1
EXHIBIT 10.2
PUT RIGHT
This Put Right is granted by PIMCO Advisors L.P., a Delaware limited
partnership ("PIMCO Advisors"), on November 4, 1997 (the "Grant Date"), to the
registered holders from time to time (the "Holders") of Class A units of limited
partner interest in PIMCO Advisors ("Class A LP Units") (i) issued pursuant to
that certain Agreement and Plan of Merger, dated November 4, 1997 (the "Merger
Agreement"), to which PIMCO Advisors is a party ("Merger Units"), (ii) issued in
exchange for the 6% Senior Notes due December 1, 2037 ("Notes") of Xxxxxxxxxxx
Group, Inc., a Delaware corporation ("Opgroup"), issued in the Redemption
contemplated by the Merger Agreement ("Note Units"), or (iii) issued in exchange
for the Notes ("Certificate Notes") issued upon reduction or cancellation of the
Certificate of Long-Term Indemnity Indebtedness (the "Certificate") issued
pursuant to the Merger Agreement ("Certificate Units").
Section 1. Definitions.
The terms defined in this Section 1 shall, for the purposes of this
Put Right, have the meanings set forth herein. Capitalized terms not defined
herein are defined in the Amended and Restated Partnership Agreement of PIMCO
Advisors or the Merger Agreement.
Certificate is defined in the preamble to this Put Right.
Certificate Units are defined in the preamble to this Put Right.
Class A LP Units are defined in the preamble to this Put Right.
Covered Unit means a Merger Unit, a Note Unit or a Certificate Unit
which is a "restricted security" within the meaning of Rule 144 under the
Securities Act.
Current Market Price of a Class A Unit for any Trading Day means the
last reported sale price regular way on such day, or if no sale takes place on
such day, the average of the reported closing bid and asked prices regular way
on such day, in either case as reported on the principal National Securities
Exchange on which the Class A LP Units are listed or admitted for trading.
Grant Date is defined in the preamble to this Put Right.
Holders are defined in the preamble to this Put Right.
Independent Investment Banker means an independent nationally
recognized investment banking firm retained by PIMCO Advisors and reasonably
acceptable to the Indemnity Trustees.
2
Issue Date, with respect to a particular Certificate Unit, means the
date on which the Certificate Note exchanged for such Certificate Unit was first
issued.
Liquidity Event with respect to a day means that for each of the
thirty consecutive Trading Days immediately preceding such day, (i) the Class A
LP Units shall have been listed or admitted for trading on a National Securities
Exchange, (ii) a Registration Statement shall have been continuously in effect
covering the Covered Units, or PIMCO Advisors shall have provided to the
Holders, at or before the beginning of such period, an opinion of counsel to the
effect that the Holders may sell the Covered Units without registration under
the Securities Act or qualification under any state securities laws not already
obtained, and (iii) the Current Market Price shall have been not less than the
Put Price.
Merger Agreement is defined in the preamble to this Put Right.
Merger Units are defined in the preamble to this Put Right.
Note Units are defined in the preamble to this Put Right.
Notes are defined in the preamble to this Put Right.
Opgroup is defined in the preamble to this Put Right.
PIMCO Advisors is defined in the preamble to this Put Right.
Put Date, with respect to a particular Certificate Unit, means the
later of (i) December 31, 2004, or (ii) the sixtieth day after the Issue Date
with respect to such Certificate Unit.
Put Price means the price at which PIMCO Advisors shall purchase one
Covered Unit from a Holder upon exercise of this Put Right, as adjusted pursuant
to Section 4 or 6. The Put Price as of the Grant Date is $25.50 per Covered Unit
Registration Statement means a registration statement filed under
the Securities Act.
Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
Trading Day means a day on which the principal National Securities
Exchange on which the Class A LP Units are listed or admitted for trading is
open for trading.
Transaction is defined in Section 5.
2
3
Section 2. Put Right for Covered Units Which Are Not Certificate
Units.
(a) Unless sooner terminated pursuant to Section 2(d), the
Holder of a Covered Unit which is not a Certificate Unit shall have the right,
exercisable on December 31, 2004, to require PIMCO Advisors to purchase such
Covered Unit for cash in the amount of the Put Price.
(b) In order to exercise the right described in Section
2(a), the Holder shall, no later than the close of business on December 31,
2004, surrender the certificate evidencing such Covered Unit, duly endorsed or
assigned to PIMCO Advisors, at the principal office of PIMCO Advisors,
accompanied by written notice in the form of the Notice of Exercise attached
hereto as Exhibit A.
(c) Not later than January 5, 2005, PIMCO Advisors shall
transfer funds in the amount of the Put Price for such Covered Unit by wire
transfer to the account specified by the Holder in the Notice of Exercise, or if
no such account is specified, shall mail a check payable to the Holder in such
amount to the address specified in the Notice of Exercise.
(d) The right described in Section 2(a) shall terminate
upon the occurrence of a Liquidity Event on any day during the period beginning
January 1, 1998 and ending December 31, 2004, and the obligations of PIMCO
Advisors under such right shall thereupon be extinguished.
Section 3. Put Rights for Covered Units Which Are Certificate Units.
(a) Unless sooner terminated pursuant to Section 3(d), the
Holder of a Covered Unit which is a Certificate Unit shall have the right,
exercisable on the Put Date with respect to such Certificate Unit, to require
PIMCO Advisors to purchase such Covered Unit for cash in the amount of the Put
Price.
(b) In order to exercise the right described in Section
3(a), the Holder shall, no later than the close of business on such Put Date,
surrender the certificate evidencing such Covered Unit, duly endorsed or
assigned to PIMCO Advisors, at the principal office of PIMCO Advisors,
accompanied by written notice in the form of the Notice of Exercise attached
hereto as Exhibit A.
(c) Not later than three business days after such Put
Date, PIMCO Advisors shall transfer funds in the amount of the Put Price for
such Covered Unit by wire transfer to the account specified by the Holder in the
Notice of Exercise, or if no such account is specified, shall mail a check
payable to the Holder in such amount to the address specified in the Notice of
Exercise.
3
4
(d) The right described in Section 3(a) shall terminate
upon the occurrence of a Liquidity Event on any day during the period beginning
on the Issue Date with respect to such Certificate Unit, and ending on the Put
Date for such Certificate Unit, and the obligations of PIMCO Advisors under such
right shall thereupon be extinguished.
Section 4. Adjustments for Recapitalizations.
If, at any time after the Grant Date, PIMCO Advisors shall effect a
Recapitalization affecting Class A LP Units, the Put Price in effect at the
opening of business on the day following the effective date for the
Recapitalization shall be adjusted so that Holders shall be entitled thereafter
to receive upon surrender of their Covered Units the amount of cash that such
Holders would have received had they exercised this Put Right for their Covered
Units immediately prior to the effective date for the Recapitalization.
Section 5. Adjustments for Transactions.
If, at any time after the Grant Date, PIMCO Advisors shall be a
party to a transaction, including without limitation a Restructuring, a merger
or consolidation, a sale of all or substantially all of the Partnership Assets,
or an exchange of all or substantially all of the Partnership Interests, but
excluding a transaction to which Section 4 applies, in each case as a result of
which Class A LP Units held by Public Unitholders are exchanged for or converted
into cash, securities or other property (each, a "Transaction"), Holders shall
be entitled thereafter to receive, upon surrender of the cash, securities and
other property received for or in place of each Covered Unit, the Put Price then
in effect.
Section 6. Other Adjustments.
If, at any time after the Grant Date, PIMCO Advisors shall take any
action affecting the Class A LP Units other than an action described in Section
4 or 5, that would adversely affect this Put Right, this Put Right and the Put
Price may be adjusted in such manner, if any, and at such time as the General
Partners may determine to be equitable under the circumstances; provided, that
if the Indemnity Trustees object to such determination by notice mailed to PIMCO
Advisors at its principal office within thirty days after notice of such action
is mailed to the Indemnity Trust pursuant to Section 8(a), the Independent
Investment Banker shall determine an equitable adjustment to this Put Right and
the Put Price, and such determination shall be conclusive and binding on PIMCO
Advisors and the Holders.
Section 7. Successive Adjustments.
The provisions of Sections 4, 5 and 6 shall apply similarly to
successive Recapitalizations, Transactions and actions described in Section 6.
4
5
Section 8. Notices to Holder.
(a) If any Recapitalization or Transaction or action
described in Section 6 is proposed to occur, PIMCO Advisors shall cause to be
mailed to the Indemnity Trust at the address specified pursuant to the Merger
Agreement, to each Holder at his address as shown on the records of PIMCO
Advisors, and to each holder of a Note at his address as shown on the records of
Opgroup, as promptly as practicable, a notice stating the effective date for the
proposed Recapitalization or Transaction or action, and describing in general
terms the proposed Recapitalization or Transaction or action.
(b) If the Put Price is adjusted, or there is a change in
the cash, securities or other property to be surrendered upon exercise of the
Put Right, PIMCO Advisors shall cause to be mailed to the Indemnity Trust at the
address specified pursuant to the Merger Agreement, to each Holder at his
address as shown on the records of PIMCO Advisors, and to each holder of a Note
at his address as shown on the records of Opgroup, as promptly as practicable, a
notice stating the effective date for such adjustment or change, and stating the
adjusted Put Price or describing the change, as the case may be.
(c) Failure to give or receive a notice described in
Section 8(a) or (b) or any defect in such notice shall not affect the validity
of the Recapitalization or Transaction or action which gives rise to such
notice.
Section 9. General.
(a) This Put Right is granted for the express benefit of
the Holders, and may be altered or amended only with the prior written consent
of PIMCO Advisors and the Indemnity Trust.
(b) PIMCO Advisors may cause a legend to be imprinted on
each certificate evidencing Covered Units, stating "The Units evidenced by this
Certificate are [Merger Units] [Note Units] [Certificate Units] within the
meaning of that certain Put Right granted by PIMCO Advisors L.P. on November 4,
1997, and are entitled to the benefits accorded Covered Units by the Put Right."
Any such legend shall be removed upon registration of a transfer which results
in such Class A LP Units losing their status as Covered Units.
(c) This Put Right shall be deemed to be a contract made
under the laws of the State of Delaware, and shall be construed in accordance
with the internal laws of the State of Delaware, without regard to the
principles of conflict of laws.
5
6
IN WITNESS WHEREOF, PIMCO Advisors has executed this Put Right in
New York, New York on the Grant Date.
PIMCO Advisors L.P.
By /s/ XXXXXXX X. XXXXXX
---------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
6
7
EXHIBIT A
NOTICE OF EXERCISE
To: PIMCO Advisors L.P.
This Notice of Exercise is given pursuant to that certain Put Right
granted by PIMCO Advisors L.P. ("PIMCO Advisors") on November 4, 1997.
Capitalized terms not defined herein are defined in the Put Right or the Amended
and Restated Agreement of Limited Partnership of PIMCO Advisors.
Pursuant to the terms of the Put Right, the undersigned (the
"Holder") hereby irrevocably elects to require PIMCO Advisors to purchase
_____________________
Class A LP Units held of record by the Holder and covered by the Put Right (the
"Tendered Units"). Accompanying this Notice of Exercise are certificates
evidencing the Tendered Units, duly endorsed or assigned to PIMCO Advisors.
The purchase price for the Tendered Units should be :
[ ] Wired to the following account:
_____________________________________________
_____________________________________________
_____________________________________________
[ ] Paid by check mailed to the following address:
_____________________________________________
_____________________________________________
_____________________________________________
8
The Holder represents and warrants to PIMCO Advisors that the
Tendered Units are Covered Units, and that he is transferring good and
marketable title to the Tendered Units to PIMCO Advisors, free and clear of any
liens, encumbrances or adverse claims.
Executed in _____________________________ on______________________.
(City and State) (Date)
_________________________________
(Signature)
_________________________________
(Printed Name)
_________________________________
Signature Guarantee:(1)
_____________________
1 All signatures shall be guaranteed by a bank or trust company
having an office or correspondent in the United States or a broker or dealer
which is a member of a registered securities exchange or the National
Association of Securities Dealers, Inc.
2
