Contract
Exhibit
4.12
PUT/CALL
OPTION AGREEMENT (this
“Agreement”) dated as of June 15, 2007, among van der Moolen Specialists USA,
LLC, a New York limited liability company (the “Company”), Mill Bridge IV, LLC,
a New York limited liability company (the “Buyer”), and the individuals listed
on Schedule A hereto (each a “Seller” and collectively, the
“Sellers”).
WHEREAS,
the Sellers collectively own
15.5875% of the limited liability company membership interests of the Company
(the “Membership Interests”), with each Seller owning the percentage of
outstanding Membership Interests shown opposite his name on Schedule A;
and
WHEREAS,
the Sellers desire to give the
Buyer the option to purchase (the “Call Option”), and the Buyer desires to give
Sellers the option to require the Buyer to purchase (the “Put Option”) some or
all of their respective Membership Interests, upon the terms and subject to
the
conditions set forth herein.
NOW,
THEREFORE, in consideration of the
premises and the mutual covenants and agreements contained herein, the parties
hereby agree as follows:
ARTICLE
I
Definitions
Section
1.1 Definitions. When
used in this
Agreement, the following terms shall have the meanings set forth in this Section
1.1.
“Affiliate”
means,
with respect to any specified
Person, a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with,
such
specified Person.
“Bonus
Pool” shall have the meaning
set forth in
Section 7.2.
“Business
Day” shall mean any day
other than a
Saturday, Sunday or a day on which banks in New York, New York are authorized
or
obligated by Law to close.
“Buyer”
shall
have the meaning set forth in
the preamble.
“Call
Exercise Notice” shall have the meaning
set forth in
Section 3.2.
“Call
Option” shall have the meaning
set forth in
the recitals hereto.
“Capital
Balance” means with respect
to a Seller, the
Capital Account of such Seller set forth on Schedule
4.2. For purposes
of
determining the Capital Balance, (i) no losses
1
previously
or subsequently incurred by VDM Trading, LLC will be deducted from the Capital
Balances of the Sellers, and the Sellers will have no responsibility for such
losses, and (ii) no losses incurred by the Company subsequent to March 31,
2007
will be deducted from the Capital Balances of the Sellers.
“Cash
Flow” means Net Profit
plus amounts deducted
therefrom for depreciation,
of personal property.
“Cause”
shall
mean (a) in the good faith
determination of the Company, the willful failure or refusal of an employee
of
the Company to substantially perform employee’s duties as of the date hereof
(other than as a result of employee’s being totally disabled), and employee’s
failure to cure within 10 days of his being given written notice of the
Company’s intention to terminate due to that failure or refusal; (b) employee’s
conviction (including conviction on a nolo contendere
plea) of a felony or any crime
involving, in the good faith determination of the Company, fraud, dishonesty
or
moral turpitude; or (c) suspension or other disciplinary action taken against
an
employee, related to violation of applicable SEC or SRO rules or
regulations.
“CEO”
shall
mean the chief executive officer
of the Company.
“Chicago
Holdings
Obligation” shall mean
the obligation of VDM Chicago Holdings, LLC to Buyer with respect to
$10,000,000 advanced by Buyer to VDM Chicago Holdings, LLC.
“Claims”
shall
mean any and all manner of
claims, demands, causes of action, obligations, damages, or liabilities
whatsoever of every kind and nature, at law or in equity, known or unknown,
and
whether or not discoverable.
“Closing”
shall
have the meaning set forth in
Section 4.6.
“Closing
Date” shall mean the date
on which the
Closing takes place.
“Indemnified
Party” shall mean a
Seller.
“Lien”
shall
mean any lien (including,
without limitation, liens imposed by Law, such as, but not limited to, mechanics
liens), claim, charge, security interest, mortgage, pledge, easement,
encumbrance, condition, covenant or restriction of record, zoning or similar
restriction, conditional sale or other title retention agreement, action, equity
or adverse claim.
“Member”
shall
mean each Person holding a
Membership Interest in the Company.
“Membership
Interests” shall have the meaning
set forth in
the recitals hereto.
“Net
Profit” shall mean, with respect
to any
period, net profit of the
Company for such period,
and shall be calculated in accordance with the Company’s past
practicesafter deduction of all
expenses actually incurred by the Company for such period, including the Support
Fee.
2
“NYSE”
shall
mean the New York Stock
Exchange.
“Operating
Agreement” shall mean the Amended and Restated Operating Agreement of the
Company, made effective December 1, 2004.
“Person”
shall
mean an individual, a
corporation, a limited liability company, a partnership, an association, or
trust or any other entity or organization.
“Purchase
Price” shall have the meaning
set forth in
Section 4.2.
“Put
Exercise Notice” shall have the meaning
set forth in
Section 3.3.
“Put
Option” shall have the meaning
set forth
in the recitals hereto.
“Released
Parties” shall mean each of
the Buyer, the
Company, CBONP LLC and their respective Affiliates and each of their respective
past and present officers, directors, agents and employees, and the members
of
the Management Committees of the Company, CBONP LLC, VDM Trading LLC, VDM
Capital Markets LLC, Windmill Capital Holdings, LLC and VDM Chicago Holdings,
LLC, and their successors and assigns, in both their individual and LLC
capacities.
“Releasing
Party” shall mean each
Seller.
“SEC”
shall
mean the Securities and Exchange
Commission.
“Sellers”
shall
have the meaning set forth in
the preamble.
“SRO”
shall
mean self-regulatory
organization, including but not limited to NYSE.
“Support
Fee” means a fee at the
rate of 10% per
annum on the unpaid portion of the Purchase Price due to each
Seller.
“Team
Leaders” shall mean a group
of six (6) to eight
(8) managers of the Company, each of whom leads a team of six (6) to eight
(8)
persons on the floor, and each of whose selection has been approved by the
Buyer. If any Team Leader terminates his membership in the team, the
remaining Team Leaders shall select a new Team Leader, subject to the approval
of the Buyer.
“Term”
shall
have the meaning set forth in
Section 3.1.
ARTICLE
II
Grant
of
Options
Section
2.1 The
Call Option. Subject to and upon
the
terms and conditions set forth in this Agreement, each Seller does hereby grant
a Call Option to the Buyer to purchase, in
3
whole
or in part, the Membership
Interests of each Seller as set forth on Schedule A hereto, which in the
aggregate constitute
15.5875% of the Membership Interests of the Company.
Section
2.2 The
Put Option. Subject to and upon
the
terms and conditions set forth in this Agreement, the Buyer does hereby grant
a
Put Option to each Seller to require the Buyer to purchase, in whole or in
part,
the Membership Interests of each Seller as set forth on Schedule A hereto,
which
in the aggregate constitutes 15.5875% of the Membership Interests of the
Company.
ARTICLE
III
Exercise
of Call and Put
Options
Section
3.1 Determination
of Available
Cash. Not
later than the 10th day of each calendar quarter for so long as any of
the Sellers hold
Membership Interests in the Company which have not been scheduled for a Closing
pursuant to a Put Exercise Notice or Call Exercise Notice (the “Term”), the
Buyer shall review the financial position of the Company at the end of the
previous calendar quarter and determine whether, in Buyer’s sole
judgment, the Company has sufficient Cash Flow available to permit the Buyer
(using such available Cash Flow) to exercise its Call Option to purchase
Membership Interests, and, if so, the dollar amount of cash available for such
call.
Section
3.2 Exercise
of Call
Option. In
the event, in the Buyer’s judgment, there is sufficient Cash Flow available at
the end of any
calendar quarter, then at any time thereafter, the Buyer may notify the Members
whether the Buyer will exercise its Call Option, and if so, the Buyer shall exercise
the Call
Option to acquire the
amount of Membership Interests of the Sellers on a pro rata basis that can
be
purchased with such amount of Cash Flow. The Call Option shall be
exercised by the giving of written notice (“Call Exercise Notice”) to all
Members, fixing a Closing Date for the purchase and sale of the Membership
Interests to be purchased and sold.
Section
3.3 Exercise
of Put
Option. If
by
(a) June
30, 2009 or
(b) any
earlier date on which the
Company sells substantially all of its assets or Buyer, through any
transaction or series of transactions, including any merger or
4
consolidation,
sells toany Person other than an
Affiliate of Buyer
more than fifty
percent (50%) of its Membership Interests
in the
Company, any
of the Membership Interests remain
owned by the Sellers, then each Seller shall have the right, exercisable within
ninety (90) days thereafter, to exercise his Put Option as to all his remaining
and previously unsold Membership Interest by giving notice to the Buyer (“Put
Exercise Notice”), whereupon the Buyer shall be obligated to purchase such
Membership Interest, as well as the Membership Interest of all the Sellers,
for
the Purchase Price applicable to each Seller. The Put Exercise Notice
may be given to the Buyer by any of the Sellers, with a copy to the other
Sellers and to the Company, fixing a date for the Closing of the purchase and
sale of the remaining Membership Interests.
3.4 Distribution
in the Event of Capital Reduction. In the event of any reduction
of required capital (“NLA” requirement) affecting the Company, any repayment or
other distribution of capital by the Company shall be made pro rata to Buyer
and
the Sellers in proportion to their then existing Membership Interests in the
Company.
ARTICLE
IV
Purchase
and Sale of Membership
Interests Following Option Exercise
Section
4.1 Purchase
and Sale. Subject to the terms
and
conditions set forth in this Agreement, at the Closing following the exercise
of
any Call Option or Put Option, each Seller as to which such Option has been
exercised agrees to sell, transfer, convey and assign to the Buyer and the
Buyer
agrees to purchase from each Seller, the Seller’s respective Membership
Interests as set forth next to his name on Schedule 4.1 hereof
in exchange for the Purchase
Price applicable to such Seller.
Section
4.2 Purchase
Price. The purchase
pricefor the Membership Interests
being sold by each of the Sellers upon exercise of a Call Option or Put Option
(the “Purchase Price”) shall be an amount equal
to such
Member’s Capital Balance. The Purchase Price for
any partial
purchase of a Seller’s Membership Interest shall be pro-rated in proportion to
the fraction thereof being purchased.
Section
4.3 Payment
of Purchase
Price. The
Purchase Price payable to each Seller shall be paid by the
Buyer. Three of the Sellers have a negative capital balance at March
5
31,
2007, as reflected on Schedule 4.2. No
payments shall be made
by the Buyer to any Seller with a negative Capital
Balance. Sellers with a negative
Capital
Balanceneed not repay the Company
for the negative Capital Balances except as an offset to any bonus such Seller
may be awarded as provided in ARTICLE VII. It is understood and
agreed that distributions by the Company to the Buyer are and will be subject
to
approval of the NYSE, and such distributions may be delayed by the need to
receive NYSE approval. Except for payments made
pursuant to
Section
4.5, amounts payable
to
the Sellers shall be paid pro rata to each Seller at the same time as payments
are made to all Sellers, and each Seller’s amount shall be in the proportion
that the amount of Purchase Price owed to such Seller bears to the aggregate
amount owed to all Sellers.
Section
4.4 Support
Fee. The Buyer shall pay
to each
Seller a Support Fee, which shall be paid monthly on the 10th day of each
calendar month to each
Seller by the Buyer.
Section
4.5 Termination
of
Employment.
(a) In
the
event that any Seller shall cease to be employed by the Company or any of its
Affiliates following the date hereof, for any reason, the Put Option of such
Seller shall be deemed exercised on the last day of the Seller’s employment and
the remaining unpaid balance of the Purchase Price payable to such Seller shall
be paid to him by the Buyer within thirty (30) days of termination of his
employment, subject to approval by the NYSE. A Seller who voluntarily
resigns from the Company up to and including June 30, 2007, shall be granted
a
severance package comparable to the severance package as of the date hereof
that
would be granted to other employees of the Company with a similar duration
of
service and service record with the Company; provided, however, that the
obligation of the Company and the Buyer under this sentence shall be limited
to
providing a severance package to a maximum of eight (8) Sellers.
(b) Any
Seller
whose employment with the Company is terminated involuntarily, without Cause,
at
any time from and after the date hereof, shall be granted a severance package
comparable to the severance package as of the date hereof that would be granted
to other employees of the Company with a similar duration of service and service
record with the Company.
Section
4.6 The
Closing. The closing(s) of
the
purchase and sale of the Membership Interests contemplated hereby (each, a
“Closing”) shall take place at the offices of
6
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx LLP,
1177 Avenue of the Americas, New York, New York at 10:00 a.m. local time upon
one (1) week’s written notice from the Buyer to the Sellers, or from the Sellers
to the Buyer, at any time after the exercise of a Put or Call Option and
satisfaction or waiver of all conditions precedent to the Closing as set forth
in ARTICLE VIII of this Agreement (other than conditions which can be satisfied
only by delivery of certificates, opinions or other documents at the Closing),
or at such other time and place as the parties shall agree.
Section
4.7 Deliveries
at Closing. On a Closing Date,
each of
the Sellers shall deliver to the Buyer assignments of their Membership Interests
in the form of Schedule 4.7 hereto, against delivery by the Buyer to each of
the
Sellers of the portion of the Purchase Price payable to them at the Closing,
by
check or by wire transfer of immediately payable funds. At the
Closing, the parties hereto shall also execute and deliver to each other all
of
the documents and other items required to be delivered at such Closing pursuant
to this Agreement.
Section
4.8 Guarantee. Van
der Moolen
Holding,
N.V., by its signature hereto, hereby
agrees to guarantee the payment of the Purchase Price to each Seller, as and
when it would be payable by the Buyer pursuant to the provisions of this
Agreement.
ARTICLE
V
Representations
and Warranties of the
Sellers
Section
5.1 Ownership
of
Interests. Each Seller hereby,
severally and not jointly, represents and warrants to the Buyer as
follows:
(a) Each
Seller is the record and beneficial
owner of all of the issued and outstanding Membership Interests set forth
opposite his name on Schedule 4.1, free and clear of Liens, and there are no
voting trusts, proxies or other voting agreements with respect to such
Membership Interests. The delivery to the Buyer by each Seller of his
Membership Interests pursuant to the provisions of this Agreement will transfer
to the Buyer good and valid title thereto, free and clear of all
Liens.
(b) Each
Seller has the valid power and
authority to enter into, deliver and perform this Agreement, and this Agreement
constitutes his valid and binding obligation enforceable against him in
accordance with its terms.
7
(c) Except
for any payments due to each
Seller under this Agreement or for payroll compensation owing in the ordinary
course of business, each Seller has been paid all sums due to him from the
Company as of the date hereof for loans and compensation
and no monies are
otherwise owed as of the date hereof to any Seller by the Company or the
Buyer.
ARTICLE
VI
Representations
and Warranties of the
Buyer and the Company
Section
6.1 The
Buyer and the Company, jointly and
severally, represent to the Sellers as follows:
(a) The
Company and the Buyer are each
limited liability companies validly existing under the laws of the State of
New
York.
(b) Each
of the Company and Buyer (i) has
duly authorized and executed this Agreement; (ii) has the full power and
authority to enter into, deliver and perform this Agreement, and (iii) this
Agreement constitutes its valid and binding obligations enforceable against
it
in accordance with its terms.
ARTICLE
VII
Employment
Section
7.1 Nature
of Employment. Following the Closing,
the
Company and the Sellers contemplate that the employment of the Sellers by the
Company will be continued. Such employment will be “at will” such
that it may be terminated by either party with or without Cause. The
initial salaries and benefits of each Seller shall
be the same as that
prevailing at the date of this Agreement.
Section
7.2 Bonus
Pool. The Company shall
establish
an annual bonus pool for the employees of the Company which, subject to the
adjustments provided in paragraph (a) of this Section 7.2, and to the provisions
of Sections 7.3 and 7.4, will be in an amount equal to 35% of the annual Net
Profit of the Company (the “Bonus Pool”).
(a) A
total of
4.2857% of the Bonus Pool shall be payable not to the Sellers, but to CBONP,
LLC
for application against that portion of the Chicago Holdings Obligation owing
by
CBONP, LLC, until such times as the balance of such portion has been
8
reduced
to
zero, or VDM Chicago Holdings, LLC or CBONP is no longer obligated with respect
to the Chicago Holdings Obligation. This will leave an amount equal
to 33.5% of the annual Net Profit available for the Bonus Pool, subject to
further adjustments, as provided below.
(b) Two
(2) of the employees, namely,
Messrs. Oscher and Xxxxxxxxxx, have employment agreements directly with the
Company; and their bonuses, as described in those agreements, will be determined
and paid to them pursuant to those employment
agreements. Accordingly, the Bonus Pool will be reduced by the
aggregate amount of the bonuses payable to those employees under their
employment agreements; provided, however, that the amount of any “Supplemental
Payments” (as defined in those employment agreements) shall not reduce the Bonus
Pool.
(c) The
amount of the Bonus Pool for each
year will be calculated within ten (10) Business Days of the receipt by the
Company of its audited financial statements for the year in
question. The allocation of the Bonus Pool, after amounts allocated
pursuant to 7.2(a), shall be made annually by the CEO, in consultation
with the
Team Leaders.
(d) Prior
to the end of the calendar year,
the CEO, in consultation with the Team Leaders, shall estimate the Bonus
Pool.
Section
7.3 Bonus
Pool Calculation for 2007 and
2008. The
2007 Bonus Pool shall be based on results of Company operations commencing
as of
January 1, 2007 in order that the results of operations from January 1, 2007
through the Closing Date will be included in the calculation of the 2007 Bonus
Pool. The 2008 Bonus Pool shall be based on results of Company
operations commencing as of January 1, 2008.
Section
7.4 Discretionary
Changes to Bonus
Pool. The
CEO may, in his discretion, determine to add or subtract from the Bonus Pool
otherwise determined in accordance with Sections 7.2 and 7.3. If the
CEO exercises discretion under this paragraph to reduce the Bonus Pool he will
so notify the Sellers in writing within ten (10) days of such
decision. Examples of circumstances under which such discretion might
be exercised are as follows:
(a) If
Net Profit for 2007 proves to be a
small amount, the CEO may in his discretion, determine that the Bonus Pool
for
that year shall be an amount greater than 35% of Net Profit.
9
(b) If
an increase in the 2007 Bonus Pool
resulted from exercise by the CEO of discretion to do so, as for example
illustrated in Paragraph 7.2(a), the CEO may, in his discretion, reduce the
2008
Bonus Pool by an amount approximating the discretionary increase for
2007.
It
is understood that the above are
examples, are not the only cases that might involve discretionary
changes.
Section
7.5 Timing
of Bonus
Payments. The Company shall
pay
ninety percent (90%) of the estimated Bonus Pool to the recipients during the
last week of the calendar year. The remaining ten percent (10%), as adjusted
for
the actual Net Profits of the Company, shall be paid within five (5) Business
Days after the actual amount of the Bonus Pool has been determined pursuant
to
Sections 7.2, 7.3 and 7.4 but in no event later than March 15 of the following
year.
Section
7.6 Indemnification.
(a) The
Company shall indemnify and hold
harmless, and advance expenses to, any Indemnified Party who becomes a party
or
is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, by reason of such Indemnified Party’s activities on
behalf of the Company, as a Member or former Member of the Company or as a
Team
Member of the Company, or as a Member of the Management Committee of the
Company, VDM Trading, LLC, VDM Capital Markets, LLC, Windmill Capital Holdings,
LLC, and Van der Moolen Chicago Holdings, LLC, against losses, damages, claims
or expenses actually or reasonably incurred by the Indemnified Party in
connection with such action, suit or proceeding, for which such Indemnified
Party has not otherwise been reimbursed (including reasonable attorneys’ fees,
judgments, fines and amounts paid in settlement); provided, however, that no
indemnification shall be made to or on behalf of any Indemnified Party if a
judgment or other final adjudication adverse to such Indemnified Party
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action
so
adjudicated.
10
ARTICLE
VIII
General
Release
Section
8.1 General
Release. Except for Claims
relating
to a breach of this Agreement or arising out of the obligations of Company
or
Buyer hereunder, and in exchange for and in consideration of the
promises, covenants and agreements made by the Released Parties herein, each
Releasing Party hereby releases the Released Parties, to the maximum extent
permitted by law, from any and all Claims which such Releasing Party has, owns
or holds for any period prior to and arising up to the Releasing Party’s
execution of this Agreement, and for all Claims which a Releasing Party might
have, own or hold in the future, including, but not limited to Claims arising
out of or related to the Releasing Party’s employment by the Company or
termination of such employment.
ARTICLE
IX
Conditions
of
Closing
Section
9.1 Conditions
Precedent to the
Obligations of the Sellers. The obligation of
each
Seller to sell, transfer, convey and assign the Membership Interests and
otherwise effect the transactions contemplated hereby is subject to the
satisfaction at or prior to the relevant Closing Date of each of the following
conditions, unless waived in writing by the Sellers:
(a) Compliance
with
Covenants. The Buyer and the
Company
shall have performed in all material respects all obligations and agreements,
and complied in all material respects with all covenants, contained in this
Agreement to be performed or complied with by them prior to or at the Closing
Date;
(b) Representations
and Warranties of the
Buyer and the Company. Each and every
representation and warranty of the Buyer and the Company contained in this
Agreement, shall have been true and correct when made and shall be deemed
repeated at the Closing and shall be true and correct as of the Closing Date,
except that any such representations and warranties that are made as of a
specified date shall only be required to be true and correct as of that
date.
11
(c) General
Release. Each Releasing
Partyagrees that it will unconditionally
release, acquit and discharge each of the Released Partiesfrom
any and all actions, causes of
action, suits, rights, debts, dues, sums of money, accounts, bonds, bills,
covenants, contracts, controversies, omissions, agreements, promises, variances,
damages, liabilities, obligations, judgments, executions, claims and demands,
or
other recourse of any kind or nature whatsoever, matured or unmatured,
liquidated or unliquidated, absolute or contingent, known or unknown, at law,
in
equity or otherwise regardless of the nature of the claim, whether arising
in
contract, statute, tort, fraud, negligence or otherwise (including, without
limitation, claims for rescission, contribution or indemnification), which
such
Releasing Party has, owns or holds, or might have, own or hold, or which could
have been brought or alleged, or could be brought or alleged, against any of
the
Released Parties based upon, in connection with, arising from or otherwise
related to the transfer of Membership Interests and the Call Options or the
Put
Options. This release is not intended to cover and shall not cover
any obligations of the Company or the Buyer under this Agreement or any rights
of Sellers to the NYSE shares set forth on Schedule B attached hereto and
incorporated herein by this reference, which were held in the name of the
Company and which are in the process of being transferred to certain of the
Sellers.
Section
9.2 Conditions
Precedent to the
Obligations of the Buyer and the Company. The obligation of
the Buyer
to purchase the Membership Interests and of the Buyer and the Company otherwise
to effect the transactions contemplated hereby is subject to the satisfaction
at
or prior to the Closing Date of each of the following conditions, unless waived
in writing by the Buyer and the Company:
(a) Compliance
with
Covenants. Each Seller shall
have
performed in all material respects all obligations and agreements, and complied
in all material respects with all covenants, contained in this Agreement to
be
performed or complied with by them prior to or on the Closing
Date;
(b) Representations
and Warranties of the
Sellers. Each and every
representation and warranty of each Seller contained in this Agreement shall
have been true and correct when made and shall be deemed repeated at the Closing
and shall be true and correct as
12
of
the Closing Date, except that any
such representations and warranties that are made as of a specified date shall
only be required to be true and correct as of that date.
(c) Consents
and
Approvals. All consents, approvals,
orders, authorizations, registrations, declarations and filings required to
be
obtained from unrelated third parties or made prior to the Closing Date shall
have been made or obtained;
(d) NYSE
Approval. The NYSE shall have
granted
all approvals which are required to be obtained. Promptly upon
exercise of either a Put Option or Call Option, Buyer and the Company shall
seek
all needed NYSE approvals, and diligently pursue same at their sole
expense.
(e) Purchases
of Not Less Than all
Membership Interests. All Sellers who shall
have
received a Call Exercise Notice or given or deemed to have given a Put Exercise
Notice shall have tendered all the Membership Interests to the Buyer at the
Closing.
ARTICLE
X
MISCELLANEOUS
Section
10.1 Notices. All
notices and other
communications given or made pursuant hereto shall be in writing and shall
be
deemed to have been duly given or made as of the date delivered, mailed or
transmitted, and shall be effective upon receipt, if delivered personally,
mailed by registered or certified mail (postage prepaid, return receipt
requested) or sent by fax (with immediate confirmation) or nationally recognized
overnight courier service, as follows:
If
to the Sellers, to each of them at
the address shown under his name on Schedule 4.1
with
a copy to (which shall not
constitute notice):
Xxxxxxxx
Xxxxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Attention: Xxxxx
X. Xxxxxx,
Esq.
Fax: (000)
000-0000
and
13
If
to the Buyer, to:
Mill
Bridge IV, LLC
c/o
van der Moolen Specialists USA,
Inc.
00
Xxxxxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Attention: Xxxx
Xxxxxxx
Fax: (000)
000-0000
with
a copy to (which shall not
constitute notice):
Xxxxxx
Xxxxx Xxxxxxxx & Xxxxxxx
LLP
0000
Xxxxxx xx xxx
Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx
00000
Attention: Xxxxxxx
Xxxxxx,
Esq.
Fax
No.: (000)
000-0000
or
to such other Person or address or
facsimile number as either party shall specify by like written notice to the
other party hereto (any such notice of a change of address to be effective
only
upon actual receipt thereof).
Section
10.2 Entire
Agreement. This Agreement (including
any Schedules and Exhibits, which are an integral part hereof) constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof and thereof and supersede all prior written or oral and all
contemporaneous oral agreements and undertakings between any of the parties
hereto with respect to the subject matter hereof and
thereof.
Section
10.3 Assignment;
Binding Effect; No Third
Party Beneficiary. Buyer shall have
the right
to assign its rights and obligations under this Agreement to an Affiliate of
Buyer; provided (a) it shall give notice to Sellers of any such assignment
within five (5) Business Days of making the same; (b) no such assignment shall
discharge the guaranty given pursuant to Section 4.8 of this Agreement and
(c)
the assignee shall execute an instrument agreeing to such assignment and assume
the obligations of Buyer under this Agreement, a copy of which shall be
delivered to Sellers, together with the notice given pursuant to Clause (a)
above. Except as just stated, neither this Agreement nor any of the
rights, benefits or obligations hereunder may be assigned, in whole or in part,
by either party (whether by operation of law or otherwise) without the prior
written consent of the other party hereto; provided, however, that the Buyer
may
assign its rights hereunder to any Affiliate of the Buyer which assumes the
obligations of the Buyer
14
hereunder,
provided that no such
assignment shall relieve the Buyer of its obligations hereunder. Any
attempted assignment in violation of this Section 9.3 shall be
void. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns. Except as
expressly provided herein, nothing in this Agreement
is intended
to, or shall be construed to, confer on any Person, other than the parties
or
their respective successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this
Agreement.
Section
10.4 Fees
and Expenses. Buyer and/or the
Company
shall pay reasonable fees and disbursements of Xxxxxxxx Xxxxxxx LLP as
counsel to Sellers in connection
with negotiating and closing this Agreement. In the event of a
dispute between the Buyer and/or the Company and the Sellers, arising only
with
respect to the exercise or consummation of a Put Option or Call Option pursuant
to this Agreement, and with respect to no other provisions of this Agreement,
if
there is a court decision in favor of one party, such prevailing party shall
be
entitled to recover its reasonable legal fees and disbursements from the other
party in connection with such dispute. Except as otherwise expressly
set forth herein, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be borne by the party
which incurs such cost or expense.
Section
10.5 Amendments. This
Agreement may be
amended by the parties at any time prior to the Closing Date; provided, however,
that this Agreement may not be amended or modified except by an instrument
in
writing signed on behalf of each of the parties hereto.
Section
10.6 Waivers. At
any time prior to the
Closing Date, the Sellers or the Buyer and the Company may, to the extent
legally allowed, (a) extend the time specified herein for the performance of
any
of the obligations or other acts of the other, (b) waive any inaccuracies in
the
representations and warranties of the other contained herein or in any document
delivered pursuant hereto or (c) waive compliance by the other with any of
the
agreements or covenants of such other party contained herein. Any
such extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of the party to be bound thereby. No such
extension or waiver shall constitute a waiver of, or estoppel with respect
to,
any subsequent or other breach or failure to strictly comply with the provisions
of this Agreement. The failure of any party to insist on strict
compliance with this Agreement or to
15
assert
any of its rights or remedies
hereunder or with respect hereto shall not constitute a waiver of such rights
or
remedies.
Section
10.7 Severability. If
any term or other
provision of this Agreement is held to be
invalid, illegal or incapable of being
enforced by any court of competent jurisdiction, all other conditions 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
thereby is not affected in any manner materially adverse to either
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 to the
end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
Section
10.8 Captions. The
headings contained in
this Agreement are for reference purposes only and shall not affect in any
way
the meaning or interpretation of this Agreement.
Section
10.9 Counterparts. This
Agreement may be
executed in counterparts, each of which shall be deemed to be an original,
and
all of which together shall be deemed to be one and the same
instrument. This Agreement shall become effective when one or more
such counterparts have been signed by each of the parties and delivered to
the
other party. Facsimile transmission of any signed original
counterpart and/or retransmission of any signed facsimile transmission shall
be
deemed the same as the delivery of an original.
Section
10.10 Governing
Law. This Agreement shall
be
governed by and construed in accordance with the laws of the State of New York,
without regard to any applicable principles of conflicts of law to the
contrary.
Section
10.11 Consent
to
Jurisdiction. Each of the parties
irrevocably submits to the exclusive jurisdiction of the United States District
Court for the Southern District of New York located in the borough of Manhattan
in the City of New York, or if such court does not have jurisdiction, the
Supreme Court of the State of New York, New York County, for the purposes of
any
suit, action or other proceeding in connection with this Agreement and the
transactions contemplated hereby. Each of the parties agrees not to
bring any suit, action or proceeding against the other party in connection
with
this Agreement and the transactions
16
contemplated
hereby in any court other
than the United States District Court for the Southern District of New York
located in the borough of Manhattan in the City of New York, or if such court
does not have jurisdiction, the Supreme Court of the State of New York, New
York
County. Each of the parties irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement or the transactions contemplated hereby in the courts
referred to above, and hereby further irrevocably and unconditionally waives
and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
Section
10.12 WAIVER
OF JURY TRIAL. EACH OF THE PARTIES
HEREBY
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
Section
10.13 Construction. In
this Agreement (i) “he”
or “his” or words denoting any gender include all genders, (ii) the word
“including” shall mean “including without limitation,” whether or not expressed,
(iii) any reference to a statute shall mean the statute and any regulations
thereunder in force as of the date of this Agreement unless otherwise expressly
provided, (iv) any reference herein to a Section, Article, Schedule or Exhibit
refers to a Section or Article of or a Schedule or Exhibit to this Agreement,
unless otherwise stated, and (v) when calculating the period of time within
or
following which any act is to be done or steps taken, the date which is the
reference day in calculating such period shall be excluded and if the last
day
of such period is not a Business Day, then the period shall end on the next
day
which is a Business Day.
Section
10.14 Negotiated
Agreement. The Buyer, the Company
and
each Seller acknowledge that they have been advised and represented by counsel
in the negotiation, execution and delivery of this Agreement and accordingly
agree that if an ambiguity exists with respect to any provision of this
Agreement, such provision shall not be construed against any party because
such
party or its representatives drafted such provision.
Signatures
On Next
Page
17
IN
WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
| BUYER: | |||||
| MILL BRIDGE IV, LLC | |||||
| By: |
/s/
R.E. den Drijver
|
|
|||
|
Name:
R.E. den Drijver
|
|
||||
|
Title
|
|
||||
|
COMPANY:
|
|||||
|
VAN
DER MOOLEN SPECIALISTS USA,
LLC
|
|||||
| By: |
/s/
R.E. den Drijver
|
|
|||
|
Name:
R.E. den Drijver
|
|
||||
|
Title:
|
|
||||
|
By
its signature below the
undersigned agrees to
the
provision of Section 4.8 of
this Agreement.
|
|||||
|
VAN
DER MOOLEN HOLDING
N.V.
|
|||||
| By: |
/s/
R.E. den Drijver
|
|
|||
|
Name:
R.E. den Drijver
|
|
||||
|
Title:
|
|
||||
| Sellers | |
|
/s/
Xxxxxx Xxxxxx
|
|
|
Xxxxxx
Xxxxxx
|
|
|
/s/
Xxxxx Xxxxx
|
|
|
Xxxxx
Xxxxx
|
|
|
/s/
Xxxxxxx Xxxxxxx
|
|
|
Xxxxxxx
Xxxxxxx
|
|
|
|
|
|
|
18
|
/s/
Xxxxx Xxxxxxxxxx
|
|
|
Xxxxx
Xxxxxxxxxx
|
|
|
/s/
Xxxxxxx X. Xxxxxxxx
|
|
| Xxxxxxx X. Xxxxxxxx | |
|
/s/
Xxxxxx Xxxxx
|
|
|
Xxxxxx
Xxxxx
|
|
|
/s/
Xxxxx Xxxxxxxx
|
|
|
Xxxxx
Xxxxxxxx
|
|
|
/s/
Xxxxx Xxxxxxx
|
|
|
Xxxxx
Xxxxxxx
|
|
|
/s/
Xxxx Xxxxxxx
|
|
|
Xxxx
Xxxxxxx
|
|
|
/s/
Xxxxx Xxxxxxxx
|
|
|
Xxxxx
Xxxxxxxx
|
|
|
/s/
Xxxxxx
Xxxxxxx
|
|
|
Xxxxxx
Xxxxxxx
|
|
|
/s/
Xxxxxxx Xxxxx
|
|
| Xxxxxxx Xxxxx | |
|
/s/
Xxxx Xxxxxxx
|
|
|
Xxxx
Xxxxxxx
|
|
|
/s/
Xxxxxxx Xxxxxxx
|
|
|
Xxxxxxx
Xxxxxxx
|
|
|
/s/
Xxxxxxx Xxxxxxxxxx
|
|
|
Xxxxxxx
Xxxxxxxxxx
|
|
|
/s/
Xxxxx X. Xxxxxxxx
|
|
|
Xxxxx
X.
Xxxxxxxx
|
|
| /s/ Xxxxxxx X. XxXxxxxxx | |
|
Xxxxxxx
X.
XxXxxxxxx
|
|
|
/s/
Xxxxx X. XxXxxxx
|
|
|
Xxxxx
X. XxXxxxx
|
|
|
/s/
Xxxxx X. Xxxxxx
|
|
|
Xxxxx
X. Xxxxxx
|
|
|
/s/
Xxxxxxxx X. Xxxxxxx
|
|
|
Xxxxxxxx
X.
Xxxxxxx
|
19
|
/s/
Xxxx Xxxxxx
|
|
|
Xxxx
Xxxxxx
|
|
|
/s/
Xxxxxxx Xxxxx
|
|
|
Xxxxxxx
Xxxxx
|
|
|
/s/
Xxxxxx Xxxxxxxxxx
|
|
|
Xxxxxx
Xxxxxxxxxx
|
|
|
/s/
Xxxxx X. Xxxxxxx
|
|
|
Xxxxx
X. Xxxxxxx
|
|
|
/s/
Xxxxx Xxxxxxxxx
|
|
|
Xxxxx
Xxxxxxxxx
|
|
|
/s/
Xxxxx X. Xxxxx
|
|
|
Xxxxx
X.
Xxxxx
|
|
|
/s/
Xxxx Xxxxxxxx
|
|
|
Xxxx
Xxxxxxxx
|
|
| /s/ Xxxxxxx Xxxxx | |
|
Xxxxxxx
Xxxxx
|
20
Van
der Moolen Specialists USA, LLC
As
of March 31, 2007
|
SCHEDULE
A
|
SCHEDULE
4.1
|
SCHEDULE
4.2
|
|||
|
3/31
|
|||||
|
Sellers
|
3/31/2007
|
Capital
Balance
|
|||
|
March-07
|
Points
|
(Total
(a+b))
|
|||
|
1
Xxxxxx Xxxxxx
|
*
|
*
|
|||
|
2
Xxxxx Xxxxx
|
*
|
*
|
|||
|
3
Xxxxxxx Xxxxxxx
|
*
|
*
|
|
||
|
4
Xxxxxxxx Xxxxxxxx R
|
*
|
*
|
|||
|
5
Xxxxxxxxxx Xxxxx
|
*
|
*
|
|||
|
6
Xxxxxxxx Xxxxxxx C
|
*
|
*
|
|||
|
7
Xxxxx, Xxxxxx
|
*
|
*
|
|||
|
8
Xxxxxxxx, Xxxxx
|
*
|
*
|
|||
|
9
Xxxxxxx Xxxxx
|
*
|
*
|
|||
|
10
Xxxxxxx Xxxx
|
*
|
*
|
|||
|
11
Xxxxxxxx Xxxxx
|
*
|
*
|
|||
|
12
Xxxxxxx Xxxxxx
|
*
|
*
|
|||
|
13
Xxxxx Xxxxxxx
|
*
|
*
|
|||
|
14
Xxxxxxxxx Xxxxxx M
|
*
|
*
|
|||
|
15
Xxxxxxx Xxxx
|
*
|
*
|
|||
|
16
Xxxxxxx Xxxxxxx
|
*
|
*
|
|||
|
00
Xxxxxxxxxx Xxxxxxx
|
*
|
*
|
|||
|
18
Xxxxxxxx Xxxxx E
|
*
|
*
|
|||
|
19
XxXxxxxxx Xxxxxxx J
|
*
|
*
|
|||
|
20
XxXxxxx Xxxxx E
|
*
|
*
|
|||
|
21
Xxxxxx Xxxxx L
|
*
|
*
|
|||
|
22
Xxxxxxx Xxxxxxxx S
|
*
|
*
|
|||
|
23
Xxxxxx Xxxx
|
*
|
*
|
|||
|
24
Xxxxx, Xxxxxxx
|
*
|
*
|
|||
|
25
Xxxxxxxxxx Xxxxxx
|
*
|
*
|
|||
|
26
Xxxxxxx Xxxxx J
|
*
|
*
|
|||
|
27
Xxxxxxx Xxxxxx
|
*
|
*
|
|||
|
28
Xxxxxxxxx Xxxxx
|
*
|
*
|
|||
|
29
Xxxxx Xxxxx J
|
*
|
*
|
|||
|
30
Sumamer Xxxx
|
*
|
*
|
|||
|
31
Xxxxxxx Xxxxxx V
|
*
|
*
|
|||
|
32
Xxxxx Xxxxxxx
|
*
|
*
|
|||
|
Total
|
15.587500%
|
8,269,963
|
|||
21
SCHEDULE
B
Transfer
of NYSE Shares to VDM Specialist USA, LLC Partners
January
18, 2007
|
Name
(Last, First)
|
NYSE
Shares
|
|||
|
Xxxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxx,
Xxxxx
|
*
|
|||
|
Xxxxxxxx,
Xxxxxxxx R
|
*
|
|||
|
Xxxxxxxxxx,
Xxxxx
|
*
|
|||
|
Xxxxxxxx,
Xxxxxxx C
|
*
|
|||
|
Close,
Xxxxxxx
|
*
|
|||
|
Xxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxxxxx,
Xxxxx
|
*
|
|||
|
Xxxxxxx,
Xxxxx
|
*
|
|||
|
Xxxxxxxx,
Xxxxxx B
|
*
|
|||
|
Xxxxxxx,
Xxxx
|
*
|
|||
|
Xxxxxxxxx,
Xxxxxx J
|
*
|
|||
|
Xxxxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxx,
Xxxxxxx
|
*
|
|||
|
Xxxxxxxxx,
Xxxxxx M
|
*
|
|||
|
Xxxxxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxxxx,
Xxxx
|
*
|
|||
|
Xxxxxxxx,
Xxxxx E
|
*
|
|||
|
XxXxxxxxx,
Xxxxxxx X
|
*
|
|||
|
XxXxxxx,
Xxxxx X
|
*
|
|||
|
Xxxxxx,
Xxxxx X
|
*
|
|||
|
Xxxxxxx,
Xxxxx
|
*
|
|||
|
Xxxxxxxx,
Xxxxx
|
*
|
|||
|
Xxxxxxx,
Xxxx X
|
*
|
|||
|
Xxxxxxx,
Xxxxxxxx S
|
*
|
|||
|
Xxxxxx,
Xxxx
|
*
|
|||
|
Xxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxx,
Xxxxxxx
|
*
|
|||
|
Xxxxxxxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxxxx,
Xxxxxx J
|
*
|
|||
|
Xxxxxxx,
Xxxxx J
|
*
|
|||
|
Xxxxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxxx,
Xxxxxx H
|
*
|
|||
|
Xxxxxxx,
Xxxxxxx
|
*
|
|||
|
Xxxxxx,
Xxx
|
*
|
|||
|
Xxxxxx,
Xxxxxxx
|
*
|
|||
|
Xxxxxxxxxx,
Xxxxx F
|
*
|
|||
|
Xxxxx,
Xxxxx J
|
*
|
|||
|
Xxxxxxxxx,
Xxxxxx B
|
*
|
|||
|
Xxxxxxxx,
Xxxx
|
*
|
|||
|
Xxxxxxx,
Xxxxxx A
|
*
|
|||
|
Xxxxxxx,
Xxxxxx V
|
*
|
|||
|
Xxxxxxxx,
Xxxxxx
|
*
|
|||
|
Xxxxxxxxxxx,
Xxxxxx J
|
*
|
|||
|
Xxxxxx,
Xxxx
|
*
|
|||
|
Xxxxx,
Xxxxxxx
|
*
|
|||
|
Total
|
27,084
|
|||
22
