Exhibit 10.22
EXECUTION COPY
MANAGEMENT OWNER PURCHASE AGREEMENT
by and among
AFFILIATED MANAGERS GROUP, INC.,
and
THE MANAGEMENT OWNER PARTIES HERETO
DATED AS OF AUGUST 28, 2001
TABLE OF CONTENTS
PAGE
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SECTION 1. PURCHASE OF THE MANAGEMENT OWNERS' WY LLC INTERESTS..............2
1.1 General..........................................................2
1.2 Purchase Price; Delivery of LLC Interests........................2
1.3 Time and Place of Closing........................................3
1.4 Further Assurances...............................................3
1.5 Transfer Taxes...................................................3
1.6 Restated LLC Agreements..........................................3
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT OWNERS..........3
2.1 Making of Representations and Warranties.........................3
2.2 LLC Interests Owned by the Management Owners.....................3
2.3 Authority of the Management Owners...............................4
2.4 Investment Advisory Representation...............................4
2.5 Agreements.......................................................5
2.6 Good Health......................................................5
2.7 Finder's Fee.....................................................5
SECTION 3. COVENANTS OF THE MANAGEMENT OWNERS...............................5
3.1 Making of Covenants and Agreements...............................5
3.2 Conduct..........................................................5
3.3 Notice of Default................................................6
3.4 Consummation of Agreement........................................6
3.5 Cooperation of the Management Owners.............................6
3.6 Confidentiality..................................................6
3.7 LLC Interests; Other Agreements..................................7
SECTION 4. COVENANTS OF THE MANAGEMENT OWNERS AND AMG WITH RESPECT TO
CERTAIN TAX MATTERS............................................7
4.1 Section 197(f)(9)................................................7
SECTION 5. REPRESENTATIONS AND WARRANTIES OF AMG............................7
5.1 Making of Representations and Warranties.........................7
5.2 Organization.....................................................7
5.3 Authority........................................................7
5.4 Litigation.......................................................8
5.5 Acquisition for Investment.......................................8
5.6 Finder's Fee.....................................................9
SECTION 6. COVENANTS OF AMG.................................................9
6.1 Making of Covenants and Agreements...............................9
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6.2 Notice of Default................................................9
6.3 Consummation of Agreement........................................9
SECTION 7. CONDITIONS TO THE OBLIGATIONS OF AMG.............................9
7.1 Representations, Warranties and Covenants........................9
7.2 Delivery........................................................10
7.3 Insurance.......................................................10
7.4 Purchase Agreement Closing......................................10
SECTION 8. CONDITIONS TO OBLIGATIONS OF THE MANAGEMENT OWNERS..............10
8.1 Representations, Warranties and Covenants.......................11
8.2 Delivery........................................................11
8.3 Purchase Agreement Closing......................................11
SECTION 9. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED.....................11
9.1 Termination.....................................................11
9.2 Effect of Termination...........................................11
9.3 Right to Proceed................................................12
SECTION 10. BREACHES OF REPRESENTATIONS, ETC................................12
10.1 Satisfaction of Obligations.....................................12
10.2 Related Matters.................................................12
10.3 Survival of Representations, Warranties, Covenants and
Agreements....................................................13
SECTION 11. DEFINITIONS.....................................................13
11.1 Definitions.....................................................13
SECTION 12. MISCELLANEOUS...................................................16
12.1 Fees and Expenses...............................................16
12.2 Dispute Resolution..............................................17
12.3 Waivers.........................................................17
12.4 Governing Law...................................................17
12.5 Notices.........................................................17
12.6 Entire Agreement................................................18
12.7 Assignability; Binding Effect...................................19
12.8 Captions and Gender.............................................19
12.9 Execution in Counterparts.......................................19
12.10 Amendments......................................................19
12.11 Publicity and Disclosures.......................................19
12.12 Consent to Jurisdiction.........................................19
12.13 Consent.........................................................20
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SCHEDULES
Schedule 1.2 Allocation of Management Owner Purchase Price
Schedule 2.2 LLC Interests Owned by the Management Owners
Schedule 2.5(a) Certain Agreements
Schedule 2.5(b) Certain Relationships
Schedule 3.7 Certain Agreements
EXHIBITS
Exhibit 7.2(b) Form of Release
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MANAGEMENT OWNER PURCHASE AGREEMENT
This MANAGEMENT OWNER PURCHASE AGREEMENT (the "Agreement") is
entered into as of August 28, 2001, by and among Affiliated Managers Group,
Inc., a Delaware corporation ("AMG"), Xxxxxxx X'Xxxxxx ("WD"), Xxxx Xxxxxx
("JR"), Xxxx Xxxx ("JF" and, collectively with WD, JR and Xxxxxx Xxxxxx ("FF"),
the "Majority Management Owners") and each of the other Management Owners
identified as such on the signature pages hereto (the Majority Management Owners
and such other identified Management Owners, collectively, the "Management
Owners").
W I T N E S S E T H:
WHEREAS, Xxxxxx Associates, LLC, a Delaware limited liability
company (the "WY LLC"), is engaged in the business of providing Investment
Management Services;
WHEREAS, all of the issued and outstanding membership interests in
the WY LLC (the "WY LLC Interests") are owned of record and beneficially by
Xxxxxx Associates, Inc., a Delaware corporation ("FAI"), NCCF Support, Inc., a
Georgia non-profit corporation ("NCCF"), The Community Foundation of Xxxxxxx
Hole, a Wyoming non-profit corporation ("CFJH" and, collectively with NCCF, the
"Charities"), and the Management Owners (other than FF);
WHEREAS, on the terms and subject to the conditions set forth in
that certain Purchase Agreement of even date herewith (the "Purchase Agreement")
among AMG, FAI, Xxxxxx Associates of Delaware, Inc., a Delaware corporation and
an Affiliate of FAI ("FAID" and, collectively with FAI, the "Friess Companies"),
the stockholders of FAI and FAID and the Charities, AMG has agreed (among other
things) to cause FA (WY) Acquisition Company, Inc., a Delaware corporation and a
wholly owned subsidiary of AMG ("FA (WY) Acquisition"), to purchase from FAI and
each of the Charities certain of the WY LLC Interests owned by FAI and all of
the WY LLC Interests owned by the Charities;
WHEREAS, on the terms and subject to the conditions set forth
herein, AMG has agreed to cause FA (WY) Acquisition to purchase from each
Management Owner (other than FF) at the Closing (as defined herein) all of the
WY LLC Interests owned by such Management Owner;
WHEREAS, as a condition precedent to AMG's willingness to enter into
this Agreement and the Purchase Agreement and to consummate the transactions
contemplated hereby and thereby, and as a material component of the sale of the
WY LLC's business provided for herein and therein, (i) each of the Majority
Management Owners has entered into an Employment Agreement with either Xxxxxx
Associates of Delaware, LLC, a Delaware limited liability company and an
Affiliate of the WY LLC (the "DE LLC" and, collectively with the WY LLC, the
"LLCs"), and FA (DE) Acquisition Company, LLC, a Delaware limited liability
company and a wholly owned subsidiary of AMG ("FA (DE) Acquisition"), or the WY
LLC and FA (WY) Acquisition, in each case dated as of the date hereof
(collectively, the "Employment Agreements"), and (ii) each of the other
Management Owners has entered into a Non-Solicitation/Non-Disclosure Agreement
with either the DE LLC and FA (DE) Acquisition, or the
WY LLC and FA (WY) Acquisition, in each case dated as of the date hereof
(collectively, the "Non-Solicitation Agreements"); and
WHEREAS, (i) FAID, FA (DE) Acquisition and each of the Management
Owners has executed and delivered the Amended and Restated Limited Liability
Company Agreement of the DE LLC (the "Restated DE LLC Agreement"), and (ii) FAI,
FA (WY) Acquisition and each of the Management Owners has executed and delivered
the Amended and Restated Limited Liability Company Agreement of the WY LLC (the
"Restated WY LLC Agreement" and, collectively with the Restated DE LLC
Agreement, the "Restated LLC Agreements"), each such agreement to become
effective as of (and subject to) the Closing.
NOW, THEREFORE, in order to consummate the transactions contemplated
hereby, and in consideration of the mutual agreements set forth herein and other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. PURCHASE OF THE MANAGEMENT OWNERS' WY LLC INTERESTS.
1.1 GENERAL. Upon the terms contained in this Agreement (including
without limitation the conditions contained in Section 7), and on the basis of
the representations, warranties and covenants herein set forth, AMG hereby
agrees to cause FA (WY) Acquisition to purchase from each Management Owner
(other than FF), and each Management Owner (other than FF) hereby agrees to sell
to FA (WY) Acquisition, at the Closing all of the WY LLC Interests owned by such
Management Owner (collectively, the "Management Owner Purchase").
1.2 PURCHASE PRICE; DELIVERY OF LLC INTERESTS.
(a) Upon the terms contained in this Agreement (including without
limitation the conditions contained in Section 7), at the Closing AMG shall
cause FA (WY) Acquisition to deliver by wire transfer to each Management Owner
(other than FF), at bank accounts to be designated in writing by the WY LLC
(which shall obtain such information from the Management Owners) to AMG at least
two (2) business days prior to the Closing Date, the amount set forth opposite
such Management Owner's name on SCHEDULE 1.2 hereto, in immediately available
funds, in full consideration for the sale to AMG of the WY LLC Interests owned
by such Management Owner.
(b) At the Closing, upon the terms contained in this Agreement
(including without limitation the conditions contained in Section 8), each
Management Owner (other than FF) shall deliver to FA (WY) Acquisition all of the
WY LLC Interests owned by such Management Owner, including any certificates
representing such interests duly endorsed for transfer to FA (WY) Acquisition
or, if there are no certificates representing such interests, other customary
written evidence of transfer, in either case in form and substance reasonably
satisfactory to AMG, together with such other customary transfer documentation
as AMG has reasonably requested.
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(c) The Management Owner Purchase Price shall be allocated among the
assets and liabilities of the WY LLC in a manner consistent with the allocation
of the purchase price paid under the Purchase Agreement in respect of the
purchase of WY LLC Interests thereunder (the "Management Owner Purchase Price
Allocation"). AMG and each of the Management Owners (other than FF) agrees to
file all tax returns and make all other necessary filings consistent with the
Management Owner Purchase Price Allocation.
1.3 TIME AND PLACE OF CLOSING. The closing of the Management Owner
Purchase (the "Closing") shall be held at the same place as, and immediately
prior to the occurrence (if any) of, the closing of the purchase and sale
provided for in Section 1 of the Purchase Agreement (the "Purchase Agreement
Closing").
1.4 FURTHER ASSURANCES. The Management Owners shall, from time to
time after the Closing, at the reasonable request of AMG and without further
consideration, execute and deliver further customary instruments of transfer and
assignment and take such other customary actions as AMG reasonably requests to
fully implement the provisions of this Agreement.
1.5 TRANSFER TAXES. All transfer taxes and similar fees and duties
under applicable law incurred in connection with the Management Owner Purchase
will be borne and paid by FA (WY) Acquisition, and FA (WY) Acquisition shall
promptly reimburse the Management Owners for any such tax, fee or duty which any
of them is required to pay under applicable law.
1.6 RESTATED LLC AGREEMENTS. The parties hereto agree that each of
the Restated LLC Agreements shall become effective as of the Purchase Agreement
Closing.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE MANAGEMENT OWNERS.
2.1 MAKING OF REPRESENTATIONS AND WARRANTIES. As a material
inducement to AMG to enter into this Agreement and consummate the transactions
contemplated hereby, each of the Majority Management Owners (other than FF) and
the other Management Owners hereby severally makes to AMG, as of the date hereof
and as of the Closing Date, the representations and warranties set forth in this
Section 2 with respect to such Management Owner. From and after the Closing,
none of the Management Owners shall have any right of indemnity or contribution
from either of the LLCs (or any other right against either of the LLCs) with
respect to any breach of any representation or warranty hereunder.
2.2 LLC INTERESTS OWNED BY THE MANAGEMENT OWNERS. Such Management
Owner owns of record and beneficially the WY LLC Interests (including with
respect to capital account balance and Subordinated LLC Points) set forth
opposite such Management Owner's name in SCHEDULE 2.2 hereto. Such WY LLC
Interests are, and when delivered by such Management Owner to AMG pursuant to
this Agreement will be, free and clear of any and all Claims (other than
restrictions on transfer contained in the limited liability company agreement
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of the DE LLC and the WY LLC). The LLC Interests set forth opposite such
Management Owner's name in SCHEDULE 2.2 hereto are the only membership or other
ownership interests in either the WY LLC or the DE LLC held by such Management
Owner (other than any such ownership interests created by the Restated LLC
Agreements).
2.3 AUTHORITY OF THE MANAGEMENT OWNERS. Such Management Owner has
full right, authority, power and capacity to enter into this Agreement and each
agreement, document and instrument to be executed and delivered by or on behalf
of such Management Owner pursuant to, or as contemplated by, this Agreement and
to carry out the transactions contemplated hereby and thereby. The execution,
delivery and performance by each Management Owner of this Agreement and each
such other agreement, document and instrument have been duly authorized by all
necessary action of (or on the part of) such Management Owner, and no other
action on the part of such Management Owner is required in connection therewith.
This Agreement and each agreement, document and instrument executed and
delivered by such Management Owner pursuant to, or as contemplated by, this
Agreement (including without limitation each of the Transaction Documents to
which such Management Owner is a party) constitutes, or when executed and
delivered will constitute, a valid and binding obligation of such Management
Owner, enforceable against such Management Owner in accordance with its terms,
except as enforceability may be restricted, limited or delayed by applicable
bankruptcy or similar laws affecting creditors' rights generally. The execution,
delivery and performance of this Agreement and each such other agreement,
document and instrument by such Management Owner and the consummation of the
transactions contemplated hereby and thereby:
(i) does not and will not violate any Laws and Regulations
applicable to such Management Owner or by which such Management Owner's
assets are bound, or require such Management Owner to obtain any approval,
consent or waiver of, or make any filing with, any person or entity
(governmental or otherwise) that has not been obtained or made; and
(ii) does not and will not result in a breach of, constitute a
default under, accelerate any material obligation under, or give rise to a
right of termination of, any material agreement, contract, instrument,
mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which such
Management Owner is a party or by which the property of such Management
Owner is bound or affected, or result in the creation or imposition of any
Claim on such Management Owner's interest in the WY LLC (including without
limitation the WY LLC Interests).
2.4 INVESTMENT ADVISORY REPRESENTATION. Except for his or her own
account and advice given to members of such Majority Management Owner's
Immediate Family (which such Majority Management Owner is managing without a fee
or any other remuneration), such Majority Management Owner does not provide
Investment Management Services to any Person, other than on behalf of the Xxxxxx
Companies or the WY LLC pursuant to an investment advisory agreement between one
of the Xxxxxx Companies or the WY LLC and a client thereof.
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2.5 AGREEMENTS.
(a) Except as set forth in SCHEDULE 2.5(a), such Majority Management
Owner is not a party to any employment, non-competition, trade secret or
confidentiality agreement, arrangement or understanding with any party other
than the Xxxxxx Companies and the LLCs. There are no agreements or arrangements
not contained herein or disclosed in a Schedule to the Purchase Agreement to
which such Majority Management Owner is a party relating to the business of
either of the Xxxxxx Companies or the LLCs or to such Majority Management
Owner's rights and obligations as a stockholder, member, director, officer or
employee of either of the Xxxxxx Companies or the LLCs.
(b) Except as set forth in SCHEDULE 2.5(b), such Majority Management
Owner does not own, directly or indirectly on an individual or joint basis, any
interest (excluding passive investments in the shares of any enterprise which
are publicly traded, PROVIDED such Majority Management Owner's holdings therein,
together with any holdings of his or her Affiliates and members of his or her
Immediate Family members, are less than five percent (5%) of the outstanding
shares of comparable interest in such entity in the aggregate) in, or serve as
an employee, independent contractor, officer, director or in another similar
capacity of, any competitor or client of the Xxxxxx Companies or the LLCs or any
other organization which has or during the past one (1) year has had a material
contract or arrangement with the Xxxxxx Companies or the LLCs.
2.6 GOOD HEALTH. Such Majority Management Owner is in good health as
of the date of this Agreement, and as of the Closing will have given true and
complete responses to all questions asked by insurance brokers and other
insurance company agents in connection with the transactions contemplated
hereby.
2.7 FINDER'S FEE. Such Management Owner has not incurred, become
liable for or otherwise entered into any contract or agreement with respect to
any broker's commission, finder's fee or similar payment relating to or in
connection with the transactions contemplated by this Agreement.
SECTION 3. COVENANTS OF THE MANAGEMENT OWNERS.
3.1 MAKING OF COVENANTS AND AGREEMENTS. Each of the Management
Owners (other than FF) hereby severally makes the covenants and agreements set
forth in this Section 3. After the Closing, none of the Management Owners shall
have any right of indemnity or contribution from either of the LLCs (or any
other right against either of the LLCs) with respect to the breach of any
covenant or agreement hereunder.
3.2 CONDUCT. Between the date of this Agreement and the Closing,
without the prior written consent of AMG no Management Owner will take any
action that would reasonably be expected to result in any of the representations
and warranties with respect to such Management Owner set forth in Section 2
becoming false or inaccurate in any material respect.
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3.3 NOTICE OF DEFAULT. Promptly upon the occurrence of, or promptly
upon a Management Owner becoming aware of the threatened occurrence of, any
event which would cause or constitute a breach or default, or would have caused
or constituted a breach or default had such event occurred or been known to such
Management Owner prior to the date hereof, of any of the representations,
warranties or covenants of such Management Owner contained in or referred to in
this Agreement, such Management Owner shall give written notice thereof to AMG
in reasonable detail, and such Management Owner shall use his or her respective
reasonable best efforts to prevent or promptly remedy the same.
3.4 CONSUMMATION OF AGREEMENT. Each of the Management Owners shall
use his or her reasonable best efforts (except to the extent a different
standard is expressly provided for under another provision of this Agreement
with respect to particular obligations) to perform and fulfill all conditions
and obligations to be performed and fulfilled under this Agreement, to the end
that the transactions contemplated by this Agreement shall be fully carried out.
3.5 COOPERATION OF THE MANAGEMENT OWNERS. Each of the Management
Owners shall cooperate with all reasonable requests of AMG and AMG's counsel and
auditors in connection with the consummation of the transactions contemplated
hereby. In addition, each of the Majority Management Owners shall (i) cooperate
fully, as and to the extent requested by AMG or AMG's counsel or auditors, in
connection with any litigation or other proceedings between AMG and a third
party (other than the other Management Owners, the Xxxxxx Companies or the LLCs)
arising in connection with the transactions contemplated hereby or by the
Purchase Agreement, and (ii) cooperate in all reasonable respects with the
Xxxxxx Companies and AMG in connection with the consummation of the transactions
contemplated by the Purchase Agreement (and the making of any filings required
in connection therewith). Each of the Management Owners shall file his or her
tax returns (and will take tax positions) in a manner consistent with the
provisions relating to the filing of Tax Returns set forth in the Purchase
Agreement.
3.6 CONFIDENTIALITY. Each of the Management Owners agrees that,
unless and until the Closing has been consummated, such Management Owner and his
or her Affiliates, agents and representatives will hold in strict confidence,
and will not use, any confidential or proprietary data or information obtained
from AMG with respect to its business or financial condition except for the
purpose of evaluating, negotiating and completing the transaction contemplated
hereby. Information generally known in AMG's industry or which has been
disclosed to the Management Owners by third parties which have a right to do so
shall not be deemed confidential or proprietary information for purposes of this
Agreement. If the transactions contemplated by this Agreement are not
consummated, each of the Management Owners will return, and cause his or her
respective Affiliates' agents and representatives to return, to AMG (or certify
that they have destroyed) all copies of such data and information, including but
not limited to financial information, customer lists, business and corporate
records, worksheets, test reports, tax returns, lists, memoranda, and other
documents prepared by or made available by AMG to such Management Owner (and/or
to his or her respective Affiliates, agents and representatives) in connection
with the transactions contemplated hereby.
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3.7 LLC INTERESTS; OTHER AGREEMENTS. Between the date of this
Agreement and the Closing, none of the Management Owners will sell, assign,
pledge, subject to a Claim or otherwise transfer or restrict such Management
Owner's WY LLC Interests without the prior written consent of AMG. Without the
prior written consent of AMG and except as set forth in SCHEDULE 3.7, none of
the Management Owners shall enter into any side letters or other agreements in
connection with this Agreement or the Purchase Agreement.
SECTION 4. COVENANTS OF THE MANAGEMENT OWNERS AND AMG WITH RESPECT TO CERTAIN
TAX MATTERS.
4.1 SECTION 197(f)(9). The parties hereto will use their respective
reasonable efforts to amend the structure of the transactions contemplated
hereby if necessary in order to avoid the application of the anti-churning rules
of Section 197(f)(9) of the Code (PROVIDED that no party shall be required to
agree to any changes that could materially adversely affect such party as
determined in its sole discretion).
SECTION 5. REPRESENTATIONS AND WARRANTIES OF AMG.
5.1 MAKING OF REPRESENTATIONS AND WARRANTIES. As a material
inducement to each of the Management Owners (other than FF) to enter into this
Agreement and consummate the transactions contemplated hereby, AMG hereby makes
to each of the Management Owners (other than FF), as of the date hereof and as
of the Closing Date, the representations and warranties contained in this
Section 5.
5.2 ORGANIZATION. Each of AMG and FA (WY) Acquisition is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware with full power and authority to own or lease its
assets and other properties and to conduct its business in the manner and in the
places where such assets and other properties are owned or leased or such
business is conducted by it.
5.3 AUTHORITY. AMG has full right, authority and power to enter into
this Agreement, the Purchase Agreement and each agreement, document and
instrument to be executed and delivered by AMG pursuant to or as contemplated
by, this Agreement and the Purchase Agreement and to carry out the transactions
contemplated hereby and thereby. The execution, delivery and performance by AMG
of this Agreement, the Purchase Agreement and each such other agreement,
document and instrument have been duly authorized by all necessary action of AMG
and no other action on the part of AMG is required in connection therewith. This
Agreement, the Purchase Agreement and each other agreement, document and
instrument executed and delivered by AMG pursuant to this Agreement (including
without limitation each of the Transaction Documents to which AMG is a party)
constitute, or when executed and delivered will constitute, valid and binding
obligations of AMG enforceable in accordance with their terms, except as
enforceability may be restricted, limited or delayed by applicable bankruptcy or
similar laws affecting creditors' rights generally. The execution, delivery and
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performance by AMG of this Agreement, the Purchase Agreement and each such
agreement, document and instrument and the consummation of the transactions
contemplated hereby and thereby:
(i) does not and will not violate any provision of the Certificate
of Incorporation or by-laws of AMG, each as amended to the date hereof;
(ii) does not and will not violate any Laws and Regulations
applicable to AMG or require AMG to obtain any approval, consent or waiver
of, or make any filing with, any person or entity (governmental or
otherwise) which has not been obtained or made (other than any filings
required to be made pursuant to the Exchange Act or with any stock
exchange in connection with the transactions contemplated hereby); and
(iii) does not and will not result in a breach of, constitute a
default under, accelerate any obligation under, or give rise to a right of
termination of any agreement, contract, instrument, mortgage, lien, lease,
permit, authorization, order, writ, judgment, injunction, decree,
determination or arbitration award to which AMG is a party and which is
material to the business and financial condition of AMG and its affiliated
organizations on a consolidated basis.
5.4 LITIGATION. There is no litigation or other action, suit or
proceeding pending or, to the knowledge of AMG, threatened against AMG, FA (WY)
Acquisition or, to AMG's knowledge, investigations, at law or in equity, by or
before any federal, state, municipal or other governmental department,
commission, bureau, board, agency or instrumentality, domestic or foreign
(including, without limitation, any voluntary or involuntary proceedings under
the Bankruptcy Code or any action, suit, proceeding or investigation under any
Federal or state securities law, rule or regulation) in which AMG, FA (WY)
Acquisition or any director, officer or employee of either of them is engaged or
with which either of them is threatened which would reasonably be expected
(individually or in the aggregate) to prevent the consummation by AMG of the
transactions contemplated by this Agreement, the Purchase Agreement or the other
agreements, documents and instruments contemplated hereby or thereby, or which
seeks damages from any such Person in connection with the transactions
contemplated hereby or thereby which would reasonably be expected (individually
or in the aggregate) to have a Material Adverse Effect on AMG.
5.5 ACQUISITION FOR INVESTMENT. Each of AMG and FA (WY) Acquisition
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of its purchase of the WY LLC
Interests being sold by the Management Owners hereunder. AMG represents and
warrants that each of AMG and FA (WY) Acquisition is an "accredited investor"
within the meaning of Rule 501 under the Securities Act. AMG confirms that the
Management Owners have made available to each of AMG and FA (WY) Acquisition the
opportunity to ask questions of the Management Owners, and to acquire additional
information about the business and financial condition of the Xxxxxx Companies
and the LLCs. Each of AMG and FA (WY) Acquisition is acquiring the WY LLC
Interests for investment and not with a view toward or for sale in connection
with any distribution thereof in violation of any federal or state securities or
"blue sky" law, or with any present intention of
8
distributing or selling such shares in violation of any federal or state
securities or "blue sky" law. Each of AMG and FA (WY) Acquisition understands
and agrees that the WY LLC Interests may not be sold, transferred, offered for
sale, pledged, hypothecated or otherwise disposed of without registration under
the Securities Act, except pursuant to an exemption from such registration
available under the Securities Act, and without compliance with state, local and
foreign securities laws, in each case, to the extent applicable.
5.6 FINDER'S FEE. Neither of AMG or FA (WY) Acquisition has
incurred, become liable for or otherwise entered into any contract or agreement
with respect to any broker's commission, finder's fee or similar payment
relating to or in connection with the transactions contemplated by this
Agreement.
SECTION 6. COVENANTS OF AMG.
6.1 MAKING OF COVENANTS AND AGREEMENTS. AMG hereby makes the
covenants and agreements set forth in this Section 6.
6.2 NOTICE OF DEFAULT. Promptly upon the occurrence of, or promptly
upon AMG becoming aware of the impending or threatened occurrence of, any event
which would cause or constitute a breach or default, or would have caused or
constituted a breach or default had such event occurred or been known to AMG
prior to the date hereof, of any of the representations, warranties or covenants
of AMG contained in or referred to in this Agreement or in any Schedule or
Exhibit referred to in this Agreement, AMG shall give written notice thereof to
the Management Owners.
6.3 CONSUMMATION OF AGREEMENT. AMG shall use its reasonable best
efforts to perform and fulfill all conditions and obligations to be performed
and fulfilled by it under this Agreement, to the end that the transactions
contemplated by this Agreement shall be fully carried out.
SECTION 7. CONDITIONS TO THE OBLIGATIONS OF AMG.
The obligation of AMG to consummate the transactions contemplated by
this Agreement is subject to the fulfillment (or waiver by AMG), prior to or at
the Closing, of the following conditions precedent:
7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each of the representations and warranties of the Management
Owners contained in this Agreement or, in the case of the Majority Management
Owners, in any of the Restated LLC Agreements or the Employment Agreements, in
each case shall be true and complete in all material respects (except for such
representations and warranties that are qualified by their terms as to
materiality or Material Adverse Effect, which representations and
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warranties as so qualified shall be true in all respects) as of the date of this
Agreement and at and as of the Closing; PROVIDED, HOWEVER, that the accuracy of
any representation or warranty that by its terms speaks only as of a specified
date shall be determined solely as of such date.
(b) Each of the agreements to be performed by any of the Management
Owners (other than FF) hereunder and under the other agreements, documents and
instruments contemplated hereby at or prior to the Closing shall have been duly
performed in all material respects.
(c) Each of the Management Owners (other than FF) shall have
furnished AMG with a certificate or certificates dated as of the date of the
Closing with respect to each of the foregoing.
7.2 DELIVERY. Each of the Management Owners (other than FF) shall
have executed and delivered to AMG (or shall have caused to be executed and
delivered to AMG by the appropriate Person, where applicable) the following:
(a) true and complete copies of each of the agreements, documents
and instruments contemplated hereby to which such Management Owner is a party
(including, without limitation, the Restated LLC Agreements), and all
agreements, documents, instruments and certificates delivered or to be delivered
by such Management Owner in connection therewith;
(b) a release of the LLCs from all liabilities, other than those
arising out of the transactions and agreements contemplated hereby, from each of
the Management Owners, in the form attached hereto as EXHIBIT 7.2(b).
(c) such other certificates and documents as are required hereby or
are customary and reasonably requested by AMG.
7.3 INSURANCE. AMG shall have received such evidence as it shall
deem necessary or appropriate as to the insurability of each of the Majority
Management Owners with respect to both key-man life insurance and disability
insurance policies, in such amounts as AMG shall reasonably have determined.
7.4 PURCHASE AGREEMENT CLOSING. Each of the conditions to the
Purchase Agreement Closing set forth in the Purchase Agreement shall have been
(and shall remain) satisfied or waived, and the Purchase Agreement Closing shall
be set to occur as of immediately following the Closing hereunder.
SECTION 8. CONDITIONS TO OBLIGATIONS OF THE MANAGEMENT OWNERS.
The obligation of each of the Management Owners (other than FF) to
consummate the transactions contemplated by this Agreement is subject to the
fulfillment (or
10
waiver by the Management Owners), prior to or at the Closing, of the following
conditions precedent:
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each of the representations and warranties of AMG made to the
Management Owners (other than FF) and contained in this Agreement shall be true
and correct in all material respects (except for such representations and
warranties that are qualified by their terms as to materiality, which
representations or warranties as so qualified shall be true in all respects) as
of the date of this Agreement and at and as of the Closing; PROVIDED, HOWEVER,
that the accuracy of any representation or warranty that by its terms speaks
only as of a specified date shall be determined solely as of such date.
(b) Each of the agreements with the Management Owners (other than
FF) to be performed by AMG hereunder and under the other agreements, documents
and instruments contemplated hereby at or prior to the Closing shall have been
duly performed in all material respects.
(c) AMG shall have furnished the Management Owners (other than FF)
with a certificate dated as of the date of the Closing to the foregoing effect.
8.2 DELIVERY. AMG shall have executed and delivered to the
Management Owners (other than FF) true and complete copies of each of the
agreements, documents and instruments contemplated hereby to which AMG and any
Management Owner (other than FF) is a party, and all agreements, documents,
instruments and certificates delivered or to be delivered by AMG to such
Management Owner in connection therewith.
8.3 PURCHASE AGREEMENT CLOSING. Each of the conditions to the
Purchase Agreement Closing shall have been (and shall remain) satisfied or
waived, and the Purchase Agreement Closing shall be set to occur as of
immediately following the Closing hereunder.
SECTION 9. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED.
9.1 TERMINATION. This Agreement shall automatically terminate upon a
termination of the Purchase Agreement pursuant Section 11 thereof occurring at
any time prior to the Closing (and, for the avoidance of doubt, no party hereto
otherwise shall have the right to terminate this Agreement except upon the
unanimous written agreement of all parties hereto).
9.2 EFFECT OF TERMINATION. All obligations of the parties hereunder
shall cease upon any termination pursuant to Section 9.1; PROVIDED, HOWEVER,
that (a) the provisions of this Section 9, Section 3.6 and the provisions of
Section 12 hereof shall survive any termination of this Agreement; and (b)
nothing herein shall relieve any party from any liability for (i) any material
breach of a representation or warranty of such party contained herein (except
for such representations and warranties that are qualified by their terms as to
materiality or Material Adverse Effect, with respect to which a party shall be
liable for any breach) as of the date such
11
representation or warranty was made, PROVIDED that no party shall have liability
for any material breach of representation or warranty unless such party knew or
should have known of such breach at the time such representation or warranty was
made, or (ii) any failure to perform and satisfy in all material respects all of
the agreements and covenants of such party to be performed hereunder and under
the agreements, documents and instruments contemplated hereby at or prior to the
Closing.
9.3 RIGHT TO PROCEED. Anything in this Agreement to the contrary
notwithstanding, (i) if any of the conditions specified in Section 7 hereof have
not been satisfied, AMG shall have the right to elect to proceed with the
transactions contemplated hereby without waiving any of its rights hereunder,
and (ii) if any of the conditions specified in Section 8 hereof have not been
satisfied, any Management Owner shall have the right to elect to proceed with
the transactions contemplated hereby without waiving any of his or her rights
hereunder.
SECTION 10. BREACHES OF REPRESENTATIONS, ETC.
10.1 SATISFACTION OF OBLIGATIONS. In order to satisfy any liability
of a Management Owner (other than FF) for damages, losses, costs and expenses of
AMG and its subsidiaries and Affiliates (and their respective officers,
directors, members, employees, agents and representatives) resulting from,
arising out of or based upon a breach of any representation, warranty, covenant
or agreement of such Management Owner under this Agreement or under any
agreement, document or instrument contemplated hereby, AMG shall have the right
(in addition to collecting directly from such Management Owner) to set off its
claims against (a) any and all amounts of interest and principal under any
promissory note issued to such Management Owner pursuant to the provisions of
Section 3.11 of either of the Restated LLC Agreements (whether or not then due
and payable), and/or (b) any and all amounts to be distributed to such
Management Owner by either of the LLCs, whether or not such right of set-off is
specifically provided for in the relevant Restated LLC Agreement, and/or (c) any
and all amounts owed or which become owed to such Management Owner or any
Permitted Transferee (as such term is defined in the relevant Restated LLC
Agreement) of such Management Owner by the Manager Member (as such term is
defined in the Restated LLC Agreements) or any of its Affiliates pursuant to the
provisions of Sections 3.11 or 7.1 of either of the Restated LLC Agreements;
PROVIDED, HOWEVER, that the offset right described in clause (b) of this
sentence shall only be available to AMG from and after the rendering of a
settlement, judgment or arbitral decision establishing such liability of such
Management Owner.
10.2 RELATED MATTERS. Each of the Management Owners (other than FF)
and AMG agrees to treat any payment made by such Management Owner in respect of
a liability described in Section 10.1 above (or any such payment that would have
been made but for the operation of any offset provision contained in this
Agreement or one of the Restated LLC Agreements) as an adjustment to the portion
of the Management Owner Purchase Price paid to such Management Owner for
federal, state, local and foreign income tax purposes.
12
10.3 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. Each of the representations, warranties, covenants and agreements
contained herein or in any schedule, exhibit or certificate delivered by any
party to any other parties incident to the transactions contemplated hereby are
material and shall be deemed to have been relied upon by the other parties. Each
of the representations and warranties contained herein or in any schedule,
exhibit or certificate delivered by any party to any other parties incident to
the transactions contemplated hereby shall survive the Closing until the second
anniversary of the date of the Closing, except for the representations and
warranties made in Sections 2.2, 2.3, 2.7, 5.3 and 5.6, which shall survive
indefinitely. The expiration of any representation or warranty shall not affect
any claim asserted in writing by a party hereto prior to the date of such
expiration in the manner provided in this Section 10. All covenants and
agreements contained herein or in any schedule, exhibit or certificate delivered
by any party to any other parties incident to the transactions contemplated
hereby not fully performed prior to the Closing shall survive the Closing and
continue thereafter until fully performed (except to the extent such covenants
or agreements are by their terms to be performed solely prior to Closing and
performance thereof is waived in conjunction with the Closing). Any
investigation, audit or other examination that may have been made or may be made
at any time by or on behalf of the party to whom any such representation or
warranty is made shall not limit or diminish such representations and
warranties, and the parties may rely on the representations and warranties set
forth in this Agreement irrespective of any information obtained by them by any
investigation, audit or examination or otherwise.
SECTION 11. DEFINITIONS.
11.1 DEFINITIONS. For purposes of this Agreement and the Exhibits
and Schedules hereto, the following terms shall have the respective meanings set
forth in this Section 11.1:
"AFFILIATE" shall mean with respect to any person or entity (herein
the "first party"), any other person or entity that directly or indirectly
controls, or is controlled by, or is under common control with, such first
party. The term "control" as used herein (including the terms "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to (a) vote twenty-five percent (25%) or more of the outstanding
voting securities of such person or entity, or (b) otherwise direct the
management or policies of such person or entity by contract or otherwise.
"AGREEMENT" shall have the meaning specified in the preamble hereto.
"AMG" shall have the meaning specified in the preamble hereto.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code
entitled "Bankruptcy" as the same may be amended, modified, succeeded or
replaced, from time to time.
"CFJH" shall have the meaning specified in the recitals hereto.
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"CHARITIES" shall have the meaning specified in the recitals hereto.
"CLAIMS" shall mean any restrictions, liens, claims, charges,
security interests, assignments, mortgages, deposit arrangements, pledges or
encumbrances of any kind or nature whatsoever, excluding restrictions on
transferability imposed by federal and state securities laws.
"CLOSING" shall have the meaning specified in Section 1.3 hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any successor code thereto. For purposes of this Agreement,
all references to Sections of the Code shall include any predecessor provisions
to such Sections and any similar provisions of federal, state, local or foreign
law.
"DE LLC" shall have the meaning specified in the recitals hereto.
"EMPLOYMENT AGREEMENTS" shall have the meaning specified in the
recitals hereto.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor to such Act.
"FA (DE) ACQUISITION" shall have the meaning specified in the
recitals hereto.
"FA (WY) ACQUISITION" shall have the meaning specified in the
recitals hereto.
"FAI" shall have the meaning specified in the recitals hereto.
"FAID" shall have the meaning specified in the recitals hereto.
"FF" shall have the meaning specified in the preamble hereto.
"XXXXXX COMPANIES" shall have the meaning specified in the recitals
hereto.
"IMMEDIATE FAMILY" shall mean, with respect to any natural person,
(a) such person's spouse, parents, grandparents, children, grandchildren and
siblings and (b) such person's former spouse(s) and current spouses of such
person's children, grandchildren and siblings and (c) estates, trusts,
partnerships and other entities of which substantially all of the interest is
held directly or indirectly by the foregoing.
"INVESTMENT ADVISERS ACT" shall mean the Investment Advisers Act of
1940, as the same may be amended from time to time, and any successor to such
act.
"INVESTMENT MANAGEMENT SERVICES" shall mean any services which
involve (a) the management of an investment account or fund (or portions thereof
or a group of investment accounts or funds) for compensation, (b) the giving of
advice with respect to the investment and/or reinvestment of assets or funds (or
any group of assets or funds) for compensation or (c) otherwise acting as an
"investment adviser" within the meaning of the Investment Advisers Act
14
of 1940, (as the same may be amended from time to time, and any successor to
such act), and performing activities related or incidental thereto.
"JF" shall have the meaning specified in the preamble hereto.
"JR" shall have the meaning specified in the preamble hereto.
"LAWS AND REGULATIONS" shall mean, collectively, all laws and
governmental rules and regulations, domestic or foreign, including, without
limitation, the Investment Advisers Act of 1940, the Securities Exchange Act of
1934, the Investment Company Act of 1940, the Securities Act of 1933 and the
regulations promulgated under each of the foregoing, all laws regulating,
relating to or imposing liability or standards of conduct concerning protection
of human health or the environment, the rules and regulations of self-regulatory
organizations including, without limitation, the National Association of
Securities Dealers, Inc., and each applicable exchange (as defined under the
Securities Exchange Act of 1934); and all other foreign, federal or state
securities laws and regulations applicable to the business or affairs or
properties or assets of either of the Xxxxxx Companies or the LLCs or any
Management Owner.
"LLCS" shall have the meaning specified in the recitals hereto.
"MAJORITY MANAGEMENT OWNERS" shall have the meaning specified in the
preamble hereto.
"MANAGEMENT OWNERS" shall have the meaning specified in the preamble
hereto.
"MANAGEMENT OWNER PURCHASE" shall have the meaning specified in
Section 1.1 hereof.
"MANAGEMENT OWNER PURCHASE PRICE" shall mean the sum of the amounts
paid to the Management Owners (other than FF) at the Closing pursuant to Section
1.2(a) hereof.
"MANAGEMENT OWNER PURCHASE PRICE ALLOCATION" shall have the meaning
specified in Section 1.2(c) hereof.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to a Person, a
material adverse effect on the condition (financial or otherwise), properties,
assets, liabilities, business, operations, results of operations or prospects of
such Person and its subsidiaries, taken as a whole (and in the case of a
"Material Adverse Effect on the Xxxxxx Companies" or a "Material Adverse Effect
on the LLCs", shall mean the Xxxxxx Companies or the LLCs, as applicable, in
either case taken together as a whole).
"NCCF" shall have the meaning specified in the recitals hereto.
"NON-SOLICITATION AGREEMENTS" shall have the meaning specified in
the recitals hereto.
15
"PERSON" shall mean any individual, partnership (general or
limited), corporation, limited liability company, limited liability partnership,
association, trust, joint venture, unincorporated organization, and any
government, governmental department or agency or political subdivision thereof.
"PURCHASE AGREEMENT" shall have the meaning specified in the
recitals hereto.
"PURCHASE AGREEMENT CLOSING" shall have the meaning specified in
Section 1.3 hereof.
"RESTATED DE LLC AGREEMENT" shall have the meaning specified in the
recitals hereto.
"RESTATED LLC AGREEMENTS" shall have the meaning specified in the
recitals hereto.
"RESTATED WY LLC AGREEMENT" shall have the meaning specified in the
recitals hereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as the same
may be amended from time to time, and any successor to such act.
"TRANSACTION DOCUMENTS" shall mean, collectively, this Agreement and
each of the other agreements, documents, instruments, certificates, exhibits and
schedules delivered by any of the Xxxxxx Companies, the LLCs, the Charities, the
holders of capital stock in the Xxxxxx Companies or the Management Owners
pursuant to or as contemplated by this Agreement (including without limitation
the Restated LLC Agreements, the Employment Agreements and the Non-Solicitation
Agreements).
"WD" shall have the meaning specified in the preamble hereto.
"WY LLC" shall have the meaning specified in the recitals hereto.
"WY LLC INTERESTS" shall have the meaning specified in the recitals
hereto.
SECTION 12. MISCELLANEOUS.
12.1 FEES AND EXPENSES. AMG shall pay its own expenses incident to
the negotiation and consummation of the transactions contemplated by this
Agreement and the agreements, instruments and documents contemplated hereby.
Each Management Owner (other than FF) shall pay his or her own expenses incident
to the negotiation and consummation of the transactions contemplated by this
Agreement and the agreements, instruments and documents contemplated hereby
(except to the extent otherwise expressly contemplated by Section 1.5 hereof).
16
12.2 DISPUTE RESOLUTION. All disputes arising in connection with
this Agreement shall be resolved by binding arbitration in accordance with the
applicable rules of the American Arbitration Association. The arbitration shall
be held in Wilmington, Delaware before a single arbitrator selected in
accordance with Section 12 of the American Arbitration Association Commercial
Arbitration Rules who shall have substantial business experience in the
investment advisory industry, and shall otherwise be conducted in accordance
with the American Arbitration Association Commercial Arbitration Rules. The
parties covenant that they will participate in the arbitration in good faith and
that they will share equally its costs except as otherwise provided herein. The
provisions of this Section 12.2 shall be enforceable in any court of competent
jurisdiction, and the parties shall bear their own costs in the event of any
proceeding to enforce this Agreement except as otherwise provided herein. The
arbitrator shall assess costs and expenses (including the reasonable legal fees
and expenses of the prevailing party or parties and any expenses incurred in
connection with compelling arbitration) in favor of the prevailing party or
parties against the other party or parties to such proceeding. Any party
unsuccessfully refusing to comply with an order of the arbitrators shall be
liable for costs and expenses, including attorneys' fees, incurred by the other
party in enforcing the award.
12.3 WAIVERS. Any waiver of any terms or conditions or of the breach
of any covenant, agreement, representation or warranty of this Agreement in any
one instance, shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition, covenant,
representation or warranty or any other term, condition, covenant, agreement,
representation or warranty, nor shall any failure or delay at any time or times
to enforce or require performance of any provision hereof operate as a waiver of
or affect in any manner a party's right at a later time to enforce or require
performance of such provision or of any provision hereof; PROVIDED, HOWEVER,
that no such waiver, unless it, by its own terms, explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provision
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance.
12.4 GOVERNING LAW. This Agreement shall be construed under and
governed by the laws of the State of Delaware, without applying the choice of
law or conflicts of law provisions thereof.
12.5 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, or if
sent by registered or certified mail, upon the sooner of the date on which
receipt is acknowledged or the expiration of three (3) days after deposit in
United States post office facilities properly addressed with postage prepaid.
All notices to a party will be sent to the addresses set forth below or to such
other address or person as such party may designate by notice to each other
party hereunder:
17
TO AMG: Affiliated Managers Group, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxx, Executive Vice President
Facsimile No.: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
TO ANY MANAGEMENT OWNER:
To that Management Owner at the address set forth
under such Management Owner's name on SCHEDULE 1.2
hereto.
In case of Xxxx Xxxxxx,
with a copy to: Xxxxxxxx, Xxxxxx & Finger, P.A.
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Xx.
Facsimile No.: (000) 000-0000
In each case, with a copy
to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. D'Oench
Facsimile No.: (000) 000-0000
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
12.6 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits referred to herein and the other writings specifically identified
herein or contemplated hereby, is complete, reflects the entire agreement of the
parties with respect to its subject matter, and supersedes all previous written
or oral negotiations, commitments and writings (PROVIDED that the existing
confidentiality agreement between AMG and certain of the parties hereto shall
survive until the earlier of the Closing or expiration in accordance with its
terms, at which time it shall expire). No promises, representations,
understandings, warranties and agreements have been made by any of the parties
hereto except as referred to herein or in such Schedules and Exhibits or in such
other writings; and all inducements to the making of this Agreement and the
transactions contemplated hereby which were relied upon by any party hereto have
been expressed herein or in such Schedules or Exhibits or in such other
writings.
18
12.7 ASSIGNABILITY; BINDING EFFECT. This Agreement or any of the
obligations or rights hereunder: (a) may not be assigned by AMG, without the
prior written consent of FAI (on behalf of each of the Management Owners (other
than the Majority Management Owners), and FAI shall be authorized to consent on
behalf of each of such Management Owners other than the Majority Management
Owners), other than to an entity under the control of AMG (for which consent
shall not be required), and it being further understood and agreed that AMG
shall be permitted at any time prior to the Closing (without the consent of any
other party hereto) to designate another direct or indirect subsidiary of AMG to
replace FA (WY) Acquisition for any purpose hereunder; PROVIDED that, in all
cases, no such assignment by AMG shall relieve AMG of its obligations under this
Agreement; and (b) may not be assigned by any of the Management Owners without
the prior written consent of AMG. This Agreement shall be binding upon and
enforceable by, and shall inure to the benefit of, the parties hereto and their
respective successors, heirs, executors, administrators and permitted assigns.
12.8 CAPTIONS AND GENDER. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
12.9 EXECUTION IN COUNTERPARTS. For the convenience of the parties
and to facilitate execution, this Agreement may (a) be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document, and (b) be executed by facsimile.
12.10 AMENDMENTS. This Agreement may not be amended or modified, nor
may compliance with any condition or covenant set forth herein be waived, except
by a writing duly and validly executed by AMG, each of the Majority Management
Owners (other than FF) and FAI (on behalf of each of the Management Owners other
than the Majority Management Owners); for all purposes of this Agreement, any
amendment or modification of this Agreement, or waiver of any provision hereof,
executed by FAI shall be binding upon each of the Management Owners (other than
the Majority Management Owners), and FAI shall be authorized to so bind each of
the Management Owners (other than the Majority Management Owners) thereby.
12.11 PUBLICITY AND DISCLOSURES. No press releases or public
disclosure, either written or oral, of the transactions contemplated by this
Agreement, shall be made by a party to this Agreement or any representative or
agent thereof without the prior written consent of AMG and FAI (on its own
behalf and on behalf of each of the Management Owners), which consent shall not
be unreasonably withheld, except as is otherwise required by applicable laws,
rules and regulations (including, without limitation, the Securities Act, the
Exchange Act and the rules and regulations promulgated thereunder).
12.12 CONSENT TO JURISDICTION. Each of the parties hereby consents
to personal jurisdiction, service of process and venue in the federal or state
courts of Delaware for any claim, suit or proceeding arising under this
Agreement and hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such state's courts or, to
the
19
extent permitted by law, in any federal court sitting in such state (in each
case subject to Section 12.2 hereof). Each of the parties hereby irrevocably
consents to the service of process in any such action or proceeding by the
mailing by certified mail of copies of any service or copies of the summons and
complaint and any other process to such party at the address specified in
Section 12.5 hereof. The parties agree that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit or in any other manner permitted by law, and nothing contained herein shall
affect the right of a party to service of legal process or to bring any action
or proceeding in the courts of other jurisdictions (subject to Section 12.2
hereof).
12.13 SCHEDULES AND EXHIBITS. All Exhibits and Schedules attached to
this Agreement are incorporated and shall be treated as if set forth herein.
Each Management Owner shall have the right to receive a copy of this Agreement
and the Exhibits and Schedules and Annexes attached hereto, provided that
SCHEDULE 1.2 hereto will be redacted as to all information pertaining to any
Management Owner other than the Management Owner receiving a copy of SCHEDULE
1.2, and such Management Owner shall have the right to review only that
information regarding such Management Owner's own financial information.
12.14 CONSENT. The WY LLC consents to the transfers contemplated by
this Agreement.
[END OF TEXT]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be executed as of the date set forth above by their duly authorized
representatives.
AFFILIATED MANAGERS GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. X'Xxxxxx
--------------------------------------
Xxxxxxx X. X'Xxxxxx
/s/ Xxxxxx Xxxxxxx
--------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxx X. Xxxx
--------------------------------------
Xxx X. Xxxx
/s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxxxxxxx X. Xxxx
--------------------------------------
Xxxxxxxxxxx X. Xxxx
/s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxxxx
/s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxxx
For purposes of providing the consent
contained in Section 12.14:
XXXXXX ASSOCIATES, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
