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EXHIBIT 10.65
AMENDED AND RESTATED
RELEASE AND INDEMNITY AGREEMENT
RELEASE AND INDEMNITY AGREEMENT (this "Agreement") dated as of November
3, 1997, by and among Xxxxxxxxxxx Group, Inc., a Delaware corporation
("Opgroup"), CIBC Wood Gundy Securities Corp., a New York corporation ("CIBC"),
Xxxxxxxxxxx Financial Corp., a Delaware corporation ("Opfin"), and PIMCO
Advisors L.P., a Delaware limited partnership ("PIMCO LP").
W I T N E S S E T H
WHEREAS, certain capitalized terms used herein are defined in Section 1
hereof;
WHEREAS, Opgroup, Oppenheimer Equities, Inc., a Delaware corporation and
an indirect wholly-owned subsidiary of Opgroup ("Equities"), and CIBC have
entered into a Stock Acquisition Agreement (the "CIBC Agreement"), dated as of
July 22, 1997, as amended, providing for the acquisition of all of the stock of
Xxxxxxxxxxx Holdings, Inc. a Delaware corporation and an indirect wholly-owned
subsidiary of Opgroup ("Holdings"), by CIBC from Equities (the "CIBC
Acquisition");
WHEREAS, Opgroup, Opfin, PIMCO LP and PIMCO Advisors Transitory Merger
LLC ("Transitory Sub") have entered into an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of the date hereof, providing for the merger of
Transitory Sub with and into Opgroup (the "Merger");
WHEREAS, PIMCO LP, Transitory Sub, Opgroup, Opfin and each Opgroup
Subsidiary are sometimes referred to collectively herein as the "PIMCO Group",
and CIBC, Holdings, Opco and Advantage Advisers (exclusive of the business to be
transferred to Value Advisors pursuant to the terms of the Merger Agreement, and
exclusive of the Excluded Affiliates), and the Subsidiaries of Advantage
Advisers, are sometimes referred to collectively herein as the "CIBC Group".
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WHEREAS, the CIBC Group is acquiring the Brokerage Business and the
PIMCO Group is acquiring the Money Management Business, in each case from the
same sellers;
WHEREAS, it is the intention of the parties that each of the CIBC Group
and the PIMCO Group release the other from any claims of one group against the
other attributable to the operation of the Brokerage Business and the Money
Management Business, respectively, prior to the Effective Time, and to provide
for reciprocal indemnities between the PIMCO Group and the CIBC Group for claims
by third parties attributable to the business of the other prior to the
Effective Time;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
contained herein, the parties agree as follows:
1. DEFINITIONS.
(a) General. For purposes of this Agreement, the following terms
shall have the meanings set forth below:
"Advantage Advisers" shall mean Advantage Advisers, Inc., a
Delaware corporation.
"Authorized Representative" shall mean the person appointed by
Opgroup prior to the Acquisition and such person's successor (if any), who shall
be appointed by the Managing Trustees.
"Brokerage Business" shall mean the businesses conducted by
Holdings, Opco and Advantage Advisers, or any of their respective Subsidiaries
(exclusive of the business to be transferred to Value Advisors pursuant to the
terms of the Merger Agreement).
"CIBC" shall have the meaning set forth in the preamble to this
Agreement.
"CIBC Acquisition" shall have the meaning set forth in the
recitals to this Agreement.
"Effective Time" shall have the meaning ascribed to such term in
the Merger Agreement.
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"Excluded Affiliates" shall have the meaning assigned to such
term in the CIBC Agreement.
"Indemnified Party" shall mean any Person which is seeking
indemnification from an Indemnifying Party pursuant to the provisions of this
Agreement.
"Indemnifying Party" shall mean any party hereto from which an
Indemnified Party is seeking indemnification pursuant to the provisions of this
Agreement.
"Indemnity Trust" shall have the meaning assigned thereto in the
Merger Agreement.
"Losses" shall mean any and all claims, losses, liabilities,
costs, penalties, fines and expenses (including reasonable expenses for
attorneys, accountants, consultants and experts), damages, obligations to third
parties, expenditures, proceedings, judgments, awards or demands (but not
including Tax Liabilities) that are imposed upon or otherwise incurred, suffered
or sustained by the relevant party and asserted by a third party.
"Merger" shall have the meaning set forth in the recitals to
this Agreement.
"Merger Agreement" shall have the meaning set forth in the
recitals to this Agreement.
"Merger Date" shall mean the date on which the Merger occurs.
"Money Management Business" means the business conducted by
Opgroup and its Subsidiaries prior to the Effective Time, exclusive of the
Brokerage Business.
"Opco" shall mean Xxxxxxxxxxx & Co., Inc., a Delaware
corporation.
"Opgroup" shall have the meaning set forth in the preamble to
this Agreement.
"Opgroup Subsidiary" shall have the meaning assigned thereto in
the Merger Agreement.
"Overpayment Rate" shall mean a rate of 10% per annum.
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"Person" shall mean and include any individual, partnership,
limited liability company, joint venture, corporation, association, joint stock
company, trust, unincorporated organization or similar entity.
"PIMCO LP" shall have the meaning set forth in the preamble to
this Agreement.
"Present Value Benefit" shall have the meaning set forth in the
Merger Agreement.
"Seller Trust" shall have the meaning assigned thereto in the
CIBC Agreement.
"Subsidiary" shall have the meaning assigned thereto in the
Merger Agreement.
"PIMCO" shall have the meaning set forth in the preamble to this
Agreement.
"Tax" or "Taxes" shall mean all taxes, charges, fees, imposts,
levies or other assessments, including, without limitation, all net income,
gross receipts, capital, sales, use, gains, ad valorem, value added, transfer,
franchise, profits, inventory, goods and services, capital stock, license,
withholding, payroll, employment, social security, unemployment, disability,
excise, severance, stamp, documentary stamp, occupation, property, mortgage
recording and estimated taxes, together with any interest, penalties, or
additions thereto imposed by any governmental taxing authority (domestic or
foreign).
"Tax Liabilities" shall mean all liabilities for Taxes.
"Value Advisors" shall mean Value Fund Advisors, LLC, a Delaware
limited liability company.
(b) Other Definitional Provisions.
(1) From and after the Effective Time, the term "PIMCO
Group" shall be deemed to include Value Advisors.
(2) Any terms used but not defined in this Agreement
shall have the meanings ascribed thereto in the Merger Agreement.
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(3) The words "hereof", "herein", and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
(4) The terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
2. Releases.
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(a) Release by PIMCO Group. Effective at the Effective Time, each
member of the PIMCO Group hereby releases and absolutely and forever discharges
each member of the CIBC Group and their respective shareholders, directors,
officers, employees, affiliates, agents and successors, of and from any and all
claims, demands, damages, debts, liabilities, accounts, loss of profits, loss
of goodwill, obligations, costs, expenses, actions and causes of action of
every kind and nature whatsoever, whether now known or unknown, suspected or
unsuspected, xxxxxx or inchoate, existing on or arising prior to the Effective
Time, which it has, owns or holds, or at any time [may ever have, against any
member of the CIBC Group with respect to the Brokerage Business (other than
Losses arising from claims against the PIMCO Group by third parties in
connection with the Brokerage Business).
(b) Release by CIBC Group. Effective at the Effective Time, each
member of the CIBC Group hereby releases and absolutely and forever discharges
each member of the PIMCO Group and their respective shareholders, directors,
officers, employees, affiliates, agents and successors, of and from any and all
claims, demands, damages, debts, liabilities, accounts, loss of profits, loss
of goodwill, obligations, costs, expenses, actions and causes of action of
every kind and nature whatsoever, whether now known or unknown, suspected or
unsuspected, xxxxxx or inchoate, existing on or arising prior to the Effective
Time, which it has, owns or holds, or at any time may ever have, against any
member of the PIMCO Group with respect to the Money Management Business (other
than Losses arising from claims against the CIBC Group by third parties in
connection with the Money Management Business).
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(c) Certain Restrictions. Nothing in this Section 2 shall be
deemed a release by any party of any provisions of this Agreement or the
Transition Agreement.
3. INDEMNIFICATION.
(a) Indemnification by PIMCO LP. Except as limited by Section
3(e) hereof, PIMCO LP shall indemnify and hold harmless CIBC and its
shareholders, directors, officers, employees, affiliates, agents and successors
from and against all Losses, whether arising prior to the Effective Time or
thereafter, of any member of the CIBC Group arising from the operation of the
Money Management Business prior to the Effective Time.
(b) Indemnification by CIBC. Except as limited by Section 3(e)
hereof, CIBC shall indemnify and hold harmless PIMCO LP and its shareholders,
directors, officers, employees, affiliates, agents and successors from and
against all Losses, whether arising prior to the Effective Time or thereafter of
any member of the PIMCO Group arising from the operation of the Brokerage
Business prior to the Effective Time.
(c) Payment. If the Indemnifying Party is required to indemnify
the Indemnified Party pursuant to this Section 3, the Indemnified Party shall
submit its calculations of the amount required to be paid pursuant to this
Section 3 (which shall be net of the Present Value Benefit realized or
realizable by the Indemnified Party), showing such calculations in sufficient
detail so as to permit the Indemnifying Party to understand the calculations.
Subject to the following sentence, the Indemnifying Party shall pay to the
Indemnified Party, no later than 10 days after the Indemnifying Party receives
the Indemnified Party's calculations, the amount that the Indemnifying Party is
required to pay the Indemnified Party under this Section 3. If the Indemnifying
Party disagrees with such calculations, it must notify the Indemnified Party of
its disagreement in writing within 10 days after receiving such calculations.
(d) No Duplication. No payments pursuant to this Section 3 shall
be duplicative of (i) any payments under Article X of the Merger Agreement or
vice versa or (ii) any payments under Article VIII of the CIBC Agreement or vice
versa. To the extent that, without regard to this Section
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3(d), any Person has a right to be indemnified under both this Agreement and the
Merger Agreement (or both this Agreement and the CIBC Agreement) with respect to
any Loss, such Person's indemnification right with respect to such Loss shall be
governed exclusively by this Agreement.
(e) Tax Matters Are Not Covered Hereby. Notwithstanding anything
herein to the contrary, no release or indemnification shall be provided herein
for claims with respect to Taxes and/or Tax Liabilities, which are the subject
of that certain Tax Indemnity Agreement of even date herewith.
Any payments by PIMCO LP pursuant to this Agreement shall be
considered to have been made on behalf of, and in lieu of actual contribution of
funds to, OpGroup. Any indemnification payments by CIBC pursuant to this
Agreement shall be considered to have been made to OpGroup.
4. COOPERATION; MAINTENANCE AND RETENTION OF RECORDS. From and after the
Effective Time, the members of the PIMCO Group and the CIBC Group, respectively,
shall provide any Indemnifying Party such assistance and documents as may be
reasonably requested by such party in connection with any matter that is a
subject of this Agreement, and the requesting party shall pay any reasonable
out-of-pocket expenses incurred in connection therewith.
5. PROCEEDINGS.
(a) Notice. An Indemnified Party shall promptly notify the
Indemnifying Party in writing of any communication with respect to any pending
or threatened claim in connection with a Loss (or an issue related thereto) for
which the Indemnifying Party may be responsible (an "Indemnifiable Action"). The
Indemnified Party shall include with such notification a true, correct and
complete copy of any written communication, and an accurate and complete written
summary of any oral communication, so received by it or its affiliates. The
failure of the Indemnified Party timely to forward such notification in
accordance with the immediately preceding sentence shall not relieve the
Indemnifying Party of its obligation to pay such Loss, except to the extent that
the failure timely to forward such notification materially prejudices the
ability
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of the Indemnifying Party to contest such Loss or increases the amount of such
Loss.
(b) Defense. The Indemnifying Party shall have the right, at its
option and at its own expense, to be represented by counsel of its choice, and
to defend against, negotiate, settle or otherwise deal with (collectively,
"Defend") any Indemnifiable Action which relates to any Loss indemnified against
hereunder; provided, however, that no settlement shall be made without the prior
written consent of the Indemnified Party, which consent shall not be
unreasonably withheld, and provided further, that, if the Indemnifying Party
elects not to Defend the proceeding, the Indemnified Party may Defend same, and
the Indemnifying Party shall reimburse the Indemnified Party, quarterly, upon
presentation of invoices showing payment(s), for the Indemnified Party's actual
out-of-pocket expenses (including legal expenses) incurred in connection with
such defense. An Indemnified Party may, at its option and at its sole expense,
join in the defense of any Indemnifiable Action, even if such action is already
being defended by the Indemnifying Party.
6. PAYMENTS. Any payment required by this Agreement that is not made on
or before the date provided hereunder shall bear interest after such date at the
Overpayment Rate. All payments made pursuant to this Agreement shall be made in
immediately available funds.
7. AMENDMENT. This Agreement may be amended, modified or supplemented
only by a written agreement signed by all of the parties hereto.
8. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without reference to choice
of law principles, including matters of construction, validity and performance.
9. NOTICES. Notices, requests, permissions, waivers, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand
or by telecopy or on the date of
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receipt indicated on the return receipt if mailed (registered or certified,
return receipt requested, properly addressed and postage prepaid):
If to CIBC, to:
CIBC Wood Gundy Securities Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to PIMCO LP, to:
PIMCO Advisors L.P.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Indemnity Trust or the Seller Trust, to:
The Indemnity Trust or Seller Trust
Oppenheimer Tower
World Financial Center
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx and
Xxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx Xxxx, Esq.
Facsimile: (000) 000-0000
Such names and addresses may be changed by notice given in accordance with this
Section 9.
10. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter contained herein, and
supersedes and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter.
11. HEADINGS; REFERENCES. The article, section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
13. PARTIES IN INTEREST; ASSIGNMENT; SUCCESSOR. Neither this Agreement
nor any of the rights, interest or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
14. SEVERABILITY; ENFORCEMENT. The invalidity of any portion hereof
shall not affect the validity, force or effect of the remaining portions hereof.
If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that a
court of competent jurisdiction may
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enforce such restriction to the maximum extent permitted by law, and each party
hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
15. EFFECTIVE DATE. This Agreement shall become effective upon the
occurrence of the CIBC Acquisition; provided, however, that it shall terminate
and be null and void and of no force and effect with respect to the rights and
obligations of Opgroup and PIMCO LP upon any termination of the Merger
Agreement.
16. OTHER AGREEMENTS NOT AFFECTED HEREBY. Nothing contained in this
Agreement shall be deemed to enlarge, diminish, or otherwise modify, in any way,
the rights and obligations of the parties under the Merger Agreement or the CIBC
Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement
to be executed on its behalf by its officers thereunto duly authorized, all as
of the day and year first written above.
XXXXXXXXXXX GROUP, INC.
By: [SIG]
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Name:
Title:
CIBC WOOD GUNDY SECURITIES CORP.
By: [SIG]
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Name:
Title:
PIMCO ADVISORS L.P.
By: [SIG]
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Name:
Title:
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