EXCHANGE AGREEMENT
Exhibit
2
Execution Copy
EXCHANGE
AGREEMENT (the "Agreement"), dated as of November 13, 2007, by and among
the Issuer, Och-Ziff Corp, Och-Ziff Holding, OZ Management, OZ Advisors, OZ
Advisors II and the Och-Ziff Limited Partners and Class B Shareholders from
time
to time party hereto. Defined terms used herein have the respective
meanings ascribed thereto in Section 1.1.
WHEREAS,
the parties hereto desire to provide for the exchange of certain Och-Ziff
Operating Group Units for Class A Shares (or a cash equivalent), on the terms
and subject to the conditions set forth herein;
WHEREAS,
the obligation to exchange Och-Ziff Operating Group Units for Class A Shares
(or
a cash equivalent) pursuant to Section 2.1(a)(ii) of this Agreement represents
a
several, and not a joint and several, obligation of each Och-Ziff Operating
Group Partnership (on a pro rata basis), and no Och-Ziff Operating
Group Partnership shall have any obligation or right to acquire the portion
of
Och-Ziff Operating Group Units issued by another Och-Ziff Operating Group
Partnership;
NOW,
THEREFORE, in consideration of the mutual covenants and undertakings contained
herein and for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions.
The
following definitions shall be for all purposes, unless otherwise clearly
indicated to the contrary, applied to the terms used in this
Agreement.
"A
Exchange" has the meaning set forth in Section 2.1(a)(i) of this
Agreement.
"Affiliate"
means, with respect to any Person, any other Person that, directly or
indirectly, through one or more intermediaries, Controls, is Controlled by,
or
is under common Control with, such first Person.
"Aggregate
Value" means, with respect to any Vested Och-Ziff Operating Group Units
surrendered for Exchange, an amount equal to the product of (a) the number
of
Vested Och-Ziff Operating Group Units so surrendered multiplied by (b) the
Exchange Rate, and such product further multiplied by (c) the Value of a Class
A
Share.
"Agreement"
has the meaning set forth in the preamble of this Agreement.
"Applicable
Partner Group" shall mean, with respect to any Exchanging Partner,
collectively, (i) such Exchanging Partner, (ii) any Related Trust of such
Exchanging Partner, and (iii) any Applicable Transferee of any Class B
Transferor included in clause (i) or (ii) above.
"Applicable
Transferee" shall mean, with respect to any Class B Transferor, any Class B
Transferee of such Class B Transferor and any subsequent Class B Transferee
of
such Class B Transferee (acting as Class B Transferor), other than a Class
B
Transferee identified in writing by the Class B Transferor to the Issuer and
the
Och-Ziff Operating Group Partnerships (i) as holding no Excess Interests and
a
number of Class B Shares equal to the number of Och-Ziff Operating Group Units
to be held by such Class B Transferee, in each case, immediately following
and
after giving effect to such Class B Transfer and (ii) as not constituting an
Applicable Transferee hereunder.
"B
Exchange" has the meaning set forth in Section 2.1(a)(ii) of this
Agreement.
"Blackout
Periods" has the meaning set forth in Section 2.7 of this
Agreement
"Business
Day" means any day other than a Saturday, Sunday or other day on which
commercial banks in the State of New York are authorized or required by law
or
executive order to remain closed.
"Chairman"
shall mean the Chairman of the Exchange Committee, who shall be the Chairman
of
the Partner Management Committee as determined pursuant to the applicable
Och-Ziff Operating Group Partnership Agreement from time to
time. Initially, Xxx Xxx shall serve as Chairman.
"Cash
Amount" has the meaning set forth in Section 2.1(b).
"Charity"
means any organization that is organized and operated for a purpose described
in
Section 170(c) of the Code (determined without reference to Section 170(c)(2)(A)
of the Code) and described in Sections 2055(a) and 2522 of the
Code.
"Class
A Sale" means any proposed sale of Class A Shares (A) in a Registered Sale
or (B) in a sale pursuant to an exemption from registration to a strategic
buyer
or in which Xxxxxx Xxx participates, in either case, involving 5% or more of
the
then-outstanding Class A Shares, as such Class A Sale may be indicated in any
Initial Period Exchange Notification.
"Class
A Shares" means the Class A shares representing class A limited liability
company interests in the Issuer.
"Class
B Exchange Amount" means, with respect to any Exchanging Partner, the number
of Class B Shares to be automatically cancelled in respect of any Exchange
by
such Exchanging Partner, which shall equal the number of Och-Ziff Operating
Group Units to be Exchanged by such Exchanging Partner, provided that the Class
B Exchange Amount in respect of a Ziff Exchange shall be zero.
"Class
B Shares" means the Class B shares representing class B limited liability
company interests in the Issuer.
"Class
B Shareholder" means, as of any relevant date, the record owner
of Class B Shares as reflected on the books and records of the Issuer or its
authorized agent.
2
"Class
B Transfer" means any sale, transfer, assignment, conveyance, whether
voluntary or involuntary (including by operation of law), whereby any Person
becomes the record holder of Class B Shares.
"Class
B Transferee" means any Person that, as a result of any Class B Transfer,
becomes the record holder of the Class B Shares subject to such Class B
Transfer.
"Class
B Transferor" means any Person that, as a result of any Class B Transfer, is
no longer the record holder of the Class B Shares subject to such Class B
Transfer.
"Class
C Non-Equity Interests" means the Class C non-equity interests representing
non-equity interests in each of the entities within the Och-Ziff Operating
Group.
"Closing"
has the meaning set forth in Section 2.5(a)
"Closing
Date" has the meaning set forth in Section 2.5(a).
"Closing
Price" has the meaning set forth in the definition of Value.
"Code"
means the Internal Revenue Code of 1986, as amended, and in effect from time
to
time. Any reference herein to a specific section or sections of the
Code shall be deemed to include a reference to any corresponding provision
of
any successor law.
"Commission"
means the United States Securities and Exchange Commission or any similar agency
then having jurisdiction to enforce the Securities Act of 1933, as
amended.
"Control"
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract or otherwise. For purposes of this
definition, the terms "controlling," "controlled by," and "under common control
with" have correlative meanings.
"Delay
Event" has the meaning set forth in Section 2.6(b).
"Designated
Class B Shares" has the meaning set forth in Section 2.1(e)
"Determination
Period" has the meaning set forth in Section 2.2(a).
"Established
Exchange Date" means any date on which the Exchange Committee shall
determine to permit Exchanges pursuant to this Agreement during the Initial
Period.
"Excess
Interests" has the meaning set forth in Section 2.11(a).
"Exchange"
means the exchange by an Och-Ziff Limited Partner of an Och-Ziff Operating
Group
Unit for a Class A Share (and/or the applicable Cash Amount) pursuant to Article
II of this Agreement or, as applicable, an exchange of Excess Interests as
described in Section 2.11, and, as required by the context, the term "Exchange"
shall refer collectively to all Exchanges occurring on the same Exchange
Date.
3
"Exchange
Committee" shall mean a committee consisting of the individuals that are
from time to time members of the Partner Management Committee as determined
pursuant to the applicable Och-Ziff Operating Group Partnership
Agreement. The Chairman of the Exchange Committee shall be the same
as the Chairman of the Partner Management Committee, and the Chairman of the
Exchange Committee shall have the sole and exclusive right and authority to
take
any action (including, without limitation, the selection of any date on which
an
Exchange shall be permitted and the consent to any amendment of this Agreement
pursuant to this Agreement) on behalf of the Exchange Committee;
provided, however, that if and to the extent that at any time
no Chairman of the Partner Management Committee exists and, therefore, no
Chairman of the Exchange Committee exists, any such action may be taken by
a
simple majority of the members of the Exchange Committee.
"Exchange
Date" means any Established Exchange Date or Quarterly Exchange Date, or the
date to which any such Exchange Date may be delayed pursuant to Section
2.5(a).
"Exchange
Notice" has the meaning set forth in Section 2.2(b)(i).
"Exchange
Rate" means the number of Class A Shares for which an Och-Ziff Operating
Group Unit is entitled to be exchanged. On the date of this
Agreement, the Exchange Rate shall be 1 for 1, which Exchange Rate shall be
subject to modification as provided in Section 2.8.
"Exchange
Right" means an Och-Ziff Limited Partner's right to make an
Exchange.
"Exchanging
Partner" means any Och-Ziff Limited Partner effecting an
Exchange.
"First
Person" has the meaning set forth in Section 2.11(a).
"Governmental
Entity" means any court, administrative agency, regulatory body, commission
or other governmental authority, board, bureau or instrumentality, domestic
or
foreign and any subdivision thereof.
"Initial
Period" has the meaning set forth in Section 2.2(a)(i).
"Initial
Period Exchange Notification" has the meaning set forth in Section
2.2(a)(i).
"Initial
Ziff Interest" means the Och-Ziff Operating Group Units beneficially owned
by the Ziffs as of the closing of the IPO (as reduced by the amount of any
Och-Ziff Operating Group Units purchased in connection with the exercise of
the
underwriters' option to purchase additional Class A Shares in the IPO), as
such
amount may be adjusted after the date hereof for splits, reclassifications,
recapitalizations, recombinations and/or similar events or
transactions.
“Xxxxxxx
Xxxxxxx Policy” means the Xxxxxxx Xxxxxxx Policy of the Issuer applicable to
its directors and executive officers, as such xxxxxxx xxxxxxx policy may be
amended from time to time.
4
"IPO"
means the initial offering and sale of Class A Shares to the public, as
contemplated by the Issuer's Registration Statement on Form S-1 (File No.
333-144256).
"Issuer"
means Och-Ziff Capital Management Group LLC, a limited liability company formed
under the laws of the State of Delaware, and any successor thereto.
"Issuer
Delay Notice" has the meaning set forth in Section 2.6(b).
"Issuer
Operating Agreement" means the Second Amended and Restated Limited Liability
Company Agreement of the Issuer to be dated on or prior to and in effect upon
the consummation of the IPO, as such agreement may be amended, supplemented
or
restated from time to time.
"Liens"
means any and all liens, charges, security interests, options, claims,
mortgages, pledges, proxies, voting trusts or agreements, obligations,
understandings or arrangements or other restrictions on title or transfer of
any
nature whatsoever.
"Maximum
Participation Amount" is defined in Section 2.2(a)(iii).
"New
York Courts" is defined in Section 3.9.
"Och-Ziff
Corp" means Och-Ziff Holding Corporation, a corporation formed under the
laws of the State of Delaware and the general partner of OZ Management and
OZ
Advisors, and any successor general partner thereof.
"Och-Ziff
General Partners" means, collectively, Och-Ziff Corp and Och-Ziff Holding
and any other entity from time to time serving as general partner (or
equivalent) of an Och-Ziff Operating Group Partnership.
"Och-Ziff
Holding" means Och-Ziff Holding LLC, a limited liability company formed
under the laws of the State of Delaware and the general partner of OZ Advisors
II, and any successor general partner thereof.
"Och-Ziff
Limited Partner" means each Person that is as of the date of this Agreement
or hereafter becomes a limited partner of each of the Och-Ziff Operating Group
Partnerships pursuant to the terms of the applicable Och-Ziff Operating Group
Partnership Agreement, provided, however, that for all
purposes of this Agreement with respect to any Exchange of Excess Interests,
the
First Person and the Second Person, acting in accordance with Section 2.11,
shall, collectively, be deemed to be an Och-Ziff Limited Partner.
"Och-Ziff
Operating Group Partnership Agreements" means, collectively, the Amended and
Restated Limited Partnership Agreement of OZ Management, the Amended and
Restated Limited Partnership Agreement of OZ Advisors and the Amended and
Restated Limited Partnership Agreement of OZ Advisors II, as they may each
be
amended, supplemented or restated from time to time, and any similar agreement
of any other partnership or other entity that may hereafter become an Och-Ziff
Operating Group Partnership in accordance with this Agreement, as the same
may
be amended, supplemented, or restated from time to time.
5
"Och-Ziff
Operating Group Partnerships" means, collectively, OZ Management, OZ
Advisors, and OZ Advisors II, and any other partnership or entity whose general
partner (or equivalent) is an Och-Ziff General Partner and that may hereafter
become a party to this Agreement.
"Och-Ziff
Operating Group Unit" means, collectively, a unit or units of interest
representing limited partnership interests or other similar interests in each
of
the entities within the Och-Ziff Operating Group Partnerships (including without
limitation, the class A common units in each such entity issued under
the applicable Och-Ziff Operating Group Partnership Agreement), with each unit
representing one interest in each of the Och-Ziff Operating Group Partnerships,
but excluding the Class C Non-Equity Interests.
"OZ
Advisors" means OZ Advisors LP, a limited partnership formed under the laws
of the State of Delaware, and any successor thereto.
"OZ
Advisors II" means OZ Advisors II LP, a limited partnership formed under the
laws of the State of Delaware, and any successor thereto.
"OZ
Management" means OZ Management LP, a limited partnership formed under the
laws of the State of Delaware, and any successor thereto.
"Permitted
Transferee" means any Person who is a Permitted Transferee under the
applicable Och-Ziff Operating Group Partnership Agreement.
"Person"
means an individual or a corporation, limited liability company, partnership,
joint venture, trust, estate, unincorporated organization, association
(including any group, organization, co-tenancy, plan, board, council or
committee), government (including a country, state, county, or any other
governmental or political subdivision, agency or instrumentality thereof) or
other entity (or series thereof).
"Quarterly
Exchange Date" means the date that is the later to occur of either: (1) the
second Business Day after the date on which the Issuer makes a public news
release of its quarterly earnings for the prior fiscal quarter or (2) the first
day of each fiscal quarter that directors and executive officers of the Issuer
are permitted to trade under the Xxxxxxx Xxxxxxx Policy; provided, the
Quarterly Exchange Date in respect of a Special Ziff Quarterly Exchange shall
be
the second Business Day after the date on which the Issuer makes a public news
release of its quarterly earnings for the prior fiscal quarter; and
provided, further, that there shall be no Quarterly Exchange Date prior to
the first anniversary of the closing of the IPO;
"Reallocated
Och-Ziff Operating Group Units" is defined in Section
2.2(a)(v).
"Registration
Rights Agreement" means the Registration Rights Agreements among the Issuer
and the Och-Ziff Limited Partners providing for the registration of Class A
Shares, to be entered into in connection with the IPO.
"Registered
Sale" means a sale of Class A Shares pursuant to a Demand Registration or a
Piggyback Registration (as each such term is defined in the Registration Rights
Agreement).
6
"Related
Trust" means, with respect to any individual Och-Ziff Limited Partner, any
other Och-Ziff Limited Partner that is an estate, family limited liability
company, family limited partnership of such individual Och-Ziff Limited Partner,
a trust the grantor of which is such individual Och-Ziff Limited Partner, or
any
other estate planning vehicle or family member relating to such individual
Och-Ziff Limited Partner.
"Second
Person" has the meaning set forth in Section 2.11(a).
"Special
Ziff Quarterly Exchange" has the meaning set forth in Section
2.2(a)(vi).
"Transfer
Agent" means such bank, trust company or other Person as shall be appointed
from time to time by the Issuer pursuant to the Issuer Operating Agreement
to
act as registrar and transfer agent for the Class A Shares.
"Value"
means, on any Exchange Date with respect to a Class A Share, the average of
the
daily Closing Prices for ten (10) consecutive trading days immediately preceding
the Exchange Date. The "Closing Price" on any date means the
last sale price for such Class A Shares, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, for such Class A Shares, in either case, as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if such Class
A
Shares are not listed or admitted to trading on the New York Stock Exchange,
as
reported on the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which
such
Class A Shares are listed or admitted to trading or, if such Class A Shares
are
not listed or admitted to trading on any national securities exchange, the
last
quoted price, or if not so quoted, the average of the high bid and low asked
prices in the principal automated quotation system that may then be in use
or,
if such Class A Shares are not quoted by any such organization, the average
of
the closing bid and asked prices as furnished by a professional market maker
making a market in such Class A Shares selected by the Board of Directors of
the
Issuer or, in the event that no trading price is available for such Class A
Shares, the fair market value of the Class A Shares, as determined in good
faith
by the Board of Directors of the Issuer.
"Vested
Och-Ziff Operating Group Unit" means an Och-Ziff Operating Group Unit which
is not subject to any remaining conditions on vesting or any risk of forfeiture
pursuant to the applicable Och-Ziff Operating Group Partnership
Agreement.
"Ziff
Exchange" means an Exchange of all or any portion of the Initial Ziff
Interest.
"Ziffs"
means, collectively, Ziff Investors Partnership, X.X. XX and Ziff Investors
Partnership, L.P. IIA.
"Ziffs
Quarterly Exchange Limit" means, as of any relevant Quarterly Exchange Date,
the number of Vested Och-Ziff Operating Group Units equal to the lesser of
(a)
the number of Vested Och-Ziff Operating Group Units, the Exchange of which
on
such Quarterly Exchange Date would require the delivery of a number of Class
A
Shares equal to three and three-tenths percent (3.3%) of the then issued and
outstanding Class A Shares (without giving effect to such
7
proposed
Exchange) or the applicable Cash Amount as provided herein and (b) 5% of
the
Initial Ziff Interest.
ARTICLE
II
EXCHANGE
OF OCH-ZIFF OPERATING GROUP UNITS
Section
2.1 Exchange
of Och-Ziff Operating Group Units.
(a) Subject
to adjustment as provided in this Article II, to the provisions of the Och-Ziff
Operating Group Partnership Agreements and the Issuer Operating Agreement and
to
the other provisions of this Agreement, each Och-Ziff Limited Partner shall
be
entitled to exchange Vested Och-Ziff Operating Group Units held by such Och-Ziff
Limited Partner on any Established Exchange Date or, as applicable, Quarterly
Exchange Date as follows:
(i) For
the purpose of making a gratuitous transfer to any Charity, an Och-Ziff Limited
Partner may surrender Vested Och-Ziff Operating Group Units to the Issuer in
exchange for the delivery by the Issuer of a number of Class A Shares equal
to
the product of the number of Vested Och-Ziff Operating Group Units surrendered
multiplied by the Exchange Rate (such exchange, an "A Exchange");
or
(ii) Subject
to paragraph (b) below, an Och-Ziff Limited Partner may surrender Vested
Och-Ziff Operating Group Units to the Och-Ziff Operating Group Partnerships
in
exchange for the delivery by the Och-Ziff Operating Group Partnerships of a
number of Class A Shares equal to the product of such number of Vested Och-Ziff
Operating Group Units surrendered multiplied by the Exchange Rate (such
exchange, a "B Exchange");
(b) Notwithstanding
the provisions of Section 2.1(a)(ii), the Board of Directors of the Issuer
may,
in its sole and absolute discretion, elect to cause the Och-Ziff Operating
Group
Partnerships to acquire some or all of the Vested Och-Ziff Operating Group
Units
surrendered for Exchange for cash (the "Cash Exchange," and the number of
such Vested Och-Ziff Operating Group Units to be so acquired for cash, expressed
as a percentage of the total number of such Vested Och-Ziff Operating Group
Units surrendered for Exchange, the "Applicable
Percentage"). The amount of cash to be paid for the Cash Exchange
(the "Cash Amount") shall equal the Aggregate Value of such surrendered
Vested Och-Ziff Operating Group Units multiplied by the Applicable
Percentage. If the Board of Directors of the Issuer chooses to cause
the Och-Ziff Operating Group Partnerships to acquire some or all of the
surrendered Vested Och-Ziff Operating Group Units pursuant to this Section
2.1(b), the Och-Ziff Operating Group Partnerships shall give written notice
thereof to such exchanging Och-Ziff Limited Partner on or before the close
of
business three days prior to Closing, and the number of Class A Shares to be
delivered pursuant to Section 2.1(a)(ii) hereof shall be correspondingly
reduced.
(c) On
the date Vested Och-Ziff Operating Group Units are surrendered for exchange,
all
rights of the exchanging Och-Ziff Limited Partner as holder of such Vested
8
Och-Ziff
Operating Group Units, and the Designated Class B Shares shall be automatically
cancelled as provided in Section 2.1(e), and such exchanging Och-Ziff Limited
Partner shall be treated for all purposes as having become the Record Holder
(as
defined in the Issuer Operating Agreement) of the Class A Shares issued in
exchange for such Och-Ziff Operating Group Units and shall be admitted as
a
Member (as defined in the Issuer Operating Agreement) of the Issuer in
accordance and upon compliance with Section 3.1 of the Issuer Operating
Agreement.
(d) For
the avoidance of doubt, any Exchange shall be subject to the provisions of
the Och-Ziff Operating Group Partnership Agreements including applicable
vesting provisions, minimum retained ownership requirements and transfer
restrictions.
(e) In
the case of any Exchange, the Designated Class B Shares shall be automatically
cancelled on the books and records of the Issuer and such Designated Class
B
Shares shall have no further rights or privileges and shall no longer be deemed
to be outstanding limited liability company interests of the Issuer for any
purpose from and after the Exchange Date. The term "Designated
Class B Shares" means a number of Class B Shares equal to the Class B
Exchange Amount identified and determined as follows:
(i) If
the Exchanging Partner is a Class B Shareholder that, immediately prior to
such
Exchange, is the record owner of a number of Class B Shares at least equal
to
the Class B Exchange Amount, the portion of such Class B Shares equal to
the Class B Exchange Amount shall constitute the Designated Class B
Shares;
(ii) If
the Exchanging Partner is a Class B Shareholder that, immediately prior to
such
Exchange, is the record owner of a number of Class B Shares that is less than
the Class B Exchange Amount, all of such Class B Shares, together with
other Class B Shares held by such Exchanging Partner's Applicable Partner Group
in an amount equal to the difference between the Class B Exchange Amount and
the
number of Class B Shares held by such Exchanging Partner shall constitute the
Designated Class B Shares;
(iii) If
the Exchanging Partner is not a Class B Shareholder immediately prior to such
Exchange, then Class B Shares held by such Exchanging Partner's Applicable
Partner Group in an amount equal to the Class B Exchange Amount shall constitute
the Designated Class B Shares.
(iv) Any
Class B Shares held by an Exchanging Partner's Applicable Partner Group that
constitute Designated Class B Shares as determined pursuant to clause (ii)
or
(iii) of this Section 2.1(e) shall be cancelled in the applicable Exchange
on a pro rata basis among all members of the Applicable Partner Group, based
on
the number of Class B Shares held of record by each Class B
Shareholder included in such Applicable Partner Group.
Section
2.2 Exchange
Procedures.
(a)
9
(i) During
the period commencing with the date of the IPO and continuing through the fifth
anniversary thereof (the "Initial Period"), and except as provided in
paragraphs (vi) below, no Och-Ziff Limited Partner shall be entitled to
effect an Exchange at any time, other than as permitted by the Exchange
Committee. In the event that the Exchange Committee determines to
permit an Exchange by the Och-Ziff Limited Partners pursuant to this Agreement
(or is required to permit an Exchange pursuant paragraph (v) below), the
Exchange Committee shall provide written notice thereof (an "Initial Period
Exchange Notification") to each Och-Ziff Limited
Partner that sets forth, as and if applicable, the applicable Established
Exchange Date, the Maximum Participation Amount, the aggregate number of
Reallocated Och-Ziff Group Units, and whether such Exchange relates to a
proposed Class A Sale. Any Initial Period Exchange Notification shall
be delivered at least 20 Business Days prior to any such Established Exchange
Date, unless the Issuer consents to a shorter period. An Established
Exchange Date must be a Business Day on which directors and executive officers
of the Issuer are permitted to trade under the Xxxxxxx Xxxxxxx
Policy.
(ii) During
the Initial Period, the Exchange Committee shall have the right to establish
any
number of Established Exchange Dates during any fiscal year, but shall have
no obligation to set any Established Exchange Dates during any given fiscal
year.
(iii) If
and to the extent the Exchange Committee determines to permit an Exchange during
the Initial Period, the Exchange Committee may establish the maximum number
of
Vested Och-Ziff Operating Group Units subject to such permitted Exchange (the
"Maximum Participation Amount"). In the case of any
permitted Exchange during the Initial Period (other than as expressly provided
pursuant to Section 2.2(a)(v) and 2.2(a)(vi)), each Och-Ziff Limited
Partner shall be entitled to Exchange in any such permitted Exchange up to
that
number of Vested Och-Ziff Operating Group Units equal to the aggregate number
of
Vested Och-Ziff Operating Group Units held by such Och-Ziff Limited Partner
multiplied by a fraction the numerator of which shall be the Maximum
Participation Amount and the denominator of which shall be the aggregate number
of Vested Och-Ziff Operating Group Units outstanding (and subject to this
Agreement). To the extent any Och-Ziff Limited Partner does not
participate up to its pro rata portion of the Maximum Participation Amount,
the
Exchange Committee may, in its sole discretion, permit the other Och-Ziff
Limited Partners to Exchange such additional Vested Och-Ziff Operating Group
Units in the same proportions as determined above.
(iv) After
the Initial Period, each Och-Ziff Limited Partner shall be entitled to Exchange,
on any Quarterly Exchange Date, Vested Och-Ziff Operating Group Units,
provided, however, an Och-Ziff Limited Partner shall be
entitled to participate in any such Exchange pursuant to this Section 2.2(a)(iv)
only if (i) the Aggregate Value of Vested Och-Ziff Operating Group Units
proposed to be Exchanged by such Och-Ziff Limited Partner together with
10
Vested
Och-Ziff Operating Group Units proposed to be Exchanged by such Och-Ziff
Limited
Partner's Related Trusts, is equal to at least $10,000,000, or (ii) such
Och-Ziff Limited Partner proposes to Exchange all of such Och-Ziff Limited
Partner's remaining Vested Och-Ziff Operating Group Units. Any
Exchange pursuant to this Section 2.2(a)(iv) shall be subject to the
conditions set forth elsewhere in this Agreement but shall not require the
consent of the Exchange Committee.
(v) Notwithstanding,
and in addition to any Exchange Dates that may be scheduled pursuant to Section
2.2(a)(i) or any Quarterly Exchange Date that may occur pursuant to 2.2(a)(iv),
in the event any Och-Ziff Limited Partner receives Och-Ziff Operating Group
Units as a result of the reallocation of such Och-Ziff Operating Group Units
pursuant to any Och-Ziff Operating Group Partnership Agreement in a
transaction that the Exchange Committee determines, in its sole and absolute
discretion, is taxable to the recipient of such Och-Ziff Operating Group
Units (such units, "Reallocated Och-Ziff Operating Group Units"), the
Exchange Committee shall promptly determine an Established Exchange Date and
deliver an Initial Period Exchange Notification pursuant to Section 2.1(a)(i)
to
permit each such Och-Ziff Limited Partner to Exchange fifty percent (50%) of
such Reallocated Och-Ziff Operating Group Units.
(vi) Notwithstanding, and
in addition to their rights to participate in any Exchange pursuant
to, Sections 2.2(a)(i),(iii) and (iv) above, the Ziffs may Exchange on any
Quarterly Exchange Date on which no other Limited Partner is entitled to
participate during the Initial Period, a number of Vested Och-Ziff Operating
Group Units that does not exceed the Ziffs Quarterly Exchange Limit (a
"Special Ziff Quarterly Exchange"); provided, that, during the
Initial Period, except by participating in a Class A Sale, the Ziffs shall
not
be permitted to sell Class A Shares received in an Exchange pursuant to this
Section 2.2(a)(vi) during any "Determination Period", which shall be the
period commencing on the date on which the Ziffs receive an Initial Period
Exchange Notification with respect to an Exchange relating to a Class A Sale
and
ending on the earlier of (i) the receipt of notice that such Class A Sale will
not occur (such notice to be delivered promptly following a determination
that such Class A Sale will not occur) and (ii) the completion of the Class
A
Sale. No individual Determination Period shall exceed 120 consecutive
days and all Determination Periods during any fiscal year shall not exceed
180
days in the aggregate; provided that the number of days in any
Determination Period during which any Class A Sale is completed shall not be
counted for purposes of calculating such 180 day limitation; and provided
further, that, in the case of a Class A Sale pursuant to a continuous
offering under Rule 415 of the Securities Act, the Determination Period shall
continue until the earliest date on which the Ziffs can no longer sell Class
A
Shares under the applicable registration statement pursuant to the terms of
the
Registration Rights Agreement. The Ziffs shall not have the
right to Exchange any portion of the Ziffs Quarterly Exchange Limit not so
Exchanged as provided above on any subsequent Quarterly Exchange
Date.
11
(b)
(i) With
respect to Exchanges under Section 2.2(a)(i) or 2.2(a)(v), upon
receipt of an Initial Period Exchange Notification, an Och-Ziff Limited Partner
may exercise its right to exchange Vested Och-Ziff Operating Group Units as
set
forth in Section 2.1(a) by providing a written notice of exchange (an
"Exchange Notice") at least ten (10) Business Days prior to the
applicable Established Exchange Date.
(ii) With
respect to Exchanges under Section 2.2(a)(iv) or Section 2.2(a)(vi), an Och-Ziff
Limited Partner may exercise the right to exchange Vested Och Ziff Operating
Group Units as set forth in Section 2.1(a) by providing an Exchange Notice
at
least twenty five (25) Business Days prior to the applicable Quarterly Exchange
Date.
(iii) An
Exchange Notice shall be delivered to the Issuer, in the case of an A
Exchange, and each of the Och-Ziff Operating Group Partnerships, in the
case of a B Exchange, (X) in the case of an A Exchange, substantially in
the form of Exhibit A hereto, and (Y) in the case of a B Exchange,
substantially in the form of Exhibit B hereto, duly executed by such
holder or such holder's duly authorized attorney in respect of the Och-Ziff
Operating Group Units to be exchanged, in each case delivered during normal
business hours at the principal executive offices of the Issuer and the Och-Ziff
General Partners.
(iv) As
promptly as practicable following the surrender of Och-Ziff Operating Group
Units upon an Exchange in the manner provided in this Article II, the Issuer,
in
the case of an A Exchange, or the Och-Ziff Operating Group Partnerships, in
the
case of a B Exchange, shall deliver or cause to be delivered at the principal
executive offices of the Issuer or at the office of the Transfer Agent the
number of Class A Shares issuable upon such Exchange, issued in the name of
such
exchanging Och-Ziff Limited Partner, and/or the applicable Cash Amount, if
any.
(c) The
Issuer, in the case of an A Exchange, or the Och-Ziff Operating Group
Partnerships, in the case of a B Exchange, may adopt reasonable
procedures for the implementation of the exchange provisions set forth in
this Article II.
Section
2.3 Concurrent
Exchanges. The
obligation with respect to a B Exchange represents a several, and not a joint
and several, obligation of the Och-Ziff Operating Group Partnerships, and no
Och-Ziff Operating Group Partnership shall have any obligation or right to
acquire the portion of one or more Och-Ziff Operating Group Units issued by
another Och-Ziff Operating Group Partnership. Notwithstanding any
other provision of this Agreement, an Exchange Notice shall not be valid unless
the Och-Ziff Limited Partner giving such Exchange Notice requests an exchange
of
an equal number of Och-Ziff Operating Group Units in each Och-Ziff Operating
Group Partnership.
12
Section
2.4 Engagement
of a Financial Advisor. Upon
receiving a valid Exchange Notice pursuant to Section 2.2(b), the Och-Ziff
Operating Group Partnerships shall collectively engage a financial advisor
of
national reputation to determine the relative value of each Och-Ziff Operating
Group Partnership as of the applicable Closing Date and the parties hereto
agree
to be bound by such financial advisor's determination, including, without
limitation, for tax reporting purposes. The Och-Ziff Operating Group
Partnerships shall be responsible for the fees and expenses of such financial
advisor. The parties agree, however, that in the event that the
Och-Ziff Operating Group Partnerships have received a valuation or an opinion
from a financial advisor of national reputation regarding such relative values
dated within 45 days prior to the applicable Closing Date, and each of the
Och-Ziff General Partners determines in its good faith judgment that no material
change has occurred, or is expected to occur prior to Closing, with respect
to
the Och-Ziff Operating Group Partnerships, the Och-Ziff Operating Group
Partnerships may elect to use such valuation or opinion for purposes of this
Section 2.4 and the parties hereto agree to be bound by such valuation or
opinion, including, without limitation, for tax reporting purposes.
Section
2.5 Closing.
(a) If
an Exchange Notice has been timely delivered pursuant to Section 2.2(b),
then the closing (the "Closing") of the transactions contemplated by
Section 2.1 shall take place on the third Business Day following the Exchange
Date (as such date may be delayed pursuant to this Section 2.5(a), the
"Closing Date") at the offices of the Issuer at 0 Xxxx 00xx
Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (or such other place as the parties to such Exchange shall
agree). If any Exchange Date would otherwise occur during a Blackout
Period (or within two Business Days of the expiration of a Blackout Period),
such Exchange Date shall be delayed until the third Business Day following
the
expiration of any such Blackout Period (or such other date as the parties to
such Exchange shall agree). If any Closing Date would otherwise occur
during a Blackout Period, such Closing Date shall be delayed until the third
Business Day following the expiration of any such Blackout
Period. Notwithstanding the foregoing, no Exchange Date
or Closing Date relating to a Special Ziff Quarterly Exchange shall
be delayed, suspended, terminated or otherwise affected by reason of the
existence of any Blackout Period.
(b) No
Exchange shall be permitted (and, if attempted, shall be void ab initio) if
the
General Partner of any Och-Ziff Operating Group Partnership determines in its
sole and absolute discretion that such an Exchange would pose a material risk
that such Och-Ziff Operating Group Partnership would be a "publicly traded
partnership" as defined in Section 7704 of the Code. The Och-Ziff General
Partners, in their sole and absolute discretion, shall be permitted to establish
revised exchange procedures they determine are necessary or appropriate to
ensure that each of the Och-Ziff Operating Group Partnerships will not be
treated as an association or publicly traded partnership taxable as a
corporation for U.S. federal income tax purposes.
(c) Closing
Conditions. The obligations of any of the parties to consummate
an Exchange pursuant to this Article II shall be subject to the conditions
that
(i) there shall be no injunction, restraining order or decree of any nature
of
any Governmental Entity that is then in effect that restrains or prohibits
the
Exchange by the applicable Och-Ziff Limited
13
Partner
of its Och-Ziff Operating Group Units for Class A Shares and (ii) no such
Exchange shall be prohibited by applicable law or
regulations.
(d) Closing
Deliveries. At each Closing, with respect to each Och-Ziff
Limited Partner that elects to participate in the Exchange:
(i) to
the extent reasonably requested by the Transfer Agent and/or
the Issuer in the case of an A Exchange, and/or any Och-Ziff
Operating Group Partnership, in the case of a B Exchange, such Och-Ziff
Limited Partner shall deliver instructions and/or other instruments of
transfer, in form and substance reasonably satisfactory to such Transfer
Agent, the Issuer and/or Och-Ziff Operating Group Partnership, as
applicable, duly executed by such Och-Ziff Limited Partner or such Och-Ziff
Limited Partner’s duly authorized attorney, and transfer tax stamps or funds
therefor, if required, representing a number of Och-Ziff Operating Group Units
to be exchanged;
(ii) such
Och-Ziff Limited Partner shall represent to the Issuer or the Och-Ziff Operating
Group Partnerships, as applicable, that all of its Och-Ziff Operating Group
Units delivered at Closing are delivered free and clear of any and
all Liens;
(iii) if
such Och-Ziff Limited Partner has delivered a number of Och-Ziff Operating
Group
Units pursuant to this Section 2.5(d) that represent a greater number of
Och-Ziff Operating Group Units than can be exchanged in such Exchange, the
relevant Och-Ziff Operating Group Partnership will deliver back the number
of
Och-Ziff Operating Group Units, as applicable, not subject to the
Exchange;
(iv) in
the case of an A Exchange, the Issuer shall deliver to the Och-Ziff Limited
Partners participating in the Exchange a number of Class A Shares equal to
the
number of Och-Ziff Operating Group Units being surrendered in such A Exchange;
and
(v) in
the case of a B Exchange, each Och-Ziff Operating Group Partnership shall
deliver the number of Class A Shares corresponding to the units of partnership
interest of such Och-Ziff Operating Group Partnership comprising part of the
Och-Ziff Operating Group Units that are the subject of such B Exchange and/or
its proportionate share of the Cash Amount (if any), in each case determined
by
reference to the relative value of such Och-Ziff Operating Group Partnership
established with respect to such Exchange pursuant to Section 2.4.
(vi) Delivery
and transfer of any securities hereunder may be effected by book-entry transfer
if and to the extent such securities are not held or issued in certificated
form.
Section
2.6 Revocability;
Expenses; Notice of Unavailability of Registration
Statement.
14
(a) An
Och-Ziff Limited Partner may revoke an Exchange Notice with respect to any
or
all of the Och-Ziff Operating Group Units set forth in such Och-Ziff Limited
Partner's Exchange Notice by delivery of a written notice
to the Och-Ziff Operating Group Partnerships at any time prior to Closing for
any reason, including as a result of a Delay Event.
(b) If
at any time after delivery of an Exchange Notice with respect to a proposed
Exchange and prior to the Closing of such Exchange, the Issuer determines that
(i) the Exchange Date will be delayed, suspended or terminated in accordance
with Section 2.5(a), (b) or (c), and/or (ii) the Class A Shares which may be
issued in connection with an Exchange relating to a Registered Sale will
not be eligible to be sold pursuant to an effective registration statement
on
the anticipated Closing Date or within two Business Days of the anticipated
Closing Date for any reason (collectively, a "Delay Event"), the Issuer
shall promptly notify each Och-Ziff Limited Partner that has delivered an
Exchange Notice in connection with such proposed Exchange of such Delay Event
(an "Issuer Delay Notice"). The Issuer Delay Notice shall
describe, in reasonable detail, the events giving rise to the Delay Event,
the
anticipated duration of such Delay Event and, if reasonably determinable in
light of the facts and circumstances surrounding such Delay Event, a revised
proposed Exchange Date and Closing Date. In the event the Issuer Delay
Notice does not include a revised proposed Exchange Date and Closing Date,
the
Issuer shall promptly notify each recipient of the revised proposed Exchange
Date and Closing Date when such dates become reasonably determinable.
Notwithstanding the foregoing, an Issuer Delay Notice to be sent to the
Ziffs may (but need not) omit certain information described above that the
Issuer determines, in its sole and absolute discretion, constitutes material
non-public information and no event that otherwise would constitute a
Delay Event under clause (ii) of the definition of Delay Event shall constitute
a Delay Event with respect to a Special Quarterly Ziff Exchange.
(c) Each
party hereto shall bear his own expenses in connection with the consummation
of
any of the transactions contemplated hereby, whether or not any such transaction
is ultimately consummated.
Section
2.7 Blackout
Periods. Notwithstanding
anything to the contrary, except with respect to a Special Ziff Quarterly
Exchange, an Och-Ziff Limited Partner shall not be entitled to effect an
Exchange, and the Issuer, in the case of an A Exchange, or the Och-Ziff General
Partners, in the case of a B Exchange, shall have the right to delay or suspend
any Exchange Date or Closing Date (whether such Exchange will result in the
issuance of Class A Shares or the payment of a Cash Amount) during any period
in
which (i) directors and executive officers of the Issuer are not permitted
to
trade under the Xxxxxxx Xxxxxxx Policy, or (ii) the Issuer is in possession
of
material non-public information and the Issuer determines in good faith that
the
disclosure of such information would not be in the best interests of the Issuer
(collectively, a "Blackout Period") A Blackout Period
described in Section 2.7(ii) shall expire on the date on which the Issuer
determines that there is no such material non-public information, provided
that
in no event shall any single Blackout Period (whether arising under Section
2.7(i), Section 2.7(ii) or any combination thereof) exceed 120 days.
Section
2.8 Splits,
Distributions and Reclassifications. The
Exchange Rate shall be adjusted accordingly if there is: (1) any subdivision
(by
split, distribution, reclassification, recapitalization or otherwise) or
combination (by reverse split, reclassification, recapitalization or otherwise)
of the Och-Ziff Operating Group Units that is not accompanied by an identical
subdivision or combination of the Class A Shares; or (2) any subdivision (by
split, distribution, reclassification, recapitalization or otherwise) or
combination (by reverse split, reclassification,
15
recapitalization
or otherwise) of the Class A Shares that is not accompanied by an identical
subdivision or combination of the Och-Ziff Operating Group Units. In the
event
of a reclassification or other similar transaction as a result of which the
Class A Shares are converted into another security, then an Och-Ziff Limited
Partner shall be entitled to receive upon exchange the amount of such security
that such Och-Ziff Limited Partner would have received if such exchange had
occurred immediately prior to the effective date of such reclassification
or
other similar transaction. Except as may be required in the immediately
preceding sentence, no adjustments in respect of distributions shall be made
upon an Exchange.
Section
2.9 Taxes. The
delivery of Class A Shares upon an Exchange shall be made without charge to
the
Och-Ziff Limited Partners for any stamp or other similar tax in respect of
such
issuance.
Section
2.10 Call
Right.
Notwithstanding any other provision of this Agreement, Och-Ziff Corp shall
have
the right (the “Call Right”), but not the obligation, to assume OZ
Advisors II's obligations to effect an Exchange at any particular Closing with
respect to Och-Ziff Operating Group Units issued by OZ Advisors
II. Och-Ziff Corp may exercise the Call Right by giving written
notice to such effect to OZ Advisors II prior to such Closing.
Section
2.11 Certain
Adjustments. Notwithstanding anything else in this
Agreement to the contrary:
(a) If
any Person (the "First Person") does not hold the same number of units of
interest representing limited partnership interests or other similar interests
(excluding Class C Non-Equity Interests) in each Och-Ziff Operating Group
Partnership (such interests in excess of such same number, the "Excess
Interests"), then, except to the extent provided in the second following
proviso, the First Person, in connection with Exchanging any of its Och-Ziff
Operating Group Units, shall first Exchange such Excess Interests,
provided, however, that, such Exchange of such Excess
Interests shall only be made in connection with and at the same time as an
Exchange of the same number of Excess Interests in other Och-Ziff Operating
Group Partnerships held by another Person (or Persons) that, but for this
proviso, would be described as a "First Person" (the "Second Person"),
such that the Exchanges of Excess Interests by such First Person and such Second
Person (or Second Persons) collectively represent Och-Ziff Operating Group
Units; provided further, that the provisions of this Section 2.11 shall
apply only to the extent that there are an equal number of such Excess Interests
in each Och-Ziff Operating Group Partnership proposed to be Exchanged as part
of
a single Exchange.
(b) The
consideration for an Exchange of Excess Interests delivered pursuant to this
Article II shall be allocated between the First Person and Second Person (or
Second Persons) in accordance with the relative value, as determined under
Section 2.4 of this Agreement of the Excess Interests Exchanged by each
such Person.
(c) For
any Exchange of Excess Interests pursuant to this Section 2.11, a form (or
forms) of Exchange Notice shall be executed by each First Person and Second
Person
16
(or
Second Persons) and shall provide, in addition to information set forth on
Exhibit A and Exhibit B hereto, as applicable, for each First Person and
Second
Person (or Second Persons), the number of Excess Interests in each
Och-Ziff Operating Group Partnership subject to such Exchange, the Designated
Class B Shares to be cancelled and the number of Och-Ziff Operating Group
Units represented by all Excess Interests held by the First Person and the
Second Person (or Second Persons) subject to such Exchange.
ARTICLE
III
GENERAL
PROVISIONS
Section
3.1 Amendment.
(a) Subject
to Section 3.1(c), no provision of this Agreement may be amended unless such
amendment is approved in writing by the Issuer, Och-Ziff Corp, Och-Ziff Holding,
and the Och-Ziff Operating Group Partnerships, and by the Och-Ziff Limited
Partners who, together with their Permitted Transferees, collectively hold
at
least two-thirds of the Och-Ziff Operating Group Units collectively held by
all
of the Och-Ziff Limited Partners and their respective Permitted Transferees;
provided, that no such amendment shall be effective if such amendment
will have a disproportionate effect on certain Och-Ziff Limited Partners unless
all such Och-Ziff Limited Partners disproportionately affected consent in
writing to such amendment and provided, further, no such
amendment shall impair or diminish the rights of the Exchange Committee, unless
approved by the Exchange Committee. No provision of this Agreement
may be waived unless such waiver is in writing and signed by the party against
whom the waiver is to be effective.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(c) The
Exchange Committee, the Issuer, Och-Ziff Corp and Och-Ziff Holding may, on
behalf of themselves and the respective partnerships they control, amend this
Agreement in writing without the approval or consent of any Och-Ziff Limited
Partner or Permitted Transferees if such amendment does not materially and
adversely affect any Och-Ziff Limited Partner’s Exchange Right.
(d) Each
Och-Ziff Limited Partner hereby expressly consents and agrees that, whenever
in
this Agreement it is specified that an action may be taken upon the affirmative
vote or written consent of less than all of the Och-Ziff Limited Partners,
such
action may be so taken upon the concurrence of less than all of the
Och-Ziff Limited Partners and each Och-Ziff Limited Partner shall be bound
by
the results of such action.
(e) This
Agreement may be amended in accordance with the provisions of this Section
3.1
without the consent of any Class B Shareholder (in its capacity as
such).
17
Section
3.2 Addresses
and Notices. All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly given
upon
receipt) by delivery in person, by courier service, by fax, by electronic mail
(delivery receipt requested) or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be as specified in
a
notice given in accordance with this Section 3.2):
|
(a)
|
If
to the Issuer, to:
|
| Xxxx 00xx Xxxxxx |
| Xxx Xxxx, Xxx Xxxx 00000 |
| Attention: Chief Legal Officer |
| Fax: (000) 000-0000 |
| Electronic Mail: Xxxxxxx.Xxxxxxxxxx@xxxxx.xxx |
| (b) | If to |
| OZ Management LP |
| OZ Advisors LP |
| OZ Advisors II LP, to: |
| c/o Och-Ziff Capital Management Group LLC |
| 0 Xxxx 00xx Xxxxxx |
| Xxx Xxxx, Xxx Xxxx, 00000 |
| Attention: Chief Legal Officer |
| Fax: (000) 000-0000 |
| Electronic Mail: Xxxxxxx.Xxxxxxxxxx@xxxxx.xxx |
| (c) | If to any Och-Ziff Limited Partner, to: |
| the address and facsimile number set forth for such Och-Ziff |
| Limited Partner in the records of the Och-Ziff Operating Group |
| Partnerships. |
| (d) | If to any Class B Shareholder, to: |
| the address and facsimile number set forth for such Class B |
| Shareholder in the records of the Issuer. |
Section
3.3 Further
Action. The
parties shall execute and deliver all documents, provide all information and
take or refrain from taking action as may be necessary or appropriate to achieve
the purposes of this Agreement.
Section
3.4 Binding
Effect. This
Agreement shall be binding upon and inure to the benefit of all of the parties
and, to the extent permitted or required by this Agreement, their successors,
executors, administrators, heirs, legal representatives and
assigns. This Agreement shall be binding on each Person who becomes a
Class B Shareholder, whether or not such Person executes and delivers a joinder
to this Agreement pursuant to Section 3.5(c).
18
Section
3.5 Partners;
Och-Ziff Operating Group Partnerships.
(a) To
the extent an Och-Ziff Limited Partner (or an applicable Permitted Transferee)
validly transfers any or all of its Och-Ziff Operating Group Units to
a Permitted Transferee of such Och-Ziff Limited Partner or to any other
Person
in a transaction not in contravention of, and in accordance with, the
applicable
Och-Ziff Operating Group Partnership Agreements, then such Person shall
have the
right to execute and deliver a joinder to this Agreement, in form and
substance
reasonably satisfactory to the Och-Ziff Operating Group
Partnerships. Upon execution of any such joinder, such Person shall
be entitled to all of the rights and shall be bound by each of the obligations
applicable to the relevant transferor hereunder.
(c) Each
Class B Shareholder hereby agrees that if such Class B Shareholder is a Class
B
Transferor, it will cause the Class B Transferee to execute a joinder to this
Agreement and become a "Class B Shareholder" for all purposes of this
Agreement, and this Agreement shall be amended to the extent necessary to
reflect such joinder.
Section
3.6 Severability. If
any term or other provision of this Agreement is held to be invalid, illegal
or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
is not affected in any manner materially adverse to any party. Upon a
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
Section
3.7 Integration. This
Agreement constitutes the entire agreement among the parties hereto pertaining
to the subject matter hereof and supersedes all prior agreements and
understandings pertaining thereto.
Section
3.8 Waiver. No
failure by any party to insist upon the strict performance of any covenant,
duty, agreement or condition of this Agreement or to exercise any right or
remedy consequent upon a breach thereof shall constitute waiver of any such
breach of any other covenant, duty, agreement or condition.
Section
3.9 Submission
to Jurisdiction; Dispute Resolution. Each
party to this Agreement hereby irrevocably and unconditionally, with respect
to
any matter or dispute arising under, or in connection with, this Agreement
and
the transactions contemplated hereby (i) submits for itself and its property
in
any legal action or proceeding relating to this Agreement, or
19
for
recognition and enforcement of any judgment in respect thereof, to the exclusive
general jurisdiction of the courts of the State of New York, the courts of
the
United States of America for the Southern District of New York, and any
appellate courts thereof (the "New York Courts") (and covenants not to
commence any legal action or proceeding in any other venue or jurisdiction);
(ii) consents that any such action or proceeding may be brought in such courts
and waives any objection that it may now or hereafter have to the venue of
any
such action or proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action will be in accordance
with the laws of the State of New York but that nothing herein shall affect
the
right to effect service of process in any other manner permitted by law; (iv)
waives any and all immunity from suit, execution, attachment or other legal
process; and (v) waives in connection with any such action any and all rights
to
a jury trial. The parties agree that any judgment of any New York
Court may be enforced in any court having jurisdiction over any party of any
of
their assets.
Section
3.10 Counterparts. This
Agreement may be executed and delivered (including by facsimile transmission)
in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to
be an
original but all of which taken together shall constitute one and the same
agreement. Copies of executed counterparts transmitted by telecopy or other
electronic transmission service shall be considered original executed
counterparts for purposes of this Section 3.10.
Section
3.11 Tax
Treatment. To
the extent this Agreement imposes obligations upon a particular Och-Ziff
Operating Group Partnership or a general partner of an Och-Ziff Operating Group
Partnership, this Agreement shall be treated as part of the relevant Och-Ziff
Operating Group Partnership Agreement as described in Section 761(c) of the
Code
and Sections 1.704-1(b)(2)(ii)(h) and 1.761-1(c) of the Treasury
Regulations. As required by the Code and the Treasury Regulations,
the parties shall report any B Exchange consummated hereunder, in the case
of OZ
Management and OZ Advisors, as a taxable sale of Och-Ziff Operating Group Units
by an Och-Ziff Limited Partner to Och-Ziff Corp, and in the case of OZ Advisors
II, as a taxable sale of Och-Ziff Operating Group Units to Och-Ziff Holding,
and
no party shall take a contrary position on any income tax return, amendment
thereof or communication with a taxing authority.
Section
3.12 Reporting
Requirements. The Issuer shall use reasonable efforts to
comply with the periodic reporting requirements under the Securities Exchange
Act of 1934, as amended, for so long as any class of the Issuer's equity
securities is listed for trading on any national securities
exchange.
Section
3.13 Applicable
Law. This
Agreement shall be governed by, and construed in accordance with, the law of
the
State of Delaware (without regard to conflicts of laws principles
thereof).
[Remainder
of Page Intentionally Left Blank]
20
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered, all as of the date first set forth above.
|
OCH-ZIFF
CAPITAL MANAGEMENT
GROUP
LLC
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Chief Financial Officer
|
|||
|
OCH-ZIFF
HOLDING CORPORATION
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Chief Financial Officer
|
|||
|
OCH-ZIFF
HOLDING LLC
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Chief Financial Officer
|
|||
|
OZ
MANAGEMENT LP
By:
Och-Ziff Holding Corporation, its
general
partner
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Chief Financial Officer
|
|||
|
OZ
ADVISORS LP
By:
Och-Ziff Holding Corporation, its
general
partner
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Chief Financial Officer
|
|||
|
OZ
ADVISORS II LP
By:
Och-Ziff Holding LLC, its general
partner
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx
|
|||
|
Title:
Chief Financial Officer
|
|||
|
/s/
Xxxxxx X. Och
|
|||
| Xxxxxx X. Och | |||
|
THE
OCH FAMILY 2007 GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
|
Name:
Xxxxxx X. Och, as attorney-in-fact
|
|||
|
for
The Och Family 2007 GRAT
|
|||
|
THE
XXXXXXXX OCH GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
|
Name:
Xxxxxx X. Och, as attorney-in-fact
|
|||
|
for
The Xxxxxxxx Och GRAT
|
|||
|
THE
XXXXX X. XXXXXXXXX GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
|
Name:
Xxxxxx X. Och, as attorney-in-fact
|
|||
|
for
The Xxxxx X. Xxxxxxxxx GRAT
|
|||
|
THE
XXXXX OCH KALVER GRAT
|
|||
|
By:
|
/
s/ Xxxxxx Xxx
|
||
|
Name:
Xxxxxx X. Och, as attorney-in-fact
|
|||
|
for
The Xxxxx Och Kalver GRAT
|
|||
|
XXXXXX
X. OCH DESCENDANTS'
TRUST
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
|
Name:
Xxxxxx X. Och, as attorney-in-fact
|
|||
|
for
the Xxxxxx X. Och Descendants'
Trust
|
|||
|
XXXX
X. OCH 1999 GRAT
|
|||
|
By:
|
/s/
Xxxxxx Xxx
|
||
|
Name:
Xxxxxx X. Och, as attorney-in-fact
|
|||
|
for
the Xxxx X. Och 1999 GRAT
|
|||
|
/s/
Xxxxx Xxxxxxxxx
|
|||
| Xxxxx Xxxxxxxxx | |||
|
THE
XXXXX XXXXXXXXX GRAT I
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
Name:
Xxxxx Xxxxxxxxx, as attorney-in-fact
|
|||
|
for
The Xxxxx Xxxxxxxxx GRAT I
|
|||
|
THE
XXXXX XXXXXXXXX GRAT II
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
Name:
Xxxxx Xxxxxxxxx, as attorney-in-fact
|
|||
|
for
The Xxxxx Xxxxxxxxx XXXX XX
|
|||
|
/s/
Xxxx Xxxxx
|
|||
| Xxxx Xxxxx | |||
|
THE
XXXX X. XXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx X. Xxxxx, as Trustee
|
|||
|
/s/
Arnaud Achache
|
|||
| Arnaud Achache | |||
|
XXXXXX
X. XXXXXXX FAMILY
TRUST
|
|||
|
By:
|
/s/
Arnaud Achache
|
||
|
Name:
Arnaud Achache as attorney in fact
|
|||
|
for
the Xxxxxx X. Xxxxxxx FamilyTrust
|
|||
|
/s/
Xxxxxxx Xxxxxxx
|
|||
|
Xxxxxxx
Xxxxxxx
|
|||
|
/s/
Xxxxx-Xxxxx Xxxxx
|
|||
| Xxxxx-Xxxxx (JK) Xxxxx | |||
|
THE
XXXXX-XXXXX XXXXX 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx-Xxxxx Xxxxx
|
||
|
Name:
Xxxxx-Xxxxx Xxxxx, as Trustee
|
|||
|
/s/
Xxxxxxx Xxxxx
|
|||
| Xxxxxxx Xxxxx | |||
|
THE
XXXXXXX XXXXX GRAT I
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx, as attorney-in-fact for
|
|||
|
The
Xxxxxxx Xxxxx GRAT I
|
|||
|
THE
XXXXXXX XXXXX XXXX XX
|
|||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Name:
Xxxx Xxxxx, as attorney-in-fact for
|
|||
|
The
Xxxxxxx Xxxxx GRAT II
|
|||
|
/s/
Xxxxxxx Xxxxx
|
|||
| Xxxxxxx Xxxxx | |||
|
/s/
Xxxxxxx Xxxxx
|
|||
| Xxxxxxx Xxxxx | |||
|
THE
XXXXXXX XXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxx
|
||
|
Name:
|
Xxxxxxx
Xxxxx, as Trustee
|
||
|
/s/
Xxxxxx X. Xxxxx
|
|||
|
Xxxxxx
Xxxxx
|
|||
|
THE
XXXXXX X. XXXXX, XX. 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Name:
|
Xxxxxx
X. Xxxxx, Xx., as Trustee
|
||
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
|||
|
THE
XXXXXXX X. XXXX, III 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxx, III, as Trustee
|
||
|
/s/
Xxx Xxxxx
|
|||
|
Xxx
Xxxxx
|
|||
|
/s/
Xxxxx X'Xxxxxx
|
|||
| Xxxxx X'Xxxxxx | |||
|
THE
XXXXX X'XXXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx X'Xxxxxx
|
||
|
Name:
|
Xxxxx
X'Xxxxxx, as Trustee
|
||
|
/s/
Xxxxxx Xxxx
|
|||
|
Xxxxxx
Xxxx
|
|||
|
THE
XXXXXX XXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxxx Xxxx
|
||
|
Name:
|
Xxxxxx
Xxxx, as Trustee
|
||
|
/s/
Xxxx Xxxx
|
|||
|
Xxxx
Xxxx
|
|||
|
THE
XXXX XXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxx Xxxx
|
||
|
Name:
|
Xxxx
Xxxx, as Trustee
|
||
|
/s/
Xxxx Xxxxxxxx
|
|||
|
Xxxx
Xxxxxxxx
|
|||
|
THE
XXXX XXXXXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxx Xxxxxxxx
|
||
|
Name:
|
Xxxx
Xxxxxxxx, as Trustee
|
||
|
/s/
Xxxxx Xxxxxxxxx
|
|||
| Xxxxx Xxxxxxxxx | |||
|
THE
XXXXX XXXXXXXXX 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxx, as Trustee
|
||
|
THE
XXXXXX XXXXXXXXXX 2007
ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxx, as Trustee
|
||
|
THE
XXXXX XXXXXXX 2007 ANNUITY
TRUST
|
|||
|
By:
|
/s/
Xxxxx Xxxxxxxxx
|
||
|
Name:
|
Xxxxx
Xxxxxxxxx, as Trustee
|
||
|
/s/
Xxxxxx Xxxxx
|
|||
| Xxxxxx Xxxxx | |||
|
ZIFF
INVESTORS PARTNERSHIP, X.X. XX
By:
Ziff Investment Management, L.L.C., its
general
partner
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
||
|
Name:
Xxxxxx X. Xxxx
|
|||
|
Title:
Co-President
|
|||
|
ZIFF
INVESTORS PARTNERSHIP, L.P. IIA
By:
Ziff Investment Management, L.L.C., its
general
partner
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
||
|
Name:
Xxxxxx X. Xxxx
|
|||
|
Title:
Co-President
|
|||
