use in the preparation thereof.
Section
2.9 Indemnification
by Registering Covered Persons. Each Registering Covered Person
hereby indemnifies and holds harmless, and the Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with this Article II, that the Company shall have received
an undertaking reasonably satisfactory to it from any underwriter to indemnify
and hold harmless, the Company and all other prospective sellers of Registrable
Securities, the Board, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company and
all
prospective sellers of Registrable Securities within the meaning of Section
15
of the Securities Act or Section 20 of the Exchange Act to the same extent
as
the indemnity set forth in Section 2.8 above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon,
any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company with respect to such seller or any underwriter, as applicable,
specifically for use in the preparation of such registration statement,
prospectus, any free writing prospectus or any “issuer information” filed or
required to be filed pursuant to Rule 433(d) under the Securities Act in respect
of the Registrable Securities, or amendment or supplement
thereto. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company, any of
the
Registering Covered Persons or any underwriter, or any of their respective
Affiliates, directors, officers or controlling persons and shall survive the
transfer of such securities by such person. In no event shall any
such indemnification liability of any Registering Covered Person be greater
in
amount than the dollar amount of the proceeds received by such Registering
Covered Person upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
Section
2.10 Conduct of
Indemnification Proceedings. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to Section 2.8 or Section 2.9 above, such Indemnified Party shall,
if a
claim of indemnification in respect thereof is to be made pursuant to this
Article II, give written notice of the commencement of such action to the person
against whom indemnification is sought (the “Indemnifying Party”);
provided, that the failure of the Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its obligations
under this Article II, except to the extent that the Indemnifying Party is
materially prejudiced by such failure to give notice.
In
case any such action is brought against an Indemnified Party, unless in such
Indemnified Party’s reasonable judgment a conflict of interest between such
Indemnified Party and indemnifying parties may exist in respect of such claim,
the Indemnifying Party shall be entitled to participate in and to assume the
defense thereof, jointly with any other Indemnifying Party similarly notified
to
the extent that it may wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying Party to such
Indemnified Party of its election to assume the defense thereof, the
Indemnifying Party will not be liable to such Indemnified Party for any legal
or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. It is
understood and agreed that the Indemnifying Party shall not, in connection
with
any proceeding, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Parties, and that
all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm (x) for any Covered Person, its Affiliates, directors and officers
and any control persons of such Indemnified Party, shall be designated in
writing by the Demand Committee, and (y) in all other cases shall be designated
in writing by the Company. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its prior written consent,
but if settled with such consent or if there shall be a final judgment for
the
plaintiff, the Indemnifying Party agrees to indemnify each Indemnified Party
from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Party is or could
have
been a party and indemnification could have been sought hereunder by such
Indemnified Party, unless such settlement (A) includes an unconditional release
of such Indemnified Party, in form and substance reasonably satisfactory to
such
Indemnified Party, from all liability on claims that are the subject matter
of
such proceeding and (B) does not include any statement as to or any admission
of
fault, culpability or a failure to act by or on behalf of any Indemnified
Party.
Section
2.11 Contribution. If
the indemnification provided for in this Article II from the Indemnifying Party
is unavailable to an Indemnified Party hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities or expenses in such proportion
as
is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Parties in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such Indemnifying
Party and Indemnified Parties shall be determined by
reference
to, among other things, whether any action in question, including any untrue
or
alleged untrue statement of a material fact or omission or alleged omission
to
state a material fact, has been made by, or relates to information supplied
by,
such Indemnifying Party or Indemnified Parties, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party under this Section
2.11 as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 2.11 were determined by pro rata allocation or by
any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
Section
2.12 Participation in
Underwritten Public Offering. No Covered Person may
participate in any Underwritten Public Offering hereunder unless such Covered
Person (a) agrees to sell such Covered Person’s securities on the basis provided
in any underwriting arrangements approved by the Demand Committee and the
Company and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and the provisions of this
Agreement.
Section
2.13 Other
Indemnification. Indemnification similar to that specified herein
(with appropriate modifications) shall be given by the Company and the
Registering Covered Person participating therein with respect to any required
registration or other qualification of securities under any federal or state
law
or regulation or Governmental Authority other than the Securities
Act.
Section
2.14 Cooperation by
the Company. If a Covered Person shall transfer any
Registrable Securities pursuant to Rule 144, the Company shall use its
commercially reasonable efforts to cooperate with such Covered Person and shall
use commercially reasonable efforts to provide to such Covered Person such
information and legal opinions as may be required to be provided to effect
a
transfer of such Registrable Securities under Rule 144.
Section
2.15 Parties in
Interest. Each Covered Person shall be entitled to receive the
benefits of this Agreement and shall be bound by the terms and provisions of
this Agreement by reason of such Covered Person’s election to participate in a
registration under this Article II. To the extent the Och-Ziff
Operating Group A Units held by Covered Persons are effectively transferred
to a
Permitted Transferee, the Permitted Transferee shall be entitled to receive
the
benefits of this Agreement and shall be bound by the terms and provisions of
this Agreement upon becoming bound hereby pursuant to Section
3.1(c).
Section
2.16 Acknowledgement
Regarding the Company. Other than those
determinations reserved expressly to the Demand Committee, all determinations
necessary or advisable under this Article II shall be made by the Board, the
determinations of which shall be final and binding.
Section
2.17 Mergers,
Recapitalizations, Exchanges or Other Transactions Affecting Registrable
Securities. The provisions of this Agreement shall apply to the
full extent set forth herein with respect to the Registrable Securities, to
any
and all securities or units of the Och-Ziff Operating Group or the Company
or
any successor or assign of any such person (whether by merger, amalgamation,
consolidation, sale of assets or otherwise) that may be issued in respect of,
in
exchange for, or in substitution of such Registrable Securities, by reason
of
any dividend, split, issuance, reverse split, combination, recapitalization,
reclassification, merger, amalgamation, consolidation or otherwise.
ARTICLE
III
MISCELLANEOUS
Section
3.1 Term of
the Agreement; Termination of Certain Provisions.
(a) The
term of this Agreement shall continue until such time as no Covered Person
holds
any Covered Och-Ziff Operating Group A Units or Registrable
Securities.
(b) Unless
this Agreement is terminated pursuant to Section 3.1(a) hereof, a Covered Person
shall be bound by the provisions of this Agreement with respect to any Covered
Och-Ziff Operating Group A Units or Registrable Securities until such time
as
such Covered Person ceases to hold any Covered Och-Ziff Operating Group A Units
or Registrable Securities. Thereafter, such Covered Person shall no
longer be bound by the provisions of this Agreement other than Sections 2.9,
2.10, 2.11 and 2.13 and this Article III, and such Covered Person’s name
shall be removed from Appendix A to this Agreement. Any person that has ceased
to be a Covered Person and that reacquires Covered Och-Ziff Operating Group
A
Units or Registrable Securities shall be added to Appendix A as a Covered
Person; provided, that such person shall first sign an agreement in the
form approved by the Company acknowledging that such person is bound by the
terms and provisions of this Agreement.
(c) Any
Permitted Transferee shall be added to Appendix A as a Covered Person;
provided, that such Permitted Transferee shall first sign an agreement
in the form approved by the Company acknowledging that such Permitted Transferee
is bound by the terms and provisions of this Agreement.
Section
3.2 Amendments;
Waiver.
(a) Subject
to Section 3.2(c), no provision of this Agreement may be amended unless such
amendment is approved in writing by the Company and the Covered Persons who,
together with their Permitted Transferees, collectively hold at least two-thirds
of the
Registrable
Securities; provided, that no such amendment shall be effective if such
amendment will have a disproportionate effect on certain Covered Persons unless
all such Covered Persons disproportionately affected consent in writing to
such
amendment and provided, further, no such amendment shall impair or
diminish the rights of the Demand Committee, unless approved in writing by
the
Demand Committee. No provision of this Agreement may be waived unless
such waiver is in writing and signed by the party against whom the waiver is
to
be effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a 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.
(c) The
Company may amend this Agreement in writing without the approval or consent
of
any Covered Person or Permitted Transferee if such amendment does not materially
and adversely affect any Covered Person’s or Permitted Transferee’s rights under
this Agreement. Each Covered Person understands that from time to
time certain other persons may become Covered Persons and certain Covered
Persons will cease to be bound by the provisions of this Agreement pursuant
to
the terms hereof. This Agreement may be amended from time to time by
the Company (without the approval of any other person) for the purposes of
(i)
adding to Appendix A Permitted Transferees of the Covered Och-Ziff Operating
Group A Units as provided in Section 3.1(c) who agree to be bound by this
Agreement and (ii) removing from Appendix A such persons as shall cease to
be
bound by the provisions of this Agreement pursuant to Sections 3.1(b) hereof,
which additions and removals shall be given effect from time to time by
appropriate changes to Appendix A.
Section
3.3 Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS
OF LAW PROVISIONS THEREOF.
Section
3.4 Submission
to Jurisdiction; Waiver of Jury Trial. Each party to this
Agreement hereby irrevocably and unconditionally, with respect to any matter
or
dispute arising under, or in connection with, this Agreement and the
transactions contemplated hereby (i) submits for itself and its property in
any
legal action or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive general
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and any appellate
courts thereof (the “New York Courts”) (and covenants not to commence any
legal action or proceeding in any other venue or jurisdiction); (ii) consents
that any such action or proceeding may be brought in the New York Courts and
waives any objection that it may now or hereafter have to the venue of any
such
action or proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action will be in accordance
with the laws of the State of New York but that nothing
herein
shall affect the right to effect service of process in any other manner
permitted by law; (iv) waives any and all immunity from suit, execution,
attachment or other legal process; and (v) waives in connection with any such
action any and all rights to a jury trial. The parties agree that any
judgment of any New York Court may be enforced in any court having jurisdiction
over any party of any of their assets.
Section
3.5 Notices.
(a) All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly given
upon
receipt) by delivery in person, by courier service, by fax, by electronic mail
(delivery receipt requested) or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 3.5):
If
to a Covered Person, initially to the address indicated in such Covered Person’s
questionnaire (a form of which is attached hereto as Appendix B) or to the
address then in the records of the Och-Ziff Operating Group or the Company,
as
applicable, with a copy to the Chief Legal Officer of the Company, as set forth
below, or if no such questionnaire has been delivered or if no address is then
in the records of the Och-Ziff Operating Group or the Company,
|
c/o
Och-Ziff Capital Management Group LLC
0
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Chief Legal Officer
Fax:
(000) 000-0000
Electronic
Mail: Xxxxxxx.Xxxxxxxxxx@xxxxx.xxx
|
If
to the Company,
|
c/o
Och-Ziff Capital Management Group LLC
0
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Chief Legal Officer
Fax:
(000) 000-0000
Electronic
Mail: Xxxxxxx.Xxxxxxxxxx@xxxxx.xxx
|
The
Company shall be responsible for notifying each Covered Person of the receipt
of
a notice, request, claim, demand or other communication under this Agreement
relevant to such Covered Person as set forth above (and each Covered Person
shall notify the Company of any change in address for notices, requests, claims,
demands or other communications).
Section
3.6 Severability. If
any provision of this Agreement is finally held to be invalid, illegal or
unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired
and (b) the invalid or unenforceable term or provision shall be deemed replaced
by a term or provision that is valid and enforceable and that comes closest
to
expressing the intention of the invalid or unenforceable term or
provision.
Section
3.7 Specific
Performance. Each party hereto acknowledges that the remedies at
law of the other parties for a breach or threatened breach of this Agreement
would be inadequate and, in recognition of this fact, any party to this
Agreement, without posting any bond, and in addition to all other remedies
that
may be available, shall be entitled to obtain equitable relief in the form
of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy that may be then
available.
Section
3.8 Assignment;
Successors. This Agreement shall be binding upon and inure to the
benefit of the respective legatees, legal representatives, successors and
assigns of the Covered Persons; provided, however, that a
Covered Person may not assign this Agreement or any of his rights or obligations
hereunder, and any purported assignment in breach hereof by a Covered Person
shall be void; and provided further, that no
assignment of this Agreement by the Company or to a successor of the Company
(by
operation of law or otherwise) shall be valid unless such assignment is made
to
a person which succeeds to the business of such person substantially as an
entirety.
Section
3.9 No
Third-Party Rights. Other than as expressly provided herein,
nothing in this Agreement shall 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. This Agreement and all of its provisions and conditions
are for the sole and exclusive benefit of the parties to this Agreement and
their successors and assigns.
Section
3.10 Section
Headings. The headings of sections in this Agreement are provided
for convenience only and will not affect its construction or
interpretation.
Section
3.11 Execution in
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute but one and the same
instrument.
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 | ||
|
|
|||
|
/s/
Xxxxxx X. Och
|
|||
|
Xxxxxx
X. Och
|
|||
|
THE
OCH FAMILY 2007 GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
| Name: |
Xxxxxx
X. Och, as attorney-in-fact
for
The Och Family 2007 GRAT
|
||
|
|
|||
|
THE
XXXXXXXX OCH GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
| Name: |
Xxxxxx
X. Och, as attorney-in-fact
for
The Xxxxxxxx Och GRAT
|
||
|
|
|||
|
THE
XXXXX X. XXXXXXXXX GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
| Name: |
Xxxxxx
X. Och, as attorney-in-fact
for
The Xxxxx X. Xxxxxxxxx GRAT
|
||
|
|
|||
|
THE
XXXXX OCH KALVER GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
| Name: |
Xxxxxx
X. Och, as attorney-in-fact
for
The Xxxxx Och Kalver GRAT
|
||
|
|
|||
|
XXXXXX
X. OCH DESCENDANTS’
TRUST
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
| Name: |
Xxxxxx
X. Och, as attorney-in-fact
for
the Xxxxxx X. Och Descendants’ Trust
|
||
|
|
|||
|
XXXX
X. OCH 1999 GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
| Name: |
Xxxxxx
X. Och, as attorney-in-fact
for
the Xxxx X. Och 1999 GRAT
|
||
|
|
|||
|
/s/
Xxxxx Xxxxxxxxx
|
|||
|
Xxxxx
Xxxxxxxxx
|
|||
|
THE
XXXXX XXXXXXXXX GRAT I
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
| Name: |
Xxxxx
Xxxxxxxxx, as attorney-in-fact
for
The Xxxxx Xxxxxxxxx GRAT I
|
||
|
|
|||
|
THE
XXXXX XXXXXXXXX GRAT II
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
| Name: |
Xxxxx
Xxxxxxxxx, as attorney-in-fact
for
The Xxxxx Xxxxxxxxx XXXX XX
|
||
|
|
|||
|
/s/
Xxxx Xxxxx
|
|||
|
Xxxx
Xxxxx
|
|||
|
THE
XXXX X. XXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
| Name: | Xxxx X. Xxxxx, as Trustee | ||
|
|
|||
|
/s/
Arnaud Achache
|
|||
|
Arnaud
Achache
|
|||
|
XXXXXX
X. XXXXXXX FAMILY TRUST
|
|||
|
By:
|
/s/
Arnaud Achache
|
||
| Name: |
Arnaud
Achache as attorney in fact
for the Xxxxxx X. Xxxxxxx Family Trust
|
||
|
|
|||
|
/s/
Xxxxxxx Xxxxxxx
|
|||
|
Xxxxxxx
Xxxxxxx
|
|||
|
/s/
Xxxxx-Xxxxx Xxxxx
|
|||
|
Xxxxx-Xxxxx
(JK) Xxxxx
|
|||
|
THE
XXXXX-XXXXX XXXXX 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx-Xxxxx Xxxxx
|
||
| Name: | Xxxxx-Xxxxx Xxxxx, as Trustee | ||
|
|
|||
|
/s/
Xxxxxxx Xxxxx
|
|||
|
Xxxxxxx
Xxxxx
|
|||
|
THE
XXXXXXX XXXXX GRAT I
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
| Name: |
Xxxx
Xxxxx, as attorney-in-fact for
The
Xxxxxxx Xxxxx GRAT I
|
||
|
|
|||
|
THE
XXXXXXX XXXXX XXXX XX
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
| Name: |
Xxxx
Xxxxx, as attorney-in-fact for
The
Xxxxxxx Xxxxx GRAT II
|
||
|
|
|||
|
/s/
Xxxxxxx Xxxxx
|
|||
|
Xxxxxxx
Xxxxx
|
|||
|
/s/
Xxxxxxx Xxxxx
|
|||
|
Xxxxxxx
Xxxxx
|
|||
|
THE
XXXXXXX XXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
| Name: | Xxxxxxx Xxxxx, as Trustee | ||
|
|
|||
|
/s/
Xxxxxx X. Xxxxx
|
|||
|
Xxxxxx
Xxxxx
|
|||
|
THE
XXXXXX X. XXXXX, XX. 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
| Name: | Xxxxxx X. Xxxxx, Xx., as Trustee | ||
|
|
|||
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
|||
|
THE
XXXXXXX X. XXXX, III 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
| Name: | Xxxxxxx X. Xxxx, III, as Trustee | ||
|
|
|||
|
/s/
Xxx Xxxxx
|
|||
|
Xxx
Xxxxx
|
|||
|
/s/
Xxxxx X’Xxxxxx
|
|||
|
Xxxxx
X’Xxxxxx
|
|||
|
THE
XXXXX X’XXXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx X’Xxxxxx
|
||
| Name: | Xxxxx X’Xxxxxx, as Trustee | ||
|
|
|||
|
/s/
Xxxxxx Xxxx
|
|||
|
Xxxxxx
Xxxx
|
|||
|
THE
XXXXXX XXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxx Xxxx
|
||
| Name: | Xxxxxx Xxxx, as Trustee | ||
|
|
|||
|
/s/
Xxxx Xxxx
|
|||
|
Xxxx
Xxxx
|
|||
|
THE
XXXX XXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxx Xxxx
|
||
| Name: | Xxxx Xxxx, as Trustee | ||
|
|
|||
|
/s/
Xxxx Xxxxxxxx
|
|||
|
Xxxx
Xxxxxxxx
|
|||
|
THE
XXXX XXXXXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxx Xxxxxxxx
|
||
| Name: | Xxxx Xxxxxxxx, as Trustee | ||
|
|
|||
|
/s/
Xxxxx Xxxxxxxxx
|
|||
|
Xxxxx
Xxxxxxxxx
|
|||
|
THE
XXXXX XXXXXXXXX 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
| Name: | Xxxxx Xxxxxxxxx, as Trustee | ||
|
|
|||
|
THE
XXXXXX XXXXXXXXXX 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
| Name: | Xxxxx Xxxxxxxxx, as Trustee | ||
|
|
|||
|
THE
XXXXX XXXXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
| Name: | Xxxxx Xxxxxxxxx, as Trustee | ||
|
|
|||
|
/s/
Xxxxxx Xxxxx
|
|||
|
Xxxxxx
Xxxxx
|
|||
|
ZIFF
INVESTORS PARTNERSHIP, X.X. XX
By:
Ziff Investment Management, L.L.C., its
general
partner
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
||
|
Name: Xxxxxx
X. Xxxx
Title:
Co-President
|
|||
|
ZIFF
INVESTORS PARTNERSHIP, L.P. IIA
By:
Ziff Investment Management, L.L.C., its
general
partner
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
||
|
Name: Xxxxxx
X. Xxxx
Title:
Co-President
|
|||
