Exhibit No. 10.13 MACROMARKETS LLC Voting Capital Interests Purchase Agreement Dated as of January 12, 2009
Exhibit
No. 10.13
MACROMARKETS
LLC
Dated
as of January 12, 2009
MACROMARKETS
LLC
This
VOTING CAPITAL INTERESTS PURCHASE AGREEMENT (this “Agreement”), is made
as of the 12th day of
January, 2009, by and between MacroMarkets LLC, a Delaware limited liability
company (the “Company”), and
Blackhawk Capital Group BDC, Inc., (“Purchaser”), a
Delaware corporation and a business development company registered under the
Investment Company Act of 1940, as amended ("Investment Company
Act"). Capitalized terms used herein shall have the meanings ascribed
to such terms in Section 5.01
hereof.
WITNESSETH:
WHEREAS,
Purchaser desires to purchase Voting Capital Interests from the Company, and the
Company desires to issue and sell Voting Capital Interests to the Purchaser, on
the terms and conditions set forth herein.
NOW,
THEREFORE, in consideration of these premises, the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE
I
PURCHASE,
SALE AND TERMS OF VOTING CAPITAL INTERESTS
1.01 Purchase and Sale of Voting
Capital Interests. The Company hereby agrees to create and
sell to Purchaser and, subject to and in reliance upon the representations,
warranties, covenants, terms and conditions of this Agreement, Purchaser agrees
to purchase and accept from the Company, 624,432.28 units, representing five
percent (5%) of the Voting Capital Interests (the “Purchaser Interests”)
in the Company, for the purchase price of Two Hundred and Fifty Thousand Dollars
($250,000) (the “Purchase
Price”). A copy of the fully diluted capitalization table is
annexed hereto reflecting Purchaser’s Units. A description of the
preferences, voting powers, qualifications, and special or relative rights or
privileges of the Voting Capital Interests is set forth in the
Operating Agreement. Purchaser shall also be entitled to one non-voting Board
seat at the Company as provided by its operating guidelines. The
Company's Operating Agreement provides for such an appointment and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ will be appointed to such non-voting Board seat as of closing (the
"▇▇▇▇▇▇ Appointment") and may provide managerial assistance at the request and
discretion of the Board.
1.02 Company
Deliveries. Simultaneously with the execution of this
Agreement, the Company shall deliver to Purchaser:
(a) a
resolution of the Board of Managers approving the transactions contemplated
hereby including the sale of the Purchaser Interests and the ▇▇▇▇▇▇
Appointment;
(b) the
Operating Agreement; and
(c) all
authorizations, approvals or permits of or filings with, any governmental
authority, including a Form D filing with the Securities and Exchange
Commission, state securities or “Blue Sky” offices, that are required by law in
connection with the lawful sale and creation of the Purchaser Interests shall
have been duly obtained by the Company, except for any notice that may be
required subsequent to the date hereof under applicable state and/or federal
securities laws (which, if required, shall be filed on a timely
basis).
1.03 Purchaser
Deliveries. Simultaneously with the execution of this
Agreement, Purchaser shall deliver to the Company:
the
Purchase Price payable by wire transfer of immediately available funds
to:
Mellon
Bank
Pittsburgh,
PA
ABA#:
▇▇▇-▇▇▇-▇▇▇
For
International Wires Add Swift Code: ▇▇▇▇▇▇▇▇
Account
Number: 101-1730
Account
Name: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Further
credit to:
MacroMarkets
830-02211
(a) ,
or to such bank accounts as the Company has designated in writing to Purchaser
prior to the date hereof; and
(b) the
Operating Agreement duly executed by Purchaser.
1.04 Use of
Proceeds. The Company shall use all of the proceeds from the
sale to Purchaser of the Purchaser Interests in accordance with terms and
conditions set forth herein (the “Sale”) for working
capital to fund the ongoing and prospective operations of the Business,
including general and administrative expenses.
1.05 Certificated
Interests. Pursuant to Section 8.12 of the Operating Agreement
and the resolution of the Board of Managers, the Company shall issue a
certificate to Purchaser, executed by an officer of the Company, representing
the Purchaser’s five percent membership interest in the Company and one
non-voting board seat. Any such certificate shall be deemed a
“Security” as defined in Section 8-102(a)(15) of the Uniform Commercial Code as
in effect in the State of Delaware from time to time.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to Purchaser as follows:
2.01 Organization and Good
Standing; Subsidiaries. Each of the Company and its
Subsidiaries is a duly organized and validly existing entity in good standing
under the laws of its state of formation and has all requisite company power and
authority for the ownership and operation of its properties and for the carrying
on of its business as now conducted and as now proposed to be
conducted. Each of the Company and its Subsidiaries is duly licensed
or qualified and in good standing as a foreign corporation authorized to do
business in all jurisdictions wherein the character of the property owned or
leased, or the nature of the activities conducted, by it makes such licensing or
qualification necessary. Other than Macro Financial LLC, a Delaware
limited liability company, MACRO Securities Depositor LLC, a Delaware limited
liability company, Macro Inflation Depositor LLC, a Delaware limited liability
company, and Macro Housing Depositor LLC, a Delaware limited liability company,
the Company does not (i) own of record or beneficially, directly or
indirectly, (A) any shares of capital stock or securities convertible into
capital stock of any other corporation or (B) any participating interest in any
partnership, joint venture or other corporate business enterprise
except for 50 shares of MacroShares $100 Oil Up Trust, 50 shares of
MacroShares $100 Oil Down Trust, and 40 Founders shares of each of MacroShares
Major Metro Housing Up Sharers, Major Metro Housing Down Shares, MacroShares
Medical Inflation Up Shares Series 2008-1 and MacroShares Medical Inflation Down
Shares, which were used to form the regulated product trusts and are redeemed at
the time the securities are launched, or (C) any assets comprising the business
or obligations of any other corporation, partnership, joint venture or
other corporate business enterprise or (ii) control, directly or
indirectly, any other entity.
2.02 Limited Liability Company
Action. The Company has all necessary limited liability
company power and has taken all limited liability company action required to
enter into and perform this Agreement and any other agreements and instruments
contemplated hereby or to be executed in connection herewith (collectively, the
"Transaction
Documents"), and each Company signatory to each of the Transaction
Documents has been duly authorized to execute and deliver such Transaction
Document on behalf of the Company. The Transaction Documents are
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy laws or by any court sitting as a court of
equity. The creation, sale and delivery of the Purchaser Interests in
accordance with this Agreement, the consummation of all other transactions
contemplated by this Agreement, and the terms and conditions of each other
Transaction Document have been duly authorized by all necessary limited
liability company action on the part of the Company and the necessary consents
of the members and managers of the Company have been
obtained. ▇▇▇▇▇▇ ▇▇▇▇, as an Advisor to the Purchaser’s Board has not
made recommendations as to the merit of this transaction.
2.03 Governmental Approvals;
Consents. Except for the consents of the members and managers
and the filing of any notice that may be required under applicable state and/or
federal securities laws (including a Form D filing) (which, if required, shall
be filed on a timely basis), no authorization, consent, approval, license,
exemption of or filing or registration with any court or governmental
department, commission, board, bureau, agency, instrumentality or any other
Person is or will be necessary for (i) the execution and delivery by the Company
of this Agreement (or any other Transaction Document), (ii) the consummation of
the transactions contemplated by this Agreement (or any other Transaction
Document) and (iii) the performance by the Company of its obligations under this
Agreement (or any other Transaction Document), including, without limitation,
the offer, creation, sale and delivery of the Purchaser Interests.
2.04 Financial Information; No
Undisclosed Liabilities. The audited balance sheet
of the Company as of October 31, 2008 (the “Statement Date”), as
delivered previously to Purchaser, presents fairly in all material respects the
financial position of the Company as of the date thereof and has been prepared
in accordance with the Company’s books and records (the “Balance
Sheet”). There is no liability as of the closing date of this
agreement, contingent or otherwise, not adequately reflected in or reserved
against in the Balance Sheet, other than (i) liabilities incurred in the
ordinary course of business subsequent to the Statement Date and (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and not required under generally accepted accounting principles to be
reflected in the Balance Sheet, which, in both cases, individually or in the
aggregate, are not material to the financial condition of the
Company. Since the Statement Date, (i) there has been no
material adverse change in the business, assets or condition, financial or
otherwise, operations or prospects of the Company, (ii) neither the
business, condition, or operations of the Company nor any of the material
properties or assets of the Company have been adversely affected as the result
of any legislative or regulatory change, any revocation or change in any
material franchise, permit, license or right to do business, or any other event
or occurrence, whether or not insured against, (iii) the Company has not
entered into any material transaction other than in the ordinary course of
business, made any dividend or distribution on its capital stock, or redeemed or
repurchased any of its capital stock, and (iv) the Company has not incurred
any liability or contingent liability in excess of $50,000.
2.05 Securities Act of
1933. Subject in part to the truth and accuracy of Purchaser’s
representations set forth in Section 3.03, the
Company has complied and will comply with all applicable federal and state
securities laws in connection with the offer, creation and sale of the Purchaser
Interests. Neither the Company nor anyone acting on its behalf has or
will sell, offer to sell or solicit offers to buy Purchaser Interests, or
solicit offers with respect thereto from, or enter into any preliminary
conversations or negotiations relating thereto with, any Person, so as to bring
the creation and sale of Purchaser Interests under the registration provisions
of the Securities Act of 1933, as amended (the “Securities Act”), and
applicable state securities laws, and neither the Company nor any of its
affiliates, nor any person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
any of the Purchaser Interests.
2.06 Brokers or
Finders. No Person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or valid claim
against or upon the Company for any commission, fee or other compensation as a
finder or broker.
2.07 Sufficiency of and Title to
Assets. The Company owns good and marketable title or
leasehold title to all of its owned or leased, as applicable, assets and
properties, that are necessary to conduct the Business in the manner presently
operated by the Company, in each case free of any Liens, except for such Liens
that arise in the ordinary course of business.
2.08 Intellectual
Property.
(a) The
Company owns, free and clear of all Liens, or has the valid right to use, all of
the Company Intellectual Property. No other Person (other than
licensors of software that is generally commercially available, and exclusive
licensees of the Company Intellectual Property pursuant to agreements with the
Company) has any rights to any of the Company Intellectual Property, and, to the
Company’s knowledge, no other Person is infringing, violating or
misappropriating any of the Company Intellectual Property.
(b) The
Company has not received any complaint, claim or notice alleging any
infringement, violation or misappropriation of any issued patent, trademark or
copyrights of any other Person, and to the Company’s knowledge, there is no
basis for any such complaint, claim or notice.
(c) The
Company has taken commercially reasonable precautions to (i) protect its rights
in the Company Intellectual Property and (ii) maintain the confidentiality of
its trade secrets, know-how and other confidential Company Intellectual
Property. To the Company’s knowledge, there have been no acts or
omissions (other than those made based on reasonable, good faith business
decisions) by the officers, managers, members, advisors, consultants or
employees of the Company, the result of which could reasonably be expected to
materially compromise the rights of the Company to apply for or enforce
appropriate legal protection of the Company Intellectual Property.
(d) All
of the Company Intellectual Property has been created by (i) employees of the
Company within the scope of their employment by the Company or by independent
contractors of the Company who have executed agreements expressly assigning all
rights, title and interest in such Company Intellectual Property to the Company,
(ii) employees of Case Shiller ▇▇▇▇▇, Inc. (of which the Company was formerly a
wholly-owned subsidiary) (“CSW”), all of whom
executed agreements expressly assigning all right, title and interest in such
Company Intellectual Property to CSW, which Intellectual Property in turn
subsequently assigned all of such right, title and interest in such Company
Intellectual Property to the Company, or (iii) members of the Company who have
executed agreements expressly assigning all right, title and interest in such
Company Intellectual Property to the Company. No portion of the
Company Intellectual Property was jointly developed with any third
party.
2.09 Litigation. There
is no action, suit or proceeding at law or in equity by any Person or
any arbitration or any administrative or other proceeding by or before any
Government Authority pending or, to the Company’s knowledge, threatened, against
the Company which (i) relates to or may affect the Business, or any of the
assets owned or used by the Company, or (ii) challenges, prevents, delays
or makes illegal the Sale and the other transactions contemplated
hereby.
2.10 Authorization. The
sale of Units by the Company to the Purchaser, and the performance of the
provisions of this agreement, do not and will not conflict with any law or
regulation or any term or provision of the Articles of Organization or the
Operating Agreement, and same are duly authorized, and do not require the
consent or approval of any governmental body or other regulatory authority,
except as stated herein and as may be required by application of the securities
laws of the various states, all of which the Company shall use its best efforts
to satisfy for the purposes of establishing any necessary and available
exemption from registration of its securities thereunder in the event such
exemption is available with respect to the transaction contemplated
herein.
2.11 No Conflict.
The execution, delivery and performance of this agreement is not in
contravention of, or in conflict with, any agreement, indenture or undertaking
to which the Company is a party, or by which any of its property may be bound or
affected, and same will not cause any lien, charge or other encumbrance to be
created or imposed upon any preemptive rights, rights of first refusal or
similar rights, statutory or otherwise, that have not been properly waived or
complied with by the Company.
2.12 Capitalization. The
authorized capital of the Company, immediately following the execution of this
agreement, will be as set forth in the Capitalization Table attached hereto as
Schedule A.
2.13 Valid Issue of Purchaser
Interests. The Units issued in connection with this
agreement, when issued, sold and delivered in accordance with the terms of this
agreement and the Operating Agreement, and for the consideration set forth
herein, shall be validly issued, fully paid and non-assessable and free of
restrictions on transfer other than as set forth in this agreement, applicable
state and federal securities laws, and liens and encumbrances created or imposed
by the Purchaser. Assuming the accuracy of the representations of
Purchaser herein, the Units will be issued in compliance with all applicable
federal and state securities laws. The Units issued under the terms of this
agreement have been duly reserved for issuance, will be validly issued, fully
paid, and non-assessable and free of restrictions on transfer other than
restrictions on transfer under the terms of this agreement and the Operating
Agreement, applicable federal and state securities laws and liens, or
encumbrances created or imposed by the Purchaser. Further, neither
the company nor any of its affiliates, nor nay person acting on its behalf, is
subject to the Investment Company Act of 1940, nor the Investment Advisers Act
of 1940.
2.14 Taxes. The
property and assets that the Company owns are free and clear of all mortgages,
deeds of trust, liens, loans, and encumbrances, except for statutory liens for
the payment of current taxes that are not yet delinquent, and encumbrances and
liens that arise in the ordinary course of business and do not materially impair
the Company’s ownership or use of such property or assets.
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser
hereby represents and warrants to the Company as follows:
2.15 Organization and Good
Standing. Purchaser is a duly organized and validly existing
limited liability company in good standing under the laws of the State of
Delaware and has all requisite company power and authority for the ownership and
operation of its properties and for the carrying on of its business as now
conducted and as now proposed to be conducted.
2.16 Corporate
Action. Purchaser has all corporate power and has taken all
corporate action required to enter into and perform this Agreement and any other
applicable Transaction Document, and Purchaser is duly authorized to execute and
deliver such Transaction Document. The Transaction Documents are
valid and binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy laws or by any court sitting as a court of
equity. The consummation of the transactions contemplated by this
Agreement and the terms and conditions of each other Transaction Document have
been duly authorized by all necessary corporate action on the part of
Purchaser.
2.17 Acquisition of Purchaser
Interests for Investment.
(a) Purchaser
is acquiring the Purchaser Interests for its own account for investment purposes
only and not with a view to distribution or resale of the Purchaser
Interests. Purchaser will not sell or otherwise dispose of the
Purchaser Interests in violation of the provisions of the Securities
Act. Purchaser understands that the Purchaser Interests have been
sold in reliance on an exemption from registration under the Securities Act and
exemptions contained in applicable state securities laws and, accordingly, must
be held indefinitely by Purchaser unless they are later transferred in
transactions that are either registered under the Securities Act or exempt from
registration. Purchaser understands that the Company is under no
obligation to register the Purchaser Interests under the Securities Act or to
file for or comply with an exemption from registration and recognizes that
exemptions from registration, in any case, are limited and may not be available
when Purchaser may wish to sell, transfer or otherwise dispose of the Purchaser
Interests.
(b) Purchaser
understands that the Purchaser Interests have not been registered under the
Securities Act, that a notation restricting their transfer will be made on the
unit transfer books of the Company and that any certificates representing the
Purchaser Interests issued will bear the following legend restricting their
transfer:
THE UNITS
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT
COVERING THE TRANSFER OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT
REGISTRATION UNDER SAID ACT IS NOT REQUIRED.
(c) Purchaser
has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of an investment in the Purchaser
Interests. Purchaser understands that the Purchaser Interests are a
risky and speculative investment. Purchaser acknowledges that the
Company has delivered to Purchaser sufficient information regarding the
operations and prospects of the Company as well as certain risks of an
investment in the Purchaser Interests. Purchaser further acknowledges
that (i) the Company has made its officers available for interview by Purchaser
and has made available to Purchaser all documents and information required by
Purchaser to make an informed decision with regard to the purchase of the
Purchaser Interests, and (ii) Purchaser’s knowledge and such interviews,
documents and information are sufficient to allow Purchaser to make an informed
decision with regard to the purchase of the Purchaser Interests.
(d) Purchaser
understands that projected performance and other future looking statements
furnished to Purchaser in connection with its evaluation of an investment in the
Purchaser Interests contain assumptions and that actual results may differ
materially from those projected as a result of risks and
uncertainties.
(e) Purchaser
acknowledges that the Company is issuing Purchaser Interests to Purchaser in
reliance upon its representations and warranties in this Agreement.
2.18 Brokers or
Finders. No Person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or valid claim
against or upon Purchaser for any commission, fee or other compensation as a
finder or broker.
ARTICLE
III
INDEMNIFICATION
3.01 Indemnification.
(a) Indemnification by the
Company. The Company shall indemnify, pay, defend and hold
harmless Purchaser and each of Purchaser’s officers, directors, employees and
agents and their respective Affiliates (the “Purchaser Indemnitees”)
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, the fees and disbursements
of counsel for such indemnitees) (“Damages”), incurred
by such Purchaser Indemnitee, as a result of (i) the misrepresentation,
violation, breach of any representation, warranty or covenant of the Company
under this Agreement (determined with explicit regard to any
materiality qualification or qualification related to such party’s knowledge
contained in any representation or warranty giving rise to a claim for indemnity
hereunder), and (ii) any claim, action, suit or proceeding alleging facts
that, if proven true, would constitute a misrepresentation or breach of any
representation, warranty or covenant by the Company (determined with explicit
regard to any materiality qualification or qualification related to such party’s
knowledge contained in any representation or warranty giving rise to a claim for
indemnity hereunder). In no event shall the Company’s cumulative obligation to
Purchaser under this Article IV exceed the Purchase Price.
(b) Indemnification by the
Purchaser. Purchaser shall, indemnify, pay, defend and hold
harmless the Company and each of the Company’s officers, directors, employees
and agents and their respective Affiliates (the “Company Indemnitees”)
against any and all Damages incurred by such Company Indemnitee, as a result of
(i) the misrepresentation, violation or breach of any representation or
warranty set forth in Section 3.04 of this
Agreement (determined with explicit regard to any materiality qualification or
qualification related to such party’s knowledge contained in any representation
or warranty giving rise to a claim for indemnity hereunder) and (ii) any
claim, action, suit or proceeding alleging facts that if proven true would
constitute a misrepresentation or breach of any representation, warranty or
covenant by Purchaser (determined with explicit regard to any materiality
qualification or qualification related to such party’s knowledge contained in
any representation or warranty giving rise to a claim for indemnity hereunder).
In no event shall Purchaser’s cumulative obligation to the Company under this
Article IV exceed the Purchase Price.
(c) Settlement. No
settlement shall be effected with any third party with respect to an
indemnifiable claim unless such settlement includes an unconditional release of
the Indemnitees.
(d) Survival. The
covenants, agreements, representations and warranties of the Company contained
in this Agreement shall survive the execution and delivery of this Agreement for
a period of twenty-four (24) months following the date hereof, except
that:
(i) in
the case of Section
2.01 (Organization and Good Standing; Subsidiaries), Section 2.02 (Limited
Liability Company Action), Section 2.05
(Securities Act of 1933), Section 2.06 (Brokers
or Finders), and Section 2.07
(Sufficiency of and Title to Assets), Section 2.10 (Authorization). Section 2.11
(No Conflict) and Section 2.13 (Valid Issuance of Purchaser Interests) such
representations shall survive indefinitely; and
(ii) in
the case of the covenants and agreements contained in this Agreement, each such
covenant or agreement shall survive indefinitely until the termination of such
applicable agreement, unless otherwise expressly provided by its
terms.
Notwithstanding
the preceding sentence, any covenant, agreement, representation or warranty in
respect of which indemnity may be sought under Section
4.01(a) shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if notice of the inaccuracy or breach
thereof giving rise to such right to indemnity shall have been given to the
party against whom such indemnity may be sought prior to such time.
ARTICLE
IV
DEFINITIONS
AND ACCOUNTING TERMS
4.01 Certain Defined
Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
“AAA” has the meaning
set forth in Section
6.04(a) of this Agreement.
“Affiliate” means any
Person who, directly or indirectly, controls, is controlled by or is under
common control with any other Person.
“Agreement” has the
meaning set forth in the introductory paragraph of this Agreement.
“Business” means the
business of creating, acquiring, developing, refining, financing, marketing,
promoting, licensing, selling or providing services or products related to Macro
Securities or any derivatives thereof. As used herein, “Macro
Securities” means any security that issues a paired share of up exposure and
down exposure to any index, asset, asset class or cash flow.
“Claim” means claims,
demands, proceedings, causes of action, orders, obligations, contracts,
agreements, debts and liabilities whatsoever, whether known or unknown,
suspected or unsuspected, both at law and in equity.
“Company” has the
meaning set forth in the introductory paragraph of this Agreement.
“Company Indemnitees”
has the meaning set forth in Section 4.01(b) of
this Agreement.
“Company Intellectual
Property” means all of the Company’s tangible or intangible proprietary
information and materials, including without limitation any proprietary
information used in the Business, as well as:
(a) (i) all
inventions (whether patentable or unpatentable and whether or not reduced to
practice), all improvements thereon, and all patents, patent applications and
patent disclosures, together with all reissuances, continuations,
continuations-in-part, divisions, revisions, extensions and re-examinations
thereof; (ii) all trademarks, service marks, trade dress, logos, trade
names, domain names, and corporate names, together with all translations,
adaptations, derivations and combinations thereof and including all goodwill
associated therewith, and all applications, registrations and renewals in
connection therewith, (iii) all copyrights and all applications,
registrations and renewals in connection therewith, (iv) all mask works and
all applications, registrations and renewals in connection therewith,
(v) all trade secrets and confidential business information (including
ideas, research and development, know-how, formulas, compositions, manufacturing
and production process and techniques, methods, schematics, technology,
technical data, designs, drawings, flowcharts, block diagrams, specifications,
customer and supplier lists, pricing and cost information and business and
marketing plans and proposals), and (vi) all software and firmware
(including data, databases and related documentation);
(b) all
documents, records and files relating to design, end user documentation,
manufacturing, quality control, sales, marketing or customer support for, and
tangible embodiments of, all intellectual property described herein;
and
(c) all
licenses, agreements and other rights in any third party product or any third
party intellectual property described in (a) and (b) above other than
any “off the shelf” third party software or related intellectual
property.
“CSW” has the meaning
set forth in Section
2.08(d) of this Agreement.
“Damages” has the
meaning set forth in Section 4.01(a) of
this Agreement.
“Financial Statements”
has the meaning set forth in Section 2.04 of this
Agreement.
“Government Authority”
means any domestic or foreign national, federal, state, multi-state or municipal
or other local government, any subdivision, agency, any legally enforceable
regulatory, administrative or taxing authority thereunder or any official of any
of the foregoing.
“Lien” means, any
mortgage, pledge, conditional assignment, security interest, encumbrance, lien,
lease, levy, claim or charge of any kind, including, without limitation, any
conditional sale or other title retention agreement, any “leveraged
lease” and the filing of or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction and including any lien or
charge arising by statute or other law.
“Member Interests”
means all of the created and outstanding membership interests in the
Company.
“Operating Agreement”
means the Amended and Restated Operating Agreement, by and among the Company and
the members thereof attached hereto as Exhibit
A.
“Person” means an
individual, corporation, partnership, joint venture, trust, or unincorporated
organization, or a government or any agency or political subdivision
thereof.
“Purchase Price” has
the meaning set forth in Section 1.01 of this
Agreement.
“Purchaser” has the
meaning set forth in the introductory paragraph of this Agreement.
“Purchaser
Indemnitees” has the meaning set forth in Section 4.01(a) of
this Agreement.
“Sale” has the meaning
set forth in Section
1.04 of this Agreement.
“Securities Act” has
the meaning set forth in Section 2.05 of this
Agreement.
“Statement Date” has
the meaning set forth in Section 2.04 of this
Agreement.
“Subsidiary” or “Subsidiaries” means
any corporation, limited liability company, partnership or trust of which the
Company and/or any of its other Subsidiaries directly or indirectly owns at the
time outstanding shares of every class of such corporation or trust (other than
directors’ qualifying shares) comprising at least fifty percent (50%) of the
voting power of such corporation or trust.
“to the Company’s
knowledge” and words of similar import shall mean the actual knowledge,
or knowledge reasonably expected to be discovered, by officers, directors and
managers of the Company after due inquiry of each employee responsible for each
subject matter addressed by the representations and warranties.
“Transaction
Documents” has the meaning set forth in Section 2.02 of this
Agreement.
“Unit” has the meaning
set forth in the Operating Agreement.
“Voting Capital
Interests” has the meaning set forth in the Operating
Agreement.
4.02 Accounting
Terms. All accounting terms not specifically defined herein
shall be construed in accordance with U.S. generally accepted accounting
principles consistently applied, and all financial data submitted pursuant to
this Agreement shall be prepared in accordance with such
principles.
ARTICLE
V
MISCELLANEOUS
5.01 No
Waiver. No failure or delay on the part of any party to this
Agreement in exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder.
5.02 Amendments, Waivers and
Consents. Except as otherwise provided in this Agreement,
changes in or additions to this Agreement may be made, and compliance with any
covenant or provision set forth herein may be omitted or waived, if, with
respect to the provisions of this Agreement, the Company and Purchaser shall
consent thereto in writing. Any waiver or consent may be given
subject to satisfaction of conditions stated therein and any waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
5.03 Addresses for
Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing (including facsimile
communication) and mailed, faxed or delivered to each party hereto at the
address set forth below or at such other address as to which such party may
inform the other parties in writing in compliance with the terms of this
Section.
If to
Purchaser:
Blackhawk
Capital Group BDC, Inc.
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Telephone:
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Facsimile:
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with a
copy to:
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P.C.
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Telephone:
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Facsimile:
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Attention:
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MacroMarkets
LLC
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Telephone:
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Facsimile:
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Attention:
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with a
copy to:
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Telephone:
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Facsimile:
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Attention:
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All such
notices, requests, demands and other communications shall, when mailed (which
mailing must be accomplished by first class mail, postage prepaid; express
overnight courier service; or registered mail, return receipt requested) or
transmitted by facsimile, be effective upon delivery by courier, three days
after deposit in the mails or upon transmission by facsimile, respectively,
addressed as aforesaid, unless otherwise provided herein.
5.04 Arbitration. Any
dispute regarding or arising over the enforcement of any provision of, or any
right arising out of, this Agreement shall be resolved as follows:
(a) Should
the applicable parties hereto be unable to resolve any such dispute, any such
party may submit such dispute to arbitration by notifying each other party
hereto to which such dispute applies, in writing, of such
dispute. Within thirty (30) days after receipt of such notice, the
applicable parties hereto shall designate in writing a single arbitrator to
resolve the dispute; provided, however, that if such
parties cannot agree on an arbitrator within such 30-day period, the arbitrator
shall be selected by the New York, New York office of the American Arbitration
Association (the “AAA”). The
arbitrator shall be a lawyer knowledgeable and experienced in the law concerning
the subject matter of the dispute and shall not be an Affiliate, employee,
consultant, officer, director, manager or member of any of the parties
hereto.
(b) Within
thirty (30) days after the designation of the arbitrator, the arbitrator and the
parties hereto shall meet, at which time the parties hereto shall be required to
set forth in writing all disputed issues and a proposed ruling on the merits of
each such issue.
(c) The
arbitrator shall set a date for a hearing, which shall be no later than thirty
(30) days after the submission of written proposals pursuant to subsection (b)
above, to discuss each of the issues identified by the applicable parties
hereto. Such parties shall have the right to be represented by
counsel. Except as provided herein, the arbitration shall be governed
by the Commercial Arbitration Rules of the AAA; provided, however, that the
Federal Rules of Evidence shall apply with regard to the admissibility of
evidence.
(d) The
arbitrator shall use his or her best efforts to rule on each disputed issue
within thirty (30) days after the completion of the hearings described in
subsection (c) above. The determination of the arbitrator as to the
resolution of any dispute shall be binding and conclusive upon all of the
applicable parties. All rulings of the arbitrator shall be in writing
and shall be delivered to the applicable parties.
(e) The
(i) attorneys’ fees of the parties hereto in any arbitration, (ii) fees of the
arbitrator, and (iii) costs and expenses of the arbitration shall be borne by
the parties hereto in dispute as determined by the arbitrator.
(f) Any
arbitration pursuant to this Section 6.04 shall be
conducted in New York, New York. Judgment on any arbitration award
may be entered in and enforced by the United States District Court for the
Southern District of New York or any State courts sitting in New York, New
York.
5.05 Costs, Expenses and
Taxes. Each party hereto agrees that it will pay its own
reasonable fees and expenses, including attorney’s fees, in connection with the
preparation, execution and delivery of this Agreement and the transactions
contemplated hereby, including the creation and sale of the Purchaser Interests
hereunder.
5.06 Binding Effect;
Assignment. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
valid assigns, except that no party shall have the right to delegate any of its
respective obligations hereunder or to assign its respective rights hereunder or
any interest herein without the prior written consent of, with respect to the
provisions of this Agreement, the Company and Purchaser. Moreover,
the preceding sentence shall in no way be deemed to grant Purchaser any rights
to transfer its Voting Capital Interests in any way other than those explicitly
provided in the Operating Agreement.
5.07 Prior
Agreements. This Agreement constitutes the entire agreement
between the parties and supersedes any prior understandings or agreements
between the parties with respect to the subject matter hereof including, without
limitation, the License Agreement.
5.08 Severability. The
provisions of this Agreement are severable and, in the event that any court of
competent jurisdiction shall determine that any one or more of the provisions or
part of a provision contained in this Agreement shall, for any reason, be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement; but this Agreement shall be reformed and construed
as if such invalid or illegal or unenforceable provision, or part of a
provision, had never been contained herein, and such provisions or part reformed
so that it would be valid, legal and enforceable to the maximum extent
possible.
5.09 Governing
Law. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of New York,
without regard to its principles of conflicts of laws.
5.10 Headings. Article,
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
5.11 Counterparts. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing any such counterpart.
5.12 Further
Assurances. From and after the date of this Agreement, upon
the reasonable request of any of the parties hereto, the applicable parties
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
an instrument under seal as of the date first above written.
|
COMPANY:
MACROMARKETS,
LLC
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III | ||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ III | |||
|
Title: Manager
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PURCHASER:
Blackhawk
Capital Group BDC, Inc.
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Name: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: Chief Executive Officer | |||