Och-Ziff Capital Management Group, LLC Lock-Up Agreement
Exhibit
8
Och-Ziff
Capital Management Group, LLC
November
6, 2007
Xxxxxxx,
Xxxxx & Co.
Xxxxxx
Brothers Inc.
c/o
Goldman, Xxxxx & Co.
00
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Re: Och-Ziff
Capital Management Group, LLC– Lock-Up Agreement
Ladies
and Gentlemen:
The
undersigned understands that you, as representatives (the “Representatives”),
propose to enter into an Underwriting Agreement on behalf of the several
Underwriters named in Schedule I to such agreement (collectively, the
“Underwriters”), with Och-Ziff Capital Management Group, LLC, a Delaware limited
liability company (the “Company”), providing for a public offering of Class A
shares representing Class A limited liability interests of the Company (the
“Shares”) pursuant to a Registration Statement on Form S-1 (the “Registration
Statement”) filed with the Securities and Exchange Commission (the
“SEC”).
In
consideration of the agreement by the Underwriters to offer and sell the Shares,
and of other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the undersigned agrees that, during the period
specified in the following paragraph (the “Lock-Up Period”), the undersigned
will not 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 Shares (including, without limitation, Shares that may
be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the SEC and securities that may be issued upon exercise
of a
share option or warrant), or Class B shares or any securities convertible into
or exercisable or exchangeable for Shares (including the Och-Ziff Operating
Group A Units (as defined in the Registration Statement)) or Class B shares
of
the Company, whether any such transaction is to be settled by delivery of
Shares, Class B shares or other such securities, in cash or otherwise
(collectively the "Undersigned's Shares"). The foregoing restriction is
expressly agreed to preclude the undersigned from engaging in any hedging or
other transaction which is designed to or which reasonably could be expected
to
lead to or result in a sale or disposition of the Undersigned’s Shares even if
such Shares would be disposed of by someone other than the undersigned. Such
prohibited hedging or other transactions would include without limitation any
short sale or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any of the Undersigned’s
Shares or with respect to any security that includes, relates to, or derives
any
significant part of its value from such Shares.
The
initial Lock-Up Period will commence on the date of this Lock-Up Agreement
and
continue for 180 days after the public offering date set forth on the final
prospectus used to sell the Shares (the “Public Offering Date”) pursuant to the
Underwriting Agreement; provided, however, that if (1) during the last
17 days of the initial Lock-Up Period, the Company releases earnings results
or
announces material news or a material event or (2) prior to the expiration
of
the initial Lock-Up Period, the Company announces that it will release earnings
results during the 15-day period following the last day of the initial Lock-Up
Period,
1
then
in
each case the Lock-Up Period will be automatically extended until the expiration
of the 18-day period beginning on the date of release of the earnings results
or
the announcement of the material news or material event, as applicable, unless
the Representatives waive, in writing, such extension.
The
undersigned hereby acknowledges that the Company has agreed in the Underwriting
Agreement to provide written notice of any event that would result in an
extension of the Lock-Up Period pursuant to the previous paragraph to the
undersigned (in accordance with Section 13 of the Underwriting Agreement) and
agrees that any such notice properly delivered will be deemed to have been
given
to, and received by, the undersigned. The undersigned hereby further
agrees that, prior to engaging in any transaction or taking any other action
that is subject to the terms of this Lock-Up Agreement during the period from
the date of this Lock-Up Agreement to and including the 34th day following
the
expiration of the initial Lock-Up Period, it will give notice thereof to the
Company and will not consummate such transaction or take any such action unless
it has received written confirmation from the Company that the Lock-Up Period
(as such may have been extended pursuant to the previous paragraph) has
expired.
Notwithstanding
the foregoing, the undersigned may transfer the Undersigned’s Shares (i) as a
bona fide gift or gifts, provided that the donee or donees thereof
agree to be bound in writing by the restrictions set forth herein, (ii) by
will
or by intestacy provided that such transferee or transferees thereof agree
to be
bound in writing by the restrictions set forth herein, (iii) to any trust for
the direct or indirect benefit of the undersigned or the immediate family of
the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any
such
transfer shall not involve a disposition for value, (iv) as distributions to
partners or members of the undersigned (including upon any liquidation and
dissolution of the undersigned pursuant to a plan of liquidation approved by
the
undersigned’s partners or members), provided that the partners or members of the
undersigned agree to be bound in writing by the restrictions set forth herein,
(v) to a third party or group of third parties that are not affiliates of
Company in connection with a sale of 100% of the outstanding Shares or by way
of
merger of the Company with another person, (vi) to the undersigned’s affiliates
or to any investment fund or other entity controlled or managed by the
undersigned, provided that such affiliate, investment fund or other entity
controlled or managed by the undersigned agrees to be bound in writing by the
restrictions set forth herein, or (vii) with the prior written consent of the
Representatives on behalf of the Underwriters. For purposes of this
Lock-Up Agreement, “immediate family” shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin. In addition,
notwithstanding the foregoing, if the undersigned is a corporation, the
corporation may transfer all or any part of the Undersigned’s Shares to any
wholly-owned subsidiary of such corporation; provided, however, that in
any such case, it shall be a condition to the transfer that the transferee
execute an agreement stating that the transferee is receiving and holding such
Undersigned’s Shares subject to the provisions of this Agreement and there shall
be no further transfer of such Undersigned’s Shares except in accordance with
this Agreement, and provided further that any such transfer shall not involve
a
disposition for value. The undersigned now has, and, except as
contemplated by clause (i), (ii), (iii), (iv), (v), (vi) or (vii) above, for
the
duration of this Lock-Up Agreement will have, good and marketable title to
the
Undersigned’s Shares, free and clear of all liens, encumbrances, and claims
whatsoever. The undersigned also agrees and consents to the entry of
stop transfer instructions with the Company’s transfer agent and registrar
against the transfer of the Undersigned’s Shares except in compliance with the
foregoing restrictions.
2
The
undersigned understands that the Company and the Underwriters are relying upon
this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up
Agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors, and assigns.
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Very
truly yours,
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/s/
Xxxxxx X. Och
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Xxxxxx
X. Och
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3
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