FORM OF CONTRIBUTION AGREEMENT
Exhibit 10.2
FORM OF CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this “Agreement”) is made as of , 2008, by and between
Xxxxxx Investment Management LLC, a Maryland limited liability company (“XXX”) and Xxxxxx
Investment Partners, LLC, a Pennsylvania limited liability company (“LLC”).
WITNESSETH:
WHEREAS, XXX owns 1,000 membership units in LLC;
WHEREAS, XXX desires to contribute to LLC, and LLC desires to receive from XXX, all of the
assets, properties, rights and interests of XXX, upon the terms and subject to the conditions set
forth herein; and
WHEREAS, LLC desires to assume from XXX, and XXX desires to transfer to LLC, all of the
obligations and liabilities of XXX upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, LLC and XXX hereby agree as follows:
1. Contribution of Assets. On the terms and subject to the conditions of this
Agreement, XXX shall contribute to LLC, and LLC shall receive from XXX, all of the right, title and
interest of XXX in and to all of the assets, properties, rights and interests of every kind and
description and wherever located, whether real, personal or mixed, tangible or intangible, that are
owned, contracted, leased or licensed by XXX, except for the Excluded Assets (as defined on
Schedule 1 hereto) (the “Contributed Assets”). Notwithstanding anything to the contrary, to the
extent that the contribution of any Contributed Asset to LLC is not permitted as a matter of law or
without the consent of a third party, and the requisite governmental authorization or third party
consent has not been obtained prior to the effectiveness of this Agreement, such Contributed Asset
shall be contributed to LLC only if and when the requisite authorization or consent is received.
XXX and LLC shall use their commercially reasonable efforts to obtain any such authorization or
consent and, they shall cooperate in any lawful arrangement designed to provide LLC the practicable
benefits and burdens under such Contributed Asset as if it had been contributed.
2. Assumption of Liabilities. On the terms and subject to the conditions of this
Agreement, and concurrent with the transactions described in Section 1, LLC shall assume all of the
obligations and liabilities of XXX, except for obligations and liabilities of XXX exclusively
arising out of or relating to the Excluded Assets (the “Assumed Liabilities”).
3. Employee Matters. LLC covenants and agrees to meet the requirements of the
Alternate Procedure set forth in Section 5 of IRS Rev. Proc. 2004-53 and XXX covenants
and agrees to timely provide LLC sufficient information to meet such requirements including,
but not limited to, enabling LLC to issue Forms W-2, for each applicable employee, in a timely
manner.
4. Membership Interests. The aggregate consideration to be received by XXX in exchange
for the transfer of the Contributed Assets and the Assumed Liabilities shall be 3,933,897
membership units in LLC with an agreed value of
$ , having the rights and preferences set forth
in the Amended and Restated Operating Agreement of LLC, dated as of
, 2008.
5. Further Assurances. Each party hereto covenants and agrees to take any and all such
further action and to execute, acknowledge and deliver such further instruments, documents and
agreements as the other party hereto may reasonably request to effectuate, consummate or confirm
the transactions contemplated hereby.
6. Successors and Assigns. Except as expressly provided herein, this Agreement shall
bind and inure to the benefit of the respective successors and assigns of LLC and XXX.
7. Severability. If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any law or public policy, all other terms and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner in order that the transactions contemplated by this Agreement are
consummated as originally contemplated to the greatest extent possible.
8. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Pennsylvania, without regard to conflicts of law principles
thereof.
9. Counterparts. This Agreement may be executed and delivered (including by facsimile
transmission or as a “pdf” or similar attachment to an electronic transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original, but all of which taken together shall constitute one
and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date
first written above.
| Xxxxxx Investment Management LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Xxxxxx Investment Partners, LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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Schedule 1
“Excluded Assets” means the following:
| 1. | 1,000 membership units in LLC held by XXX; | ||
| 2. | Amended and Restated Operating Agreement of XXX, dated June 30, 2002, among Xxxxxx Investment Partners, Inc., Xxxxxx XxXxxxx and Xxxxxxx Xxxxxx; and | ||
| 3. | This Contribution Agreement. |
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