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Exhibit 10.28
EXECUTION COPY
▇▇▇▇▇▇ ASSOCIATES OF DELAWARE, LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
DATED AS OF AUGUST 28, 2001
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS......................................................2
Section 1.1. Definitions.............................................2
ARTICLE II - ORGANIZATION AND GENERAL PROVISIONS............................18
Section 2.1. Continuation...........................................18
Section 2.2. Name...................................................18
Section 2.3. Term...................................................18
Section 2.4. Registered Agent and Registered Office.................18
Section 2.5. Principal Place of Business............................19
Section 2.6. Qualification in Other Jurisdictions...................19
Section 2.7. Purposes and Powers....................................19
Section 2.8. Title to Property......................................20
ARTICLE III - MANAGEMENT OF THE LLC.........................................20
Section 3.1. Management in General..................................20
Section 3.2. Management Committee of the LLC........................22
Section 3.3. Officers of the LLC....................................24
Section 3.4. Employees of the LLC...................................27
Section 3.5. Operation of the Business of the LLC...................28
Section 3.6. Compensation and Expenses of the Members...............37
Section 3.7. Other Business of the Manager Member and its
Affiliates...........................................37
Section 3.8. Non-Manager Members and Non-Solicitation Agreements....37
Section 3.9. Non-Solicitation and Non-Disclosure by Non-Manager
Members and Employee Stockholders....................38
Section 3.10. Remedies Upon Breach..................................42
Section 3.11. Purchase Provisions...................................43
Section 3.12. No Employment Obligation..............................53
Section 3.13. [Intentionally Omitted]...............................53
Section 3.14. Miscellaneous.........................................53
ARTICLE IV - CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS AND ALLOCATIONS;
DISTRIBUTIONS.........................................................54
Section 4.1. Capital Contributions..................................54
Section 4.2. Capital Accounts; Allocations..........................55
Section 4.3. Distributions..........................................59
Section 4.4. Distributions Upon Dissolution; Establishment of a
Reserve Upon Dissolution.............................59
Section 4.5. Proceeds from Capital Contributions and the Sale of
Securities; Insurance Proceeds; Certain Special
Allocations..........................................60
(i)
Page
Section 4.6. Tax Allocations........................................62
Section 4.7. Other Allocation Provisions............................62
Section 4.8. Withholding............................................63
ARTICLE V - TRANSFER OF LLC INTERESTS BY NON-MANAGER MEMBERS; RESIGNATION,
REDEMPTION AND WITHDRAWAL BY NON-MANAGER MEMBERS; ADMISSION OF
ADDITIONAL NON-MANAGER MEMBERS........................................63
Section 5.1. Transferability of Interests...........................63
Section 5.2. Substitute Non-Manager Members.........................66
Section 5.3. Allocation of Distributions Between Transferor and
Transferee; Successor to Capital Accounts............66
Section 5.4. Resignation, Redemptions and Withdrawals...............67
Section 5.5. Issuance of Additional LLC Interests...................67
Section 5.6. Additional Requirements for Transfer or for Issuance...68
Section 5.7. Registration of LLC Interests..........................69
Section 5.8. Representation of Members..............................69
Section 5.9. Conversion of LLC Points...............................70
Section 5.10. Purchase Program Points...............................71
ARTICLE VI - TRANSFER OF LLC INTERESTS BY THE MANAGER MEMBER; REDEMPTION,
REMOVAL AND WITHDRAWAL................................................72
Section 6.1. Transferability of Interest............................72
Section 6.2. Resignation, Redemption, and Withdrawal................73
ARTICLE VII - PUT OF LLC INTERESTS..........................................74
Section 7.1. Non-Manager Member Puts................................74
ARTICLE VIII - DISSOLUTION AND TERMINATION..................................80
Section 8.1. No Dissolution.........................................80
Section 8.2. Events of Dissolution..................................80
Section 8.3. Notice of Dissolution..................................80
Section 8.4. Liquidation............................................80
Section 8.5. Termination............................................80
Section 8.6. Claims of the Members..................................81
ARTICLE IX - RECORDS AND REPORTS............................................81
Section 9.1. Books and Records......................................81
Section 9.2. Accounting.............................................81
Section 9.3. Financial and Compliance Reports.......................81
Section 9.4. Meetings...............................................82
Section 9.5. Tax Matters............................................83
ARTICLE X - LIABILITY, EXCULPATION AND INDEMNIFICATION......................83
(ii)
Page
Section 10.1. Liability.............................................83
Section 10.2. Exculpation...........................................83
Section 10.3. Fiduciary Duty........................................84
Section 10.4. Indemnification.......................................84
Section 10.5. Notice; Opportunity to Defend and Expenses............85
Section 10.6. Miscellaneous.........................................86
ARTICLE XI - MISCELLANEOUS..................................................86
Section 11.1. Notices...............................................86
Section 11.2. Successors and Assigns................................87
Section 11.3. Amendments............................................87
Section 11.4. No Partition..........................................87
Section 11.5. No Waiver; Cumulative Remedies........................87
Section 11.6. Dispute Resolution....................................88
Section 11.7. Prior Agreements Superseded...........................88
Section 11.8. Captions..............................................88
Section 11.9. Counterparts..........................................88
Section 11.10. Applicable Law; Jurisdiction.........................88
Section 11.11. Interpretation.......................................89
Section 11.12. Severability.........................................89
Section 11.13. Creditors............................................89
Section 11.14. References to this Agreement.........................89
Section 11.15. Exhibits, Schedules and Annexes......................89
Section 11.16. Additional Documents and Acts........................90
Section 11.17. Managers.............................................90
Section 11.18. Guaranty of AMG......................................90
EXHIBITS
Exhibit A - Equity Purchase Program
Exhibit B - Form of Non-Solicitation Agreement
Exhibit C - Form of Promissory Note for Purchases
Exhibit D - Form of Make-Whole Agreement
SCHEDULES
Schedule A - LLC Points and Capital Contributions
Schedule B Designated Initial Member Matters
Schedule C - Model Purchase Calculation
(iii)
▇▇▇▇▇▇ ASSOCIATES OF DELAWARE, LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
============================
This Amended and Restated Limited Liability Company Agreement (the
"Agreement") of ▇▇▇▇▇▇ Associates of Delaware, LLC (the "LLC" or the "Company")
is made and entered into as of August 28, 2001, to become effective as of (and
subject to the occurrence of) the Effective Time (as defined herein), by and
among the Persons identified as the Manager Member and the Non-Manager Members
on SCHEDULE A attached hereto as members of the LLC, and any Persons who may
become members of the LLC in the future in accordance with the provisions
hereof.
WHEREAS, a limited liability company has been formed pursuant to the
Delaware Limited Liability Company Act, 6 DEL. C ss.18-101, ET SEQ., as it may
be amended from time to time and any successor to such Act (the "Act"), by
filing a Certificate of Formation of the LLC with the office of the Secretary of
State of the State of Delaware on August 8, 2001, and entering into a Limited
Liability Company Agreement of the LLC, dated as of August 8, 2001; and
WHEREAS, pursuant to the Purchase Agreement, AMG has agreed, in each case
on the terms and subject to the conditions set forth in the Purchase Agreement,
to cause FA (DE) Acquisition Company, LLC ("FA (DE) Acquisition") to purchase
(i) from ▇▇▇▇▇▇ Associates of Delaware, Inc. ("FAID") (A) at the Closing, all of
the LLC Interests owned by FAID, other than those LLC Points to be held by FAID
as of immediately following the Effective Time (including the Preferred Capital
Account Balance associated with such retained LLC Points as of immediately
following the Effective Time) as set forth on SCHEDULE A hereto, and (B) at the
Subsequent Closing, certain additional LLC Points owned by FAID, and (ii) from
▇▇▇▇▇▇ ▇▇▇▇▇▇ at the Closing, all of the LLC Interests owned by ▇▇▇▇▇▇ ▇▇▇▇▇▇;
and
WHEREAS, the Members desire to continue the LLC as a limited liability
company under the Act and to amend and restate the Limited Liability Company
Agreement of the LLC, dated as of August 8, 2001, in its entirety as herein set
forth, such amendment and restatement to become effective as of, and subject to
the occurrence of, the Effective Time; and
WHEREAS, prior to the Effective Time and pursuant to the Purchase
Agreement, the LLC will enter into a services agreement with the WY LLC (the
"Services Agreement") pursuant to which, from and after the Effective Time, the
LLC will perform various sub-advisory, sub-administrative and other investment
management related services for the WY LLC (all as more fully described in the
Services Agreement) and be compensated for said services from and after the
Effective Time in the manner provided for in the Services Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the mutual
covenants hereinafter set forth, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS.
SECTION 1.1. DEFINITIONS. Unless the context otherwise requires, the terms
defined in this Article I shall, for the purposes of this Agreement, have the
meanings herein specified.
"1940 ACT" shall mean the Investment Company Act of 1940, as it may be
amended from time to time, and any successor to such act.
"ACT" shall have the meaning specified in the recitals hereto.
"ADDITIONAL NON-MANAGER MEMBERS" shall have the meaning specified in
Section 5.5 hereof.
"ADVISERS ACT" shall mean the Investment Advisers Act of 1940, as it may
be amended from time to time, and any successor to such act.
"AFFILIATE" shall mean, with respect to any person or entity (herein the
"first party"), any other person or entity that directly or indirectly controls,
or is controlled by, or is under common control with, such first party. The term
"control" as used herein (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly, of the power to (a)
vote twenty-five percent (25%) or more of the outstanding voting securities of
such person or entity, or (b) otherwise direct the management or policies of
such person or entity by contract or otherwise. For purposes of this Agreement,
the LLC is not an Affiliate of any Member; provided, however, that the LLC and
the WY LLC shall be deemed Affiliates of each other for purposes of this
Agreement. For purposes of this Agreement, FAI and FAID shall at all times be
deemed Affiliates of each other and of ▇▇▇▇▇▇ ▇▇▇▇▇▇.
"AGREEMENT" shall have the meaning specified in the preamble hereto.
"AMG" shall mean Affiliated Managers Group, Inc., a Delaware corporation,
and any successors or assigns thereof.
"AMG SHARES" shall mean shares of AMG's common stock, par value $.01 per
share.
"APPLICABLE AGGREGATE NON-MANAGER MEMBER ALLOCATION PERCENTAGE" shall
mean, as of the date of any transaction described in Section 4.2(e) hereof, the
quotient (expressed as a percentage) obtained by dividing (i) the aggregate
number of Vested LLC Points held by the Non-Manager Members (other than FAID) as
of the date of such transaction by (ii) the number of Vested LLC Points
outstanding as of the date of such transaction.
"APPLICABLE FAID ALLOCATION PERCENTAGE" shall mean, as of the date of any
transaction described in Section 4.2(e) hereof, the quotient (expressed as a
percentage) obtained by dividing (i) the number of Vested LLC Points held by
FAID as of the date of such transaction by (ii) the number of Vested LLC Points
outstanding as of the date of such transaction.
"APPLICABLE MANAGER MEMBER ALLOCATION PERCENTAGE" shall mean, as of the
date of any transaction described in Section 4.2(e) hereof, the quotient
(expressed as a percentage) obtained by dividing (i) the aggregate number of
Vested LLC Points held by the Manager Member and its
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Affiliates as of the date of such transaction by (ii) the number of Vested LLC
Points outstanding as of the date of such transaction.
"APPLICABLE SERIES A AGGREGATE NON-MANAGER MEMBER ALLOCATION PERCENTAGE"
shall mean, as of the date of any transaction described in Section 4.2(e)
hereof, the quotient (expressed as a percentage) obtained by dividing (i) the
aggregate number of Vested Series A LLC Points held by the Non-Manager Members
holding Series A LLC Points (other than FAID) as of the date of such transaction
by (ii) the number of Vested LLC Points outstanding as of the date of such
transaction.
"ASSERTED LIABILITY" shall have the meaning specified in Section 10.5(a)
hereof.
"AVERAGE AMG STOCK PRICE" shall have the meaning specified in Section
7.1(i) hereof.
"BOOK VALUE" shall mean, as of any date of determination hereunder, an
amount equal to the book value of the assets of the LLC, based upon the
financial statements of the LLC as of the last day of the fiscal quarter
immediately preceding the quarter during which such determination is to be made.
Any determination of Book Value hereunder shall be made by the Manager Member in
its sole discretion, and such determination shall be binding on all parties
absent a mathematical error. For the avoidance of doubt, the book value of the
assets of the LLC shall not include any items of intangible property resulting
from the purchases of LLC Interests occurring pursuant to the Purchase Agreement
and the Management Owner Purchase Agreement.
"CAPITAL ACCOUNT" shall mean the capital account maintained by the LLC
with respect to each Member in accordance with the capital accounting rules
described in Section 4.2 hereof.
"CAPITAL CONTRIBUTION" shall mean, as to each Member, the amount of money
and/or the agreed fair market value of any property (net of any liabilities
encumbering such property that the LLC is considered to assume or take subject
to) contributed to the capital of the LLC by such Member.
"CARRYING VALUE" shall mean, with respect to any LLC asset, the asset's
adjusted basis for federal income tax purposes, except that the Carrying Values
of all LLC assets shall be adjusted to equal their respective Fair Market Values
in accordance with the rules set forth in Treasury Regulations Section
1.704-1(b)(2)(iv)(f), except as otherwise provided herein, immediately prior to:
(a) the date of the acquisition of any additional LLC Interest by any new or
existing Member in exchange for more than a de minimis Capital Contribution; (b)
the date of the distribution of more than a de minimis amount of LLC property
(other than a pro rata distribution) to a Member; or (c) the date of the
termination of the LLC under Section 708(b)(1)(B) of the Code, provided that
adjustments pursuant to clauses (a) and (b) above shall be made only if the
Manager Member reasonably determines that such adjustments are necessary or
appropriate to reflect the relative economic interests of the Members. The
Carrying Value of any LLC asset distributed to any Member shall be adjusted
immediately prior to such distribution to equal its Fair Market Value.
"CEO" shall have the meaning specified in Section 3.3 hereof.
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"CERTIFICATE" shall mean the Certificate of Formation of the LLC filed
under the Act, as the same may be amended and/or restated from time to time in
accordance with the terms hereof.
"CHARITY" shall have the meaning specified in the Purchase Agreement.
"CLAIMS NOTICE" shall have the meaning specified in Section 10.5(a)
hereof.
"CLIENT" shall mean all Past Clients, Present Clients and Potential
Clients, subject to the following general rules: (i) with respect to each
Client, the term shall also include any Persons which are known to the Employee
Stockholder to be Affiliates of such Client, directors, officers or employees of
such Client or any such Affiliates thereof, or Persons who are members of the
Immediate Family of any of the foregoing Persons or Affiliates of any of them;
(ii) with respect to any Client that is a collective investment vehicle
(provided that, for the avoidance of doubt, a 401(k) retirement plan shall not
itself be considered a "collective investment vehicle" except to the extent a
particular Employee Stockholder or Non-Manager Member (as applicable) has actual
knowledge of the identities of investors therein), the term shall also include
any investor or participant in such Client (provided that, in the case of any
collective investment vehicle that is a registered investment company, an
investor or participant therein shall not be deemed a "Client" hereunder unless
such investor or participant has in the aggregate at least $500,000 under
management by the LLC and its Controlled Affiliates (whether through investments
in registered investment companies or otherwise)); and (iii) with respect to any
Client that is a trust or similar entity, the term shall include the settlor and
each of the beneficiaries of such Client and the Affiliates and Immediate Family
members of any such Persons.
"CLOSING" shall have the meaning specified in the Purchase Agreement.
"CODE" OR "INTERNAL REVENUE CODE" shall mean the United States Internal
Revenue Code of 1986, as from time to time amended, and any successor thereto,
together with all regulations promulgated thereunder.
"COMMITTEE VOTE" shall have the meaning specified in Section 3.2(b)(iv)
hereof.
"COMPANY" shall have the meaning specified in the preamble hereto.
"CONSENTING PERCENTAGE" shall have the meaning specified in the Purchase
Agreement (PROVIDED, HOWEVER, that, solely for purposes of the use of such term
in this Agreement and any "Put Option Agreements" (or similar agreements)
entered into between the Manager Member and any Employee Stockholder or
Non-Manager Member, the Consenting Percentage shall be recalculated as of the
Closing True-Up Date (as defined in the Purchase Agreement) to take into account
any increase thereto resulting from the inclusion of any Applicable Excluded
Contracts as of such date).
"CONTINGENT CONSIDERATION" shall mean, with respect to the Manager
Member's (or its assignee's) purchase of LLC Points pursuant to Section 3.11 or
Section 7.1 (as applicable), an obligation on the part of the Manager Member (or
its successor or assigns) to pay to the Selling Member (or its successors or
assigns), on the Liquidation Date, an amount equal to the lesser of:
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(i) the portion of the Purchase Price indicated in Section
3.11(f)(i)(D), Section 3.11(f)(ii), Section 3.11(f)(iii)(B) or Section
7.1(f)(ii)(B), as applicable; or
(ii) the amount calculated in clause (i) of this definition,
multiplied by a fraction, (A) the numerator of which is the Book Value as
of the Liquidation Date, and (B) the denominator of which is the Book
Value as of the time the termination of the Selling Member's (or its
related Employee Stockholder's, as applicable) employment with the LLC
occurred.
Notwithstanding any provision of this Agreement to the contrary
(including, without limitation, the provision of Section 3.11(f) hereof), the
Manager Member may (without the need for any vote or consent of any Member or
Members) assign and delegate its obligation to pay the Contingent Consideration
(including, by way of example and not of limitation, to a transferee of LLC
Interests pursuant to Section 6.1(a)).
"CONTROLLED AFFILIATE" shall mean, with respect to a Person, any Affiliate
of such Person with respect to which such Person possesses (directly or
indirectly) the power to direct the management or relevant policies of such
Affiliate (by ownership of voting securities, by contract or otherwise);
provided, however, that no bona fide collective investment vehicle in which at
least a majority in interest of the economic interests are held by third parties
shall be deemed a Controlled Affiliate of the LLC. For the avoidance of doubt,
the WY LLC shall not be deemed a Controlled Affiliate of the LLC.
"CONVERT" shall have the meaning specified in Section 5.9, hereof, and
"Conversion" shall have the corresponding meaning.
"COVERED PERSON" shall mean a Member, any Affiliate of a Member, any
officer, director, shareholder, partner, employee or member of a Member or any
of its Affiliates, any member of the Management Committee or any Officer.
"DESIGNATED INITIAL MEMBER" shall mean each of FAID, ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇.
"DE LLC CLOSING PURCHASE PRICE" shall have the meaning specified in the
Purchase Agreement.
"DE LLC SUBSEQUENT PURCHASE PRICE" shall have the meaning specified in the
Purchase Agreement.
"EFFECTIVE TIME" shall mean the time of the Closing under the Purchase
Agreement.
"ELIGIBLE PERSON" shall have the meaning specified in Section 3.2(b)(i)
hereof.
"EMPLOYEE STOCKHOLDER" shall mean (a) in the case of any Non-Manager
Member which is a natural person, such Non-Manager Member, and (b) in the case
of any Non-Manager Member which is not a natural person, that certain employee
of the LLC or the WY LLC who is the settlor of or owner of issued and
outstanding capital stock of, or other equity interests in, such Non-Manager
Member and is listed as such on SCHEDULE A hereto (including any such
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employee after such employee has transferred any of his or her interest in such
Non-Manager Member to a Permitted Transferee) (and each such Employee
Stockholder agrees to cause his or her related Non-Manager Member to comply with
the provisions of this Agreement applicable to such Non-Manager Member).
"EMPLOYMENT AGREEMENT" shall have the meaning ascribed thereto in the
Purchase Agreement.
"EQUITY PURCHASE PROGRAM" shall mean the LLC's Equity Purchase Program in
the form attached hereto as EXHIBIT A.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor to such Act.
"FA (DE) ACQUISITION" shall have the meaning specified in the recitals
hereto.
"FAI" shall mean ▇▇▇▇▇▇ Associates, Inc., a Delaware corporation.
"FAID" shall have the meaning specified in the recitals hereto.
"FAIR MARKET VALUE" shall mean the fair market value as reasonably
determined by the Manager Member or, for purposes of Section 4.4 hereof, if
there shall be no Manager Member, the Liquidating Trustee.
"FOR CAUSE" shall mean, with respect to the termination of an Employee
Stockholder's employment with the LLC or with the WY LLC, or his or her removal
from the Management Committee or from his or her position as an Officer, any of
the following:
(a) The Employee Stockholder has engaged in any criminal act
which is or involves a violation of federal or state securities laws or
regulations (or equivalent laws or regulations of any country or political
subdivision thereof), embezzlement, fraud, wrongful taking or
misappropriation of property, theft or any other crime involving
dishonesty or other serious felony offense and has been convicted (whether
or not subject to appeal) or pled nolo contendre (or any similar plea) to
any criminal offense in connection with or relating to such act;
(b) The Employee Stockholder has (i) persistently and
willfully failed to perform his or her duties or (ii) failed to devote
substantially all of his or her working time to the performance of such
duties, and in either such case such failure has continued for a period of
not less than thirty (30) days following written notice (provided that the
Manager Member shall consult with the Management Committee to the extent
practicable prior to making a determination that the actions of an
Employee Stockholder constitute "Cause" under this paragraph (b)), except,
in the case of an Employee Stockholder who is a party to an Employment
Agreement or a Non-Solicitation Agreement, as may be specifically
permitted by the terms of such Employment Agreement or Non-Solicitation
Agreement; or
6
(c) The Employee Stockholder has (i) engaged in a Prohibited
Competition Activity, (ii) violated or breached any material provision of
his or her Employment Agreement or Non-Solicitation Agreement or of this
Agreement or the WY LLC Agreement, or (iii) engaged in any of the
activities prohibited by Section 3.9 hereof resulting (or reasonably
likely to result) (solely in the case of this clause (iii)) in harm that
is not immaterial or insignificant to AMG, the Manager Member, the LLC,
the WY LLC or any of their respective Controlled Affiliates.
"GAAP" shall mean U.S. generally accepted accounting principles.
"GOVERNMENTAL AUTHORITY" shall mean any foreign, federal, state or local
court, governmental authority or regulatory body.
"IMMEDIATE FAMILY" shall mean, with respect to any natural person, (a)
such person's spouse, parents, grandparents, children, grandchildren and
siblings, (b) such person's former spouse(s) and current spouses of such
person's children, grandchildren and siblings and (c) estates, trusts,
partnerships and other entities of which a majority of the interests are held
directly or indirectly by the foregoing.
"INDEBTEDNESS" shall mean, with respect to a Person, (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of property
or services (other than current trade liabilities incurred in the ordinary
course of business and payable in accordance with customary practices), (b) any
other indebtedness of such Person which is evidenced by a note, bond, debenture
or similar instrument, (c) all obligations of such Person under any financing
leases, (d) all obligations of such person in respect of acceptances issued or
created for the account of such Person, (e) all obligations of such Person under
non-competition agreements reflected as liabilities on a balance sheet of such
Person in accordance with GAAP, (f) all liabilities secured by any Lien on any
property owned by such Persons even though such Person has not assumed or
otherwise become liable for the payment thereof, and (g) all net obligations of
such Person under interest rate, commodity, foreign currency and financial
markets swaps, options, futures and other hedging obligations.
"INDEPENDENT PUBLIC ACCOUNTANTS" shall mean PricewaterhouseCoopers, or
such other independent certified public accountant as may be retained by the LLC
in the future with the prior written approval of the Manager Member.
"INITIAL LLC POINTS" means, with respect to a Non-Manager Member and its
Permitted Transferees, those Series B LLC Points held by such Non-Manager Member
in the LLC at the Effective Time together with any Series A LLC Points resulting
from the Conversion of such Series B LLC Points and, with respect to FAID, the
Subsequent Purchase LLC Points, provided that LLC Points shall cease to be
Initial LLC Points from and after the date on which they are acquired by the
Manager Member (or its assignee) or Transferred to any other Person who is not a
Permitted Transferee of the transferor.
"INITIAL MEMBERS" shall mean those Persons who are Members at the
Effective Time.
"INITIAL PUT LLC POINTS" shall have the meaning specified in Section
7.1(d) hereof.
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"INITIAL WY LLC POINTS" shall mean "Initial LLC Points," as defined in the
WY LLC Agreement.
"INTELLECTUAL PROPERTY" shall have the meaning specified in Section 3.9(d)
hereof.
"INVESTMENT MANAGEMENT SERVICES" shall mean any services which involve (a)
the management of an investment account or fund (or portions thereof or a group
of investment accounts or funds) for compensation, (b) the giving of advice with
respect to the investment and/or reinvestment of assets or funds (or any group
of assets or funds) for compensation or (c) otherwise acting as an "investment
adviser" within the meaning of the Advisers Act, and performing activities
related or incidental thereto.
"IRS" shall mean the Internal Revenue Service of the United States
Department of the Treasury, and any successor Governmental Authority thereto.
"LIEN" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any financing lease
having substantially the same economic effect as any of the foregoing) or any
other restrictions, liens or claims of any kind or nature whatsoever, excluding
liens of lessors under operating leases that do not extend beyond the property
leased. Notwithstanding the foregoing, the following items shall not constitute
Liens under this Agreement (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which an
adequate reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; (ii) statutory Liens of landlords and
carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other
similar Liens arising in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which an
adequate reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; and (iii) statutory Liens incurred in
the ordinary course of business in connection with workers' compensation,
unemployment insurances and other types of social security.
"LIQUIDATION DATE" shall mean (a) the date upon which the final
distribution is made to the Members under Section 4.4 hereof, or (b) the date of
the closing of a transaction under the second paragraph of Section 6.1(a).
"LIQUIDATION PREFERENCE" shall mean, as of any time of determination, an
amount equal to the sum of (i) the aggregate positive Capital Account balances
of those Members holding Series A LLC Points and/or Series B-1 LLC Points as of
such time of determination (or an allocable portion thereof, in the case of any
Member holding both Series A LLC Points and Series B-1 LLC Points, on the one
hand, and Series B-2 LLC Points, on the other hand, at such time of
determination), plus (ii) ten million dollars ($10,000,000), plus (iii)
accretion at a rate of ten percent (10%) per annum, calculated from the
Effective Time through such time of determination, on a principal amount equal
to the aggregate positive Capital Account balances as
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of the Effective Time of those Members holding Series A LLC Points and/or Series
B-1 LLC Points plus ten million dollars ($10,000,000) (compounded annually).
"LIQUIDATING TRUSTEE" shall have the meaning specified in Section 8.4
hereof.
"LLC" shall have the meaning specified in the preamble hereto.
"LLC INTEREST" means a Member's limited liability company interest in the
LLC, which includes such Member's LLC Points (whether vested or unvested) as
well as such Member's Capital Account and other rights under this Agreement and
the Act.
"LLC POINTS" shall mean, collectively, the Series A LLC Points and the
Series B LLC Points (including the Series B-1 LLC Points and the Series B-2 LLC
Points) authorized by the LLC pursuant hereto, entitling the holders thereof to
the relative rights, title and interests in the profits, losses, deductions and
credits of the LLC at any particular time as are set forth in this Agreement,
and any and all other benefits to which a holder thereof may be entitled as a
Member as provided in this Agreement (including, without limitation, certain
voting rights as set forth herein). With respect to a particular Member as of
any date, "LLC Points" shall mean the aggregate number of Series A LLC Points,
Series B-1 LLC Points and Series B-2 LLC Points belonging to such Member as set
forth on SCHEDULE A hereto, as amended from time to time in accordance with the
terms hereof, and as in effect on such date.
"LOSSES" shall have the meaning specified in Section 10.4 hereof.
"MAJORITY VOTE" shall mean the affirmative approval, by vote or written
consent, of Non-Manager Members holding a majority of the outstanding LLC Points
then held by all Non-Manager Members.
"MANAGEMENT COMMITTEE" shall have the meaning specified in Section 3.2(a)
hereof.
"MANAGEMENT OWNER PURCHASE AGREEMENT" shall mean that certain Management
Owner Purchase Agreement, dated as of August 28, 2001, by and among AMG and each
of the Management Owners (other than ▇▇▇▇▇▇ ▇▇▇▇▇▇), as the same may be amended
from time to time.
"MANAGEMENT OWNERS" shall have the meaning ascribed thereto in the
Purchase Agreement.
"MANAGER MEMBER" shall mean FA (DE) Acquisition, and any Person who
becomes a successor Manager Member as provided herein; PROVIDED, HOWEVER, that
if any Affiliate of the Manager Member shall at any time hold LLC Points, such
LLC Points shall be treated in the identical manner as LLC Points held by the
Manager Member for all purposes under this Agreement (including without
limitation the allocation provisions contained in Section 4.2 hereof, the
distribution provisions contained in Sections 4.3 and 4.4 hereof, and the
transfer provisions contained in Section 6 hereof).
"MEMBERS" shall mean any Person admitted to the LLC as a "member" within
the meaning of the Act, which includes the Manager Member and the Non-Manager
Members (unless otherwise indicated), and includes any Person admitted as a
substitute Non-Manager Member
9
or an Additional Non-Manager Member pursuant to the provisions of this
Agreement, in such Person's capacity as a member of the LLC (unless otherwise
indicated). For purposes of the Act, the Members shall constitute one (1) class
or group of members.
"NON-MANAGER MEMBER" shall mean any Person admitted to the LLC as a Member
pursuant to the terms hereof, other than the Manager Member.
"NONRECOURSE DEDUCTIONS" shall have the meaning set forth in Treasury
Regulations Section 1.704-2(b). The amount of Nonrecourse Deductions for a
partnership taxable year equals the net increase, if any, in the amount of
Partnership Minimum Gain during that partnership taxable year, reduced (but not
below zero) by the aggregate distributions made during the year of proceeds of a
nonrecourse liability that are allocable to an increase in Partnership Minimum
Gain, determined according to the provisions of Treasury Regulations Section
1.704-2(c).
"NON-SOLICITATION AGREEMENT" shall have the meaning ascribed thereto in
the Purchase Agreement.
"NOTICE DEADLINE" shall have the meaning specified in Section 7.1(d)
hereof.
"NOTICES" shall have the meaning specified in Section 11.1 hereof.
"OFFICERS" shall have the meaning specified in Section 3.3 hereof.
"OPERATING ALLOCATION" shall mean, for any period, an amount equal to the
Revenues From Operations for such period.
"PARTNER NONRECOURSE DEBT MINIMUM GAIN" shall mean an amount with respect
to each partner nonrecourse debt (as defined in Treasury Regulations Section
1.704-2(b)(4)) equal to the Partnership Minimum Gain that would result if such
partner nonrecourse debt were treated as a nonrecourse liability (as defined in
Treasury Regulations Section 1.752-1(a)(2)) determined in accordance with
Treasury Regulations Section 1.704-2(i)(3).
"PARTNER NONRECOURSE DEDUCTIONS" shall have the meaning set forth in
Treasury Regulations Section 1.704-2(i)(2).
"PARTNERSHIP MINIMUM GAIN" shall have the meaning set forth in Treasury
Regulations Sections 1.704-2(b)(2) and 1.704-2(d).
"PAST CLIENT" shall mean at any particular time, any Person who at any
point prior to such time had been an advisee or investment advisory customer of,
or otherwise a recipient of Investment Management Services from, the LLC or the
WY LLC (including, without limitation, either of their predecessors, FAID and
FAI, or any predecessor thereto) or a Controlled Affiliate of the LLC, the WY
LLC or any such predecessor, but at such time is not an advisee or investment
advisory customer or client of, or recipient of Investment Management Services
from, the LLC, the WY LLC or any of their Controlled Affiliates (directly or
indirectly).
10
"PERMANENT INCAPACITY" shall mean, with respect to an Employee
Stockholder, that such Employee Stockholder has been permanently and totally
unable, by reason of injury, illness or other similar cause (determined pursuant
to the process set forth in the following sentence) to have performed his or her
substantial and material duties and responsibilities for a period of three
hundred sixty-five (365) consecutive days, which injury, illness or similar
cause (as determined pursuant to such process) also would render such Employee
Stockholder incapable of operating in a similar capacity during the twelve-month
period following such three hundred sixty-five (365) days. The foregoing
determination shall be made by a licensed physician selected jointly by the
Management Committee and the Manager Member (in the case of a termination of an
Employee Stockholder's employment with the LLC, if such Employee Stockholder is
employed by the LLC), or in the manner provided for in the definition of
"Permanent Incapacity" contained in the WY LLC Agreement (in the case of a
termination of an Employee Stockholder's employment with the WY LLC, if such
Employee Stockholder is employed by the WY LLC); PROVIDED, HOWEVER, that if such
Employee Stockholder is employed by the LLC and the Manager Member or the LLC
(with the prior written consent of the Manager Member granted after the
Effective Time) has purchased lump-sum key-man disability insurance with respect
to such Employee Stockholder, which policy is then in effect, then such
determination shall be made either (i) by an agreement between such physician
and a physician selected by the insurance company with which the Manager Member
or the LLC has entered into such insurance policy, or, if the two physicians
cannot arrive at an agreement, a third physician will be chosen by the first two
physicians, and the majority decision of the three physicians will then be
binding, or (ii) if a different procedure is then required under such insurance
policy, then by using such other procedure as may then be required by the
insurance company issuing such policy.
"PERMITTED TRANSFEREE" shall mean, with respect to any Non-Manager Member,
its transferees pursuant to the provisions of Sections 5.1(b) and 5.1(c) hereof
and, solely to the extent expressly so provided in any consent of either the
Management Committee or the Manager Member pursuant to Section 5.1(a), its
transferees pursuant to Section 5.1(a) hereof (and in the absence of such an
express provision, transferees pursuant to the provisions of Section 5.1(a)
shall not be deemed "Permitted Transferees" of the transferor Non-Manager Member
hereunder).
"PERSON" means any individual, partnership (limited or general),
corporation, limited liability company, limited liability partnership,
association, trust, joint venture, unincorporated organization or other entity.
"POTENTIAL CLIENT" shall mean, at any particular time, any Person to whom
the LLC or the WY LLC (including, without limitation, either of their
predecessors, FAID and FAI, or any predecessors thereto), a Controlled Affiliate
of the LLC or the WY LLC or any such predecessor, or any director, officer
employee, agent or consultant (or persons acting in any similar capacity) of any
such Person (acting on their behalf), has, within two (2) years prior to such
time, offered (whether by means of a personal meeting or by telephone call,
letter, written proposal or otherwise) to provide Investment Management
Services, but who is not at such time an investment advisory customer of, or
otherwise a recipient of Investment Management Services from, the LLC, the WY
LLC or any of their Controlled Affiliates (directly or indirectly). The
preceding sentence is meant to exclude (i) advertising, if any, through mass
media in which the offer, if any, is available to the general public, such as
magazines, newspapers and sponsorships
11
of public events and (ii) "cold calls" and mass-mailing form letters, in each
case to the extent not directed towards any particular Person and not resulting
in an indication of interest or a request for further information.
"PREFERRED CAPITAL ACCOUNT BALANCE" shall mean (i) with respect to the
Manager Member, (A) the DE LLC Closing Purchase Price plus (B) from and after
the date of the Subsequent Purchase, the DE LLC Subsequent Purchase Price, (ii)
with respect to FAID, (A) the DE LLC Closing Purchase Price multiplied by 49/51,
minus (B) from and after the date of the Subsequent Purchase, the dollar amount
determined in clause (A) multiplied by 19/49, and (iii) with respect to each
other Non-Manager Member, $0.
"PRESENT CLIENT" shall mean, at any particular time, any Person who is at
such time an advisee or investment advisory customer of, or otherwise a
recipient of Investment Management Services from, the LLC, the WY LLC or any of
their Controlled Affiliates (directly or indirectly).
"PROGRAM PUT LLC POINTS" shall have the meaning specified in Section
7.1(d) hereof.
"PROGRAM TRANSFER" shall have the meaning specified in Section 7.1(c)
hereof.
"PROHIBITED COMPETITION ACTIVITY" shall mean any of the following
activities:
(a) directly or indirectly, whether as owner, part owner,
member, director, officer, trustee, employee, agent or consultant for or
on behalf of any Person other than the LLC, the WY LLC or any of their
Controlled Affiliates: (i) diverting or taking away any funds or
investment accounts with respect to which the LLC, the WY LLC or any of
their Controlled Affiliates is performing Investment Management Services
(other than funds of which the applicable Employee Stockholder or
Non-Manager Member and/or members of its Immediate Family are the sole
beneficial owners, subject to any applicable restrictions relating thereto
set forth in the Purchase Agreement); or (ii) soliciting any Person to
divert or take away any such funds or investment accounts (other than
funds of which the applicable Employee Stockholder or Non-Manager Member
and/or members of its Immediate Family are the sole beneficial owners,
subject to any applicable restrictions relating thereto set forth in the
Purchase Agreement); or
(b) directly or indirectly, whether as owner, part owner,
partner, member, director, officer, trustee, employee, agent or consultant
for or on behalf of any Person other than the LLC, the WY LLC or any of
their Controlled Affiliates, performing any Investment Management Services
(provided that an Employee Stockholder who directly performs Investment
Management Services for his or her own account or a member of his or her
Immediate Family without a fee or other remuneration, shall not be
considered to have engaged in a Prohibited Competition Activity).
"PURCHASE" shall have the meaning specified in Section 3.11(a).
"PURCHASE AGREEMENT" shall mean that certain Purchase Agreement, dated as
of August 28, 2001, by and among AMG, FAI and its stockholders, FAID and its
stockholders and the Charities, as the same may be amended from time to time.
12
"PURCHASE AGREEMENTS" shall mean, collectively, the Purchase Agreement and
the Management Owner Purchase Agreement.
"PURCHASE CLOSING DATE" shall have the meaning specified in Section
3.11(b).
"PURCHASE PRICE" shall have the meaning specified in Section 3.11(c).
"PURCHASE PROGRAM POINTS" shall mean Series B-2 LLC Points that have been
sold and transferred pursuant to the Equity Purchase Program, together with any
Series A LLC Points resulting from the Conversion of such Series B-2 LLC Points
following their sale and transfer pursuant to the Equity Purchase Program;
provided that LLC Points shall cease to be Purchase Program Points at such time
as they are purchased by the Manager Member (or its assignee) pursuant to
Section 3.11 or Section 7.1 of this Agreement from a Member who acquired such
Purchase Program Points in a sale and transfer pursuant to the Equity Purchase
Program (but thereafter shall continue to be LLC Points notwithstanding such
purchase).
"PURCHASE PROGRAM POINTS FMV" shall have the meaning set forth in Section
3.11(c)(iv).
"PURCHASE PROGRAM PUT LLC POINTS" shall have the meaning specified in
Section 7.1(d).
"PURCHASE PROGRAM SALE" shall have the meaning specified in Section
7.1(c).
"PURCHASE RESERVE" shall mean the number of Series B-2 LLC Points
available for sale and transfer pursuant to the Equity Purchase Program at any
time. At the Effective Time, there are 5,000 Series B-2 LLC Points in the
Purchase Reserve (all of which are outstanding and held by FAID as of the
Effective Time (subject to subsequent Conversion to Series A LLC Points on the
fifth (5th) anniversary of the Effective Time if such LLC Points continue to be
held by FAID), subject to Conversion to Series B-2 LLC Points pursuant to
Section 5.9 hereof upon sale and transfer pursuant to the Equity Purchase
Program).
"PUT" shall have the meaning specified in Section 7.1(a) hereof.
"PUT LLC POINTS" shall have the meaning specified in Section 7.1(d)
hereof.
"PUT NOTICE" shall have the meaning specified in Section 7.1(d) hereof.
"PUT PRICE" shall have the meaning specified in Section 7.1(e) hereof.
"PUT PURCHASE DATE" shall have the meaning specified in Section 7.1(b)
hereof.
"REGULATORY ALLOCATIONS" shall have the meaning specified in Section
4.5(f) hereof.
"REMOVAL FOR ACTING CONTRARY TO THE BEST INTERESTS OF THE LLC" shall mean,
with respect to a Non-Manager Member, a determination by (i) the Management
Committee (excluding for all purposes the Non-Manager Member whose removal is
being considered (or its related Employee Stockholder, as applicable), other
than in the case of any Designated Initial Member, who shall be permitted to
participate in such determination in accordance with Section 3.3 hereof), with
the prior written consent of the Manager Member granted after the Effective
Time, or (ii) the
13
Manager Member, in either such case to remove such Non-Manager Member as a
member of the LLC following a termination of the employment of such Non-Manager
Member (or the Employee Stockholder which is related to such Non-Manager Member,
as applicable) after the Non-Manager Member (or its related Employee
Stockholder, as applicable) has engaged in conduct falling within the definition
of For Cause hereunder or been found to have engaged in Unsatisfactory
Performance hereunder.
"REMOVAL UPON THE INSTRUCTION OF THE MANAGEMENT COMMITTEE" shall mean,
with respect to a Non-Manager Member, a determination by the Management
Committee (excluding for all purposes the Non-Manager Member whose removal is
being considered (or its related Employee Stockholder, as applicable), other
than in the case of any Designated Initial Member, who shall be permitted to
participate in such determination in accordance with Section 3.3 hereof), with
the prior written consent of the Manager Member granted after the Effective
Time, to remove such Non-Manager Member as a member of the LLC following a
termination of the employment of such Non-Manager Member (or the Employee
Stockholder which is related to such Non-Manager Member, as applicable) with the
LLC for any reason other than those described in the definition of Removal For
Acting Contrary to the Best Interests of the LLC (and, for the avoidance of
doubt, any Purchase under Section 3.11 hereof following a termination at the
election of the LLC of the employment of a Non-Manager Member (or its related
Employee Stockholder) for any reason other than those described in the
definition of Removal For Acting Contrary to the Best Interests of the LLC shall
be deemed a Removal Upon the Instruction of the Management Committee).
"RETIREMENT" shall mean (i) with respect to an Employee Stockholder who is
employed by the LLC, the termination by such Employee Stockholder of such
Employee Stockholder's employment with the LLC (a) after the date such Employee
Stockholder shall have been continuously employed by the LLC for a period of
fifteen (15) years commencing with the later of the Effective Time or the date
such Employee Stockholder commenced his or her employment with the LLC (not
including its predecessors, FAID and FAI), as applicable, except to the extent a
period shorter than fifteen (15) years has been expressly specified (with the
Manager Member's prior written consent granted after the Effective Time in its
sole discretion, provided that the Manager Member also shall be deemed to have
consented after the Effective Time to those Retirement dates expressly set forth
in the Employment Agreements and Non-Solicitation Agreements of even date
herewith that have been executed by FA (DE) Acquisition or FA (WY) Acquisition)
in any Employment Agreement or Non-Solicitation Agreement entered into between
the LLC and such Employee Stockholder (in which case such shorter period shall
apply in lieu of such fifteen (15) year period), and (b) pursuant to a written
notice given to the LLC and the Manager Member not less than one (1) year prior
to the date of such termination (or such longer notice period as may be
expressly specified in such Employee Stockholder's Employment Agreement or
Non-Solicitation Agreement with the Manager Member's prior written consent
granted after the Effective Time in its sole discretion), and (ii) with respect
to an Employee Stockholder who is employed by the WY LLC, such Employee
Stockholder's retirement in accordance with the provisions therefor included in
the definition of "Retirement" contained in the WY LLC Agreement.
"REVENUES FROM OPERATIONS" shall mean, for any period, the consolidated
gross revenues of the LLC and any Controlled Affiliates thereof (excluding any
portion of the gross revenues of
14
a Controlled Affiliate of the LLC attributable to minority equity interests
therein held by Persons other than the LLC, the WY LLC, the Non-Manager Members
or any of their respective Affiliates or Immediate Family members, in each case
except to the extent otherwise agreed to in writing by the Management Committee
and the Manager Member after the Effective Time), determined on an accrual basis
in accordance with GAAP consistently applied (but including other income such as
interest, dividend income and proceeds from the sale of assets, except to the
extent otherwise expressly provided in the following proviso); PROVIDED,
HOWEVER, that Revenues From Operations shall not include (a) proceeds from the
sale, exchange or other disposition of all, or substantially all, of the assets
of the LLC and its Controlled Affiliates and the WY LLC and its Controlled
Affiliates (and any such proceeds shall be allocated in accordance with Sections
4.2(e) and 4.2(f) hereof), (b) revenues from the issuance by the LLC of
additional LLC Points, other LLC Interests or other securities issued by the LLC
or any of its Controlled Affiliates (and any such proceeds shall be utilized in
accordance with Section 4.5(g) hereof), (c) payments received from FAI, FAID,
either of the Charities or any of the Management Owners by reason of
indemnification obligations under the Purchase Agreement or the Management Owner
Purchase Agreement (as applicable) (however provided, including pursuant to one
of the offset mechanisms specified in Section 13 of the Purchase Agreement or
Section 10 of the Management Owner Purchase Agreement resulting in such funds
being retained by the LLC instead of being paid to any such Person) (and any
such payments shall be deemed an adjustment to the Purchase Price under the
Purchase Agreement and a corresponding Capital Contribution to the LLC by the
Manager Member, and shall be utilized in accordance with the last paragraph of
Section 3.5(c)) and (d) interest payments made by the LLC or the WY LLC to the
other in respect of any Working Capital Loans outstanding from time to time (and
any such payments shall be added directly to the Operating Allocation of the WY
LLC for the period in which they are accrued).
"SEC" shall mean the Securities and Exchange Commission, and any successor
Governmental Authority thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as it may be
amended from time to time, and any successor thereto.
"SELLING MEMBER" shall have the meaning specified in Section 3.11(a).
"SERIES A LLC POINTS" shall mean, as of any date, with respect to a
Member, the number of Series A LLC Points of such Member as set forth on
Schedule A hereto, as amended from time to time in accordance with the terms
hereof, and as in effect on such date. Series A LLC Points shall have the rights
and preferences set forth in this Agreement, but except where otherwise
specified shall be treated as one class of LLC Points with the Series B-1 LLC
Points and the Series B-2 LLC Points.
"SERIES B LLC POINTS" shall mean, as of any date, with respect to a
Member, the aggregate number of Series B-1 LLC Points and Series B-2 LLC Points
of such Member as set forth on Schedule A hereto, as amended from time to time
in accordance with the terms hereof, and as in effect on such date. Series B LLC
Points shall have the rights and preferences set forth in this Agreement, but
except where otherwise specified shall be treated as one class of LLC Points
with the Series A LLC Points.
15
"SERIES B-1 LLC POINTS" shall mean, as of any date, with respect to a
Member, the number of Series B-1 LLC Points of such Member as set forth on
Schedule A hereto, as amended from time to time in accordance with the terms
hereof, and as in effect on such date. Series B-1 LLC Points shall have the
rights and preferences set forth in this Agreement, but except where otherwise
specified shall be treated as one class of LLC Points with the Series B-2 LLC
Points and the Series A LLC Points.
"SERIES B-2 LLC POINTS" shall mean, as of any date, with respect to a
Member, the number of Series B-2 LLC Points of such Member as set forth on
Schedule A hereto, as amended from time to time in accordance with the terms
hereof, and as in effect on such date. Series B-2 LLC Points shall have the
rights and preferences set forth in this Agreement, but except where otherwise
specified shall be treated as one class of LLC Points with the Series B-1 LLC
Points and the Series A LLC Points.
"SERVICES AGREEMENT" shall have the meaning specified in the recitals
hereto.
"SERVICES PAYMENTS" shall mean payments required to be made to the LLC
pursuant to the Services Agreement.
"STOCK PRICE" shall have the meaning specified in Section 7.1(i) hereof.
"SUBSEQUENT CLOSING" shall have the meaning specified in the Purchase
Agreement.
"SUBSEQUENT PURCHASE" shall have the meaning specified in the Purchase
Agreement.
"SUBSEQUENT PURCHASE LLC POINTS" shall mean those Series A LLC Points held
by FAID to be purchased in the Subsequent Purchase pursuant to the Purchase
Agreement.
"TRANSFER" shall have the meaning specified in Section 5.1 hereof, and
"Transferred" shall have the correlative meaning.
"UNSATISFACTORY PERFORMANCE" shall mean (i) in the case of a termination
of an Employee Stockholder's employment with the LLC (if such Employee
Stockholder is employed by the LLC), a written determination by the CEO, with
the written consent of the Manager Member granted after the Effective Time, that
an Employee Stockholder has failed to meet minimum requirements of satisfactory
performance of his or her job, after such Employee Stockholder has received
written notice (with a copy to the Manager Member) that the Management Committee
was considering such a determination and the Employee Stockholder has had a
reasonable opportunity to respond in writing or in person (at such Employee
Stockholder's request) after his or her receipt of such notice, and (ii) in the
case of a termination of an Employee Stockholder's employment with the WY LLC
(if such Employee Stockholder is employed by the WY LLC), a determination of
unsatisfactory performance made in accordance with the provisions therefor
included in the definition of "Unsatisfactory Performance" contained in the WY
LLC Agreement.
"VESTED LLC POINTS" shall mean, at any time and with respect to any
Member, the number of LLC Points held by such Member which have vested at such
time, as determined pursuant to an agreement among the LLC, the Manager Member
and such Member in connection
16
with the issuance or transfer of such LLC Points, and "Vested Series A LLC
Points", "Vested Series B LLC Points", "Vested Series B-1 LLC Points", and
"Vested Series B-2 LLC Points" shall have the corresponding meanings. The number
of Vested LLC Points held by each member and the vesting schedule with respect
to LLC Points which are not vested, shall be indicated on SCHEDULE A hereto,
which Schedule shall be updated by the Manager Member as additional LLC Points
are issued and/or vest from time to time. For the avoidance of doubt, (i) all of
the Initial LLC Points shall be deemed Vested LLC Points as of the Effective
Time (including any such Initial LLC Points that are subsequently Transferred
pursuant to the Equity Purchase Program), (ii) any outstanding LLC Points held
by the Manager Member or any of its Affiliates shall be deemed Vested LLC Points
while held by any of such Persons, and (iii) any outstanding LLC Points which
have not yet vested as of any time of determination shall nonetheless be deemed
outstanding LLC Points (but not "Vested LLC Points") as of such time of
determination for all purposes under this Agreement.
"VESTED WY LLC POINTS" shall have the meaning specified in the WY LLC
Agreement.
"WORKING CAPITAL LOAN" shall mean a loan made by the LLC to the WY LLC, or
by the WY LLC to the LLC, in either case on arms' length terms either (i) in the
reasonable discretion of the Management Committee and the "Management Committee"
of the WY LLC, if such loan is to be made out of the Operating Allocation, or
(ii) with the prior written consent of the "Manager Member" and the "Management
Committee" of the WY LLC granted after the Effective Time (in each of their sole
discretion), if such loan is to be made out of the Owners' Allocation of the WY
LLC, PROVIDED that, in either such case, the documentation relating to such loan
shall be written and shall be in form and substance reasonably satisfactory to
the Manager Member and the Management Committee (and to the "Manager Member" and
the "Management Committee" of the WY LLC) and approved by each of them in
writing after the Effective Time.
"WY LLC" shall mean ▇▇▇▇▇▇ Associates, LLC, a Delaware limited liability
company.
"WY LLC AGREEMENT" shall mean the Amended and Restated Limited Liability
Company Agreement of the WY LLC of even date herewith, as the same may be
amended from time to time in accordance with the terms thereof.
"WY LLC INTEREST" shall have the meaning specified in the WY LLC
Agreement.
"WY LLC MANAGER MEMBER" shall mean the "Manager Member" of the WY LLC, as
such term is defined in the WY LLC Agreement.
"WY LLC POINTS" shall have the meaning specified in the WY LLC Agreement.
In addition to the foregoing, other capitalized terms used in this
Agreement shall have the meaning ascribed thereto in the text of this Agreement.
17
ARTICLE II - ORGANIZATION AND GENERAL PROVISIONS.
SECTION 2.1. CONTINUATION.
(a) Effective as of (and subject to the occurrence of) the
Effective Time, the Members hereby agree to continue the LLC as a limited
liability company under and pursuant to the provisions of the Act, and
agree that the rights, duties and liabilities of the Members shall be as
provided in the Act, except as otherwise provided herein; PROVIDED,
HOWEVER, that, in the event that an Employee Stockholder's employment with
FAI, FAID and all of their Affiliates (including without limitation the WY
LLC) is terminated for any reason prior to the Effective Time, such
Employee Stockholder (and its related Non-Manager Member, if any) shall
cease to be a party hereto upon such termination of employment (and shall
not have any rights, duties or liabilities hereunder). In the event that
the Purchase Agreement is terminated in accordance with its terms prior to
the Effective Time, this Agreement shall have no effect and shall be null
and void without any Person being required to take any action.
(b) Upon the execution of this Agreement or a counterpart of
this Agreement, the Initial Members shall continue as members of the LLC.
(c) The name, LLC Points and Capital Contribution of each
Member (including the agreed value of such Capital Contribution) shall be
listed on SCHEDULE A attached hereto. The Manager Member shall update
SCHEDULE A from time to time as it deems necessary in accordance with this
Agreement, to accurately reflect the information to be contained therein.
Any amendment or revision to SCHEDULE A shall not be deemed an amendment
to this Agreement. Any reference in this Agreement to SCHEDULE A shall be
deemed to be a reference to SCHEDULE A as amended and in effect from time
to time.
(d) The Manager Member, as an authorized person within the
meaning of the Act, shall execute, deliver and file any certificates
required or permitted by the Act to be filed in the office of the
Secretary of State of the State of Delaware.
SECTION 2.2. NAME. The name of the LLC heretofore formed and continued
hereby is ▇▇▇▇▇▇ Associates of Delaware, LLC. At any time the Management
Committee, with the written consent of the Manager Member granted after the
Effective Time, may change the name of the LLC. The business of the LLC (and of
any Controlled Affiliate of the LLC) may be conducted (upon compliance with all
applicable laws) under any other name designated by the Management Committee
with the prior written consent of the Manager Member granted after the Effective
Time (and the LLC and its Controlled Affiliates shall in no event conduct
business under other names without such agreement of the Management Committee
and the Manager Member, subject to Section 2.6).
SECTION 2.3. TERM. The term of the LLC commenced on the date the
Certificate was filed in the Office of the Secretary of State of the State of
Delaware and shall continue until the LLC is dissolved in accordance with the
provisions of this Agreement.
SECTION 2.4. REGISTERED AGENT AND REGISTERED OFFICE. The LLC's registered
agent and registered office in Delaware shall be Corporation Service Company,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. At any time, the Manager Member
may designate another registered agent and/or registered office.
SECTION 2.5. PRINCIPAL PLACE OF BUSINESS. The principal place of business
of the LLC (and any Controlled Affiliates of the LLC) shall be at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. At any time the Management Committee may
change the location of the LLC's (or any Controlled Affiliate's) principal place
of business (and the LLC's and its Controlled Affiliates' principal place of
business shall in no event be changed without the written agreement of the
Management Committee and, if such location is to be changed to outside of
Greenville, Delaware, the written agreement of the Manager Member).
SECTION 2.6. QUALIFICATION IN OTHER JURISDICTIONS. The Management
Committee shall cause the LLC (and any Controlled Affiliates thereof) to be
qualified or registered (under assumed or fictitious names if necessary) in any
jurisdiction in which they transact business or in which such qualification or
registration otherwise is required.
SECTION 2.7. PURPOSES AND POWERS. The principal business activity and
purposes of the LLC (and any Controlled Affiliates thereof) shall be to engage
in the investment advisory and investment management business and any businesses
related thereto or useful in connection therewith (including the provision of
trust and other fiduciary services). However, the business and purposes of the
LLC (and any Controlled Affiliates thereof) shall not be limited to such initial
principal business activities if the Management Committee and the Manager Member
otherwise agree in writing, and in such event, the LLC (and any Controlled
Affiliates thereof) shall have authority to engage in any other lawful business,
purpose or activity permitted by the Act. The LLC shall possess and may exercise
all of the powers and privileges granted by the Act, together with any powers
incidental thereto, including such powers or privileges that are necessary or
convenient to the conduct, promotion or attainment of the business purposes or
activities of the LLC, including without limitation the following powers:
(a) to conduct its business and operations and to have and
exercise the powers granted to a limited liability company by the Act in
any state, territory or possession of the United States or in any foreign
country or jurisdiction;
(b) to purchase, receive, take, lease or otherwise acquire,
own, hold, improve, maintain, use or otherwise deal in and with, sell,
convey, lease, exchange, transfer or otherwise dispose of, mortgage,
pledge, encumber or create a security interest in all or any of its real
or personal property, or any interest therein, wherever situated;
(c) to borrow or lend money or obtain or extend credit and
other financial accommodations, to invest and reinvest its funds in any
type of security or obligation of or interest in any public, private or
governmental entity, and to give and receive interests in real and
personal property as security for the payment of funds so borrowed, loaned
or invested;
(d) to make contracts, including contracts of insurance, incur
liabilities and give guaranties, including without limitation, guaranties
of obligations of other Persons who are interested in the LLC or in whom
the LLC has an interest;
19
(e) to employ Officers, employees, agents and other persons,
to fix the compensation and define the duties and obligations of such
personnel, to organize committees of the Management Committee, to delegate
to such personnel and committees the Management Committee's power and
authority, to establish and carry out retirement, incentive and benefit
plans for such personnel, and to indemnify such personnel to the extent
permitted by this Agreement and the Act;
(f) to make donations irrespective of benefit to the LLC for
the public welfare or for community, charitable, religious, educational,
scientific, civic or similar purposes;
(g) to institute, prosecute, and defend any legal action or
arbitration proceeding involving the LLC, and to pay, adjust, compromise,
settle, or refer to arbitration any claim by or against the LLC or any of
its assets;
(h) to indemnify any Person in accordance with the Act and to
obtain any and all types of insurance;
(i) to negotiate, enter into, renegotiate, extend, renew,
terminate, modify, amend, waive, execute, acknowledge or take any other
action with respect to any lease, contract or security agreement in
respect of any assets of the LLC;
(j) to form, sponsor, organize or enter into joint ventures,
general or limited partnerships, limited liability companies, trusts and
any other combinations or associations formed for investment purposes;
(k) to make, execute, acknowledge and file any and all
documents or instruments necessary, convenient or incidental to the
accomplishment of the purposes of the LLC; and
(l) to cease its activities and cancel its Certificate.
SECTION 2.8. TITLE TO PROPERTY. All property owned by the LLC, real or
personal, tangible or intangible, shall be deemed to be owned by the LLC as an
entity, and no Member, individually, shall have any ownership of such property.
ARTICLE III - MANAGEMENT OF THE LLC.
SECTION 3.1. MANAGEMENT IN GENERAL.
Subject to the other terms and conditions of this Agreement,
including the delegations of power and authority set forth herein, the
management and control of the business of the LLC shall be vested exclusively in
the Manager Member, and the Manager Member shall have exclusive power and
authority, in the name of and on behalf of the LLC, to perform all acts and do
all things which, in its sole discretion, it deems necessary or desirable to
conduct the business of the LLC, with or without the vote or consent of the
other Members in their capacity
20
as such; PROVIDED, HOWEVER, that the Manager Member's power and authority over
those matters delegated exclusively to the Management Committee pursuant to
Section 3.5 of this Agreement shall be limited to (i) the Manager Member's power
and authority under Section 3.2(b)(v) to designate members of the Management
Committee and (ii) such other power and authority as is expressly granted or
reserved to the Manager Member by other provisions of this Agreement (other than
this Section 3.1(a)). Members, in their capacity as such, shall have no right to
amend or terminate this Agreement or to appoint, select, vote for or remove the
Manager Member, the Officers or their agents or to exercise voting rights or
call a meeting of the Members, except as specifically provided in this
Agreement. No Member other than the Manager Member shall have the power to sign
for or bind the LLC in its capacity as a Member, but the Manager Member may
delegate the power to sign for or bind the LLC to one or more Officers
(including without limitation through delegation to the Management Committee).
(a) The Manager Member shall, subject to all applicable
provisions of this Agreement and the Act, be authorized in the name of and
on behalf of the LLC (subject to the limitations on the authority of the
Manager Member set forth herein): (i) to enter into, execute, amend,
supplement, acknowledge and deliver any and all contracts, agreements,
leases or other instruments for the operation of the LLC's business; and
(ii) in general to do all things and execute all documents necessary or
appropriate to conduct the business of the LLC as set forth in Section 2.7
hereof, or to protect and preserve the LLC's assets. The Manager Member
may delegate any or all of the foregoing powers to one or more of the
Officers (including without limitation through delegation to the
Management Committee).
(b) The Manager Member is required to be a Member, and shall
hold office until its resignation in accordance with the provisions
hereof. The Manager Member is the "manager" (within the meaning of the
Act) of the LLC. The Manager Member shall devote such time to the business
and affairs of the LLC as it deems necessary, in its sole discretion, for
the performance of its duties, but in any event, shall not be required to
devote full time to the performance of such duties and may delegate its
duties and responsibilities as provided herein.
(c) Any action taken by the Manager Member, and the signature
of the Manager Member (or an authorized representative thereof) on any
agreement, contract, instrument or other document on behalf of the LLC,
shall be sufficient to bind the LLC and shall conclusively evidence the
authority of the Manager Member and the LLC with respect thereto (in each
case subject to the limitations on the authority of the Manager Member set
forth herein).
(d) Any Person dealing with the LLC, the Manager Member or any
Member may rely upon a certificate signed by the Manager Member as to (i)
the identity of the Manager Member or any other Member; (ii) any factual
matters relevant to the affairs of the LLC; (iii) the Persons who are
authorized to execute and deliver any document on behalf of the LLC; or
(iv) any action taken or omitted by the LLC or the Manager Member.
21
SECTION 3.2. MANAGEMENT COMMITTEE OF THE LLC.
(a) The LLC shall have a Management Committee (the "Management
Committee") which shall have the power and authority delegated to it under
this Section 3.2 and under Sections 3.5(a) and 3.5(b) of this Agreement to
conduct the day-to-day operations, business and activities of the LLC.
Each Non-Manager Member hereby grants to the Management Committee (acting
by a Committee Vote), a revocable proxy to vote the LLC Points held by
such Member in connection with any election pursuant to Section 3.2(b)(ii)
hereof to fill a vacancy in the Management Committee, and such proxy may
only be revoked by written notice from a Member to the Management
Committee and the Manager Member, which written notice must expressly
reference this Section of this Agreement.
(b) The Management Committee shall be comprised as follows:
(i) The Management Committee shall initially have five (5)
members and consist of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. The number of members of the
Management Committee may be increased or decreased by the Management
Committee at any time with the written consent of the Manager Member
granted after the Effective Time, such consent not to be
unreasonably withheld (but, subject to clause (ii) below, not
decreased to a number less than three (3) members). No person who is
not both (A) an active employee of either the LLC or the WY LLC and
(B) an Employee Stockholder (an "Eligible Person") may be, become or
remain a member of the Management Committee (subject to clause (v)
below). The Employee Stockholders and the Non-Manager Members shall
ensure that the Management Committee of the LLC shall at all times
be comprised of the same persons as the "Management Committee" of
the WY LLC (as such term is defined in the WY LLC Agreement).
(ii) Any vacancy in the Management Committee however occurring
(including a vacancy resulting from an increase in the size of the
Management Committee) may be filled by any Eligible Person
reasonably acceptable to the Manager Member and elected by a
majority vote of all Members holding LLC Points, with each LLC Point
(regardless of whether such LLC Point is a Series A LLC Point or a
Series B LLC Point) being counted equally in such vote. In lieu of
any such vacancy being filled, the Management Committee may
determine to reduce the size of the Management Committee in
accordance with clause (i) above (but not, without the prior written
consent of the Manager Member granted after the Effective Time, to a
number less than three (3) members); provided that if at any time
there are fewer than three (3) members of the Management Committee,
such vacancies must be filled and, if they remain unfilled for a
period of greater than five days, shall be filled by any Eligible
Person reasonably acceptable to the Manager Member and elected by a
majority vote of all Members holding LLC Points, with each LLC Point
(regardless of whether such LLC Point is a Series A LLC Point or a
Series B LLC Point) being counted equally in such vote.
22
(iii) Members of the Management Committee shall remain members
of the Management Committee until their resignation, removal or
death. Any member of the Management Committee may resign by
delivering his or her written resignation to the CEO (or, in the
case of a resignation of the CEO, to the other members of the
Management Committee) and the Manager Member. At any time that there
are more than three (3) members of the Management Committee, any
member of the Management Committee may be removed from such
position: (A) With or without cause, by the Management Committee
acting by a Committee Vote (with such Committee Vote being
calculated for all purposes as if the member of the Management
Committee whose removal is being considered were not a member of the
Management Committee) with the written consent of the Manager Member
granted after the Effective Time, or (B) For Cause by the Manager
Member, with prior or concurrent notice to the Management Committee
specifying the reasons for the decision. Any Employee Stockholder
who is a member of the Management Committee shall be deemed to have
resigned from the Management Committee and shall no longer be a
member of the Management Committee immediately upon such Employee
Stockholder ceasing to be an Eligible Person for any reason.
(iv) At any meeting of the Management Committee, presence in
person or by telephone (or other electronic means) of a majority of
the members of the Management Committee shall constitute a quorum.
At any meeting of the Management Committee at which a quorum is
present, a majority of the total members of the Management Committee
may take any action on behalf of the Management Committee (any such
action taken by such members of the Management Committee is
sometimes referred to herein as a "Committee Vote"). Any action to
be taken by the Management Committee may be taken without a meeting
of the Management Committee only if (A) a written consent thereto is
signed by all the members of the Management Committee and (B) the
Manager Member has been given a copy of such written consent not
less than forty-eight (48) hours prior to such action (or such
shorter period as to which the Manager Member shall consent in
writing). Notice of the time, date and place of any meeting of the
Management Committee shall be given to all members of the Management
Committee and the Manager Member at least forty-eight (48) hours in
advance of the meeting. A representative of the Manager Member shall
be entitled to attend each meeting of the Management Committee.
Notice need not be given to any member of the Management Committee
or the Manager Member if a waiver of notice is given (orally or in
writing) by such member of the Management Committee or the Manager
Member (as applicable), before, at or after the meeting. Members of
the Management Committee are not "managers" (within the meaning of
the Act) of the LLC (except to the extent otherwise expressly
provided in Section 11.17 hereof).
(v) The Manager Member hereby grants to the Management
Committee (acting by a Committee Vote) a revocable proxy to vote the
LLC Points held by the Manager Member in connection with any
majority vote pursuant to Section 3.2(b)(ii) hereof to fill a
vacancy in the Management
23
Committee. Notwithstanding any other provisions of this Agreement to
the contrary, the Manager Member shall have full power and authority
at any time in its sole discretion (and without the consent or
approval of the Management Committee or the Non-Manager Members) (i)
to increase the number of members of the Management Committee and to
fill the vacancies created by any such increase with one or more
other Employee Stockholders or with any other persons selected by
the Manager Member and/or (ii) to revoke the proxy granted by the
Manager Member to the Management Committee in the immediately
preceding sentence, provided that any such increase and/or proxy
revocation may only be effected by written notice from the Manager
Member to the Management Committee, which written notice must
expressly reference this Section of this Agreement.
SECTION 3.3. OFFICERS OF THE LLC. In each case subject to the immediately
following paragraph relating to the CEO, the Management Committee may designate
employees of the LLC as officers of the LLC (the "Officers") as it deems
necessary or desirable to carry on the business of the LLC. The Management
Committee may delegate any of its power or authority to an Officer or Officers
subject to modification and withdrawal of such delegated power and authority by
the Management Committee. Any two or more offices may be held by the same
person. New offices may be created and filled by the Management Committee. Each
Officer shall hold office until his or her successor is designated by the
Management Committee or until his or her earlier death, resignation or removal.
Any Officer may resign at any time upon written notice to the CEO (or, in the
case of a resignation of the CEO, to the other members of the Management
Committee) and the Manager Member. Any Officer designated by the Management
Committee may be removed from his or her office (i) with or without cause by the
Management Committee (excluding for all purposes the Person being considered),
with the prior written consent of the Manager Member granted after the Effective
Time in the case of a removal of the CEO from his or her position as CEO, or
(ii) For Cause by the Manager Member (with prior or concurrent notice to the
Management Committee specifying the reasons for the decision), in each case at
any time, subject to any applicable terms of such Officer's Employment Agreement
with the LLC, if any. Any removal of an Officer from his or her position as such
shall not have any effect on the employment status of such Employee Stockholder
with the LLC or any Controlled Affiliate thereof (except as expressly provided
in the immediately following paragraph with respect to a removal of the CEO from
his or her position as such). A vacancy in any office occurring because of
death, resignation, removal or otherwise may be filled by the Management
Committee. Any designation of Officers, a description of any duties delegated to
such Officers, and any removal of such Officers by the Management Committee,
shall be approved by the Management Committee in writing, which approval shall
be delivered to the Manager Member. The Officers are not "managers" (within the
meaning of the Act) of the LLC (except to the extent otherwise expressly
provided in Section 11.17 hereof).
The Management Committee shall (with the prior written consent of
the Manager Member granted after the Effective Time, such consent not to be
unreasonably withheld) appoint a Chief Executive Officer (the "CEO") of the LLC
who shall be an Officer and shall have principal responsibility (delegated from
the Management Committee) for the day-to-day management and operations of the
LLC, including the hiring and firing of the Officers and
24
employees of the LLC and its Controlled Affiliates (other than with respect to
Designated Initial Members and their related Employee Stockholders) and the
power and authority to make (or to make recommendations with respect to)
transactions in securities and other instruments in Client accounts, in each
case subject to the same limitations and other requirements set forth herein
that would be applicable to the Management Committee if it were conducting such
management and operations of the LLC; PROVIDED, HOWEVER, that ▇▇▇▇▇▇ ▇▇▇▇▇▇
shall be the CEO as of the Effective Time and for up to the first six (6) months
following the Effective Time (provided that he remains an Eligible Person during
such period), subject to his removal from such position in accordance with the
provisions below relating to a removal of the CEO, and commencing at the end of
such initial period, ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ shall become the CEO (provided that he is
an Eligible Person at that time), subject to his subsequent removal from such
position in accordance with the provisions below relating to a removal of the
CEO. Whenever this Agreement provides that the Management Committee has the
power and authority or is required to take an action, the CEO shall have the
exclusive power and authority (as between the CEO and the Management Committee)
to take such action (except as otherwise expressly provided in this paragraph),
provided that the Management Committee shall retain the power and authority to
take such action (or to delegate to any other Officer the power and authority to
take such action) in the event that the CEO is unable or unwilling to act in a
manner that, in the reasonable determination of the Management Committee, is
timely (and in the event of a dispute with respect to any such intervention by
the Management Committee which has not been resolved within a reasonable period
of time by the CEO and the Management Committee, the Manager Member shall be
authorized to resolve such dispute in its reasonable discretion); PROVIDED,
HOWEVER, that the Management Committee shall have the power and authority (and,
for the avoidance of doubt, the CEO shall not individually have such power and
authority), in each case subject to the other limitations set forth in this
Agreement:
(i) Upon a Committee Vote (and for the avoidance of doubt, the
CEO shall be entitled to participate in the vote on the matter of
his or her own removal) to remove the CEO from his or her position
as CEO with or without cause (with the prior written consent of the
Manager Member granted after the Effective Time in its sole
discretion);
(ii) upon a Committee Vote (and for the avoidance of doubt,
the CEO shall be entitled to participate in such vote), following
consultation with the CEO, to determine (A) the compensation of the
CEO by the LLC from time to time and (B) any allocations of Purchase
Program Points to the CEO for purchase pursuant to the Equity
Purchase Program (provided that such compensation and any such
allocations of Purchase Program Points shall be reasonable under the
circumstances, including without limitation in light of the
operating margins of the LLC at the time such decisions are made and
the compensation to be paid, and Purchase Program Points to be
allocated, to the other Employee Stockholders, and in the event of a
dispute with respect to such matters which has not been resolved
within a reasonable period of time by the CEO and the Management
Committee, the Manager Member shall be authorized to resolve such
dispute in its good faith discretion, and such resolution shall be
final and binding upon all parties hereto);
25
(iii) subject to Section 3.3(vi) hereof, upon a Committee Vote
(and for the avoidance of doubt, such Employee Stockholder whose
removal (or the removal of whose related Non-Manager Member, as
applicable) is being considered shall be entitled to participate in
such vote) to make determinations with respect to any Removal For
Acting Contrary to the Best Interests of the LLC, Removal Upon the
Instruction of the Management Committee, termination of employment
For Cause, termination of employment other than For Cause or
determination of Unsatisfactory Performance, in each case with
respect to the CEO (or his or her related Non-Manager Member, as
applicable) or any Designated Initial Member (or its related
Employee Stockholder, as applicable), and in each case only with the
prior written consent of the Manager Member granted after the
Effective Time in its sole discretion;
(iv) upon a Committee Vote (and for the avoidance of doubt,
the CEO shall be entitled to participate in such vote) to (A) change
the size of the Management Committee and appoint and remove members
of the Management Committee (in each case in the manner provided for
in Section 3.2(b) hereof) and (B) make those determinations required
to be made by the Management Committee with respect to the selection
of physicians as contemplated by the definition of Permanent
Incapacity hereunder;
(v) upon a Committee Vote, to appoint any successor CEO upon a
vacancy occurring in the office of CEO for any reason; and
(vi) upon a Committee Vote (and for the avoidance of doubt,
such Employee Stockholder with respect to which such matter is being
decided shall be entitled to participate in such vote, and if he is
not then a member of the Management Committee, shall nonetheless be
permitted to participate as if he were a member of the Management
Committee at such time), to determine those additional matters with
respect to Designated Initial Members (and their related Employee
Stockholders) specified in items 2-4 set forth on SCHEDULE B hereto
(including without limitation the scope of the duties of each
Designated Initial Member and his reporting obligations, in each
case subject to the terms of such Designated Initial Member's
Employment Agreement); PROVIDED, HOWEVER, that, to the extent the
consent of a Designated Initial Member is required by the provisions
set forth on SCHEDULE B hereto for such determination to be
effective with respect to such Designated Initial Member, any such
determination shall be effective with respect to such Designated
Initial Member (or its related Employee Stockholder, as applicable)
only if he has affirmatively voted in favor of such determination as
part of such Committee Vote.
Following consultation with the Management Committee (and after reflecting the
reasonable views of the Management Committee with respect thereto), the CEO
shall determine (A) the compensation of the Officers and employees of the LLC
and its Controlled Affiliates from time to time and (B) any allocations of
Purchase Program Points to the Officers and employees of the LLC and its
Controlled Affiliates for purchase pursuant to the Equity Purchase Program;
PROVIDED, HOWEVER, that, solely in the case of Designated Initial Members (or
their related
26
Employee Stockholders, as applicable), such compensation and any such
allocations of Purchase Program Points shall be reasonable under the
circumstances, including without limitation in light of the operating margins of
the LLC at the time such decisions are made and the compensation to be paid, and
Purchase Program Points to be allocated, to the other Employee Stockholders, and
in the event of a dispute with respect to such matters which has not been
resolved within a reasonable period of time by the CEO and an applicable
Designated Initial Member, the Manager Member shall be authorized to resolve
such dispute in its good faith discretion, and such resolution shall be final
and binding upon all parties hereto; and PROVIDED, FURTHER, that the reduction
of a Designated Initial Member's (or its related Employee Stockholder's, as
applicable) compensation in the circumstances specified in item 1 set forth on
SCHEDULE B hereto shall only be effective with respect to such Designated
Initial Member (or its related Employee Stockholder) if he has consented to such
reduction. The CEO also may be removed from his or her position as CEO by the
Manager Member at any time For Cause (with prior or concurrent notice to the
Management Committee specifying the reasons for the decision). Any removal of
the CEO from his or her position as CEO by the Management Committee or the
Manager Member (but, for the avoidance of doubt, not by a resignation of the CEO
or any other termination of the CEO's status as CEO) shall result in the
automatic concurrent termination of the CEO's employment with the LLC, the WY
LLC and their respective Controlled Affiliates (except to the extent the CEO,
the Manager Member and the Management Committee may otherwise agree in writing
in connection with the termination of the CEO's status as CEO, in their
respective sole discretions). The Management Committee shall ensure that the CEO
of the LLC (if any) shall at all times be the same person as the "CEO" of the WY
LLC (as such term is defined in the WY LLC Agreement). The CEO shall at all
times be a member of the Management Committee. No person who is not an Eligible
Person may be, become or remain the CEO of the LLC (and any person who is CEO
shall be deemed to have resigned as CEO immediately upon such person ceasing to
be an Eligible Person). If at any time the person serving as CEO of the LLC
ceases to serve as CEO for any reason, the Management Committee shall (with the
prior written consent of the Manager Member granted after the Effective Time,
such consent not to be unreasonably withheld) promptly appoint a new CEO of the
LLC (unless the Manager Member and the Management Committee shall otherwise
consent in writing). If at any time there is no CEO of the LLC, the Management
Committee shall have the power and authority to take such actions as are
specified in this Agreement to be taken by the CEO. The CEO is not a "manager"
(within the meaning of the Act) of the LLC (except to the extent otherwise
expressly provided in Section 11.17 hereof).
SECTION 3.4. EMPLOYEES OF THE LLC.
(a) The decision to employ and the terms of employment of any
employee of the LLC (or any Controlled Affiliates thereof) who is not an
Employee Stockholder (including, without limitation, with respect to the
hiring, all aspects of compensation, promoting, demoting and terminating
of such employees) shall be determined by the CEO, subject, in all cases,
to compliance with all applicable laws, rules and regulations and with the
provisions of Section 3.5 hereof. Notwithstanding the foregoing, the
Manager Member may terminate the employment by the LLC (or any Controlled
Affiliate thereof) of any employee who has engaged in any activity
included in the definition of "For Cause" with prior or concurrent notice
to the Management Committee specifying the reasons for such decision.
27
(b) The granting or Transferring of LLC Interests in
connection with any hiring or promotion of an employee shall be subject to
the terms and conditions set forth in Articles V and VI hereof.
(c) Any Person who is an Employee Stockholder and is employed
by the LLC may have his or her employment with the LLC terminated by the
LLC only: (i) in the case of a termination For Cause, either by the
Manager Member (with prior or concurrent notice to the Management
Committee specifying the reasons for the decision) or by the Management
Committee (excluding for all purposes the Person whose termination is
being considered, other than in the case of any Designated Initial Member,
who shall be permitted to participate in such determination in accordance
with Section 3.3 hereof) with the prior written consent of the Manager
Member granted after the Effective Time, (ii) in the case of any other
termination by the LLC, by the Management Committee (excluding for all
purposes the Person whose termination is being considered, other than in
the case of any Designated Initial Member, who shall be permitted to
participate in such determination in accordance with Section 3.3 hereof)
with the prior written consent of the Manager Member granted after the
Effective Time, or (iii) solely in the case of the CEO, upon an automatic
termination of employment resulting from the removal of the CEO from his
or her status as CEO to the extent expressly provided for in the second
paragraph of Section 3.3 hereof. With respect to any Employee Stockholder
who is employed by the WY LLC, the LLC shall at no time employ such
Employee Stockholder without the prior written consent of the Manager
Member granted after the Effective Time (such consent not to be
unreasonably withheld) (provided that an Employee Stockholder who is an
employee of the WY LLC may act as a member of the Management Committee
and/or an Officer of the LLC without being an employee of the LLC).
(d) Upon termination for any reason of the employment with the
LLC, the WY LLC and their respective Controlled Affiliates of any Employee
Stockholder who serves as a director or trustee of any Client of the LLC,
the WY LLC or any of their respective Controlled Affiliates if such Client
is a registered investment company or a pooled investment vehicle
sponsored by the LLC, the WY LLC or any of their respective Controlled
Affiliates (or any predecessor to any such Person, including without
limitation FAID and FAI), such Employee Stockholder shall resign from such
director or trustee position unless otherwise requested in writing by the
Management Committee and the Manager Member to remain in such position
(provided that no such Employee Stockholder shall be obligated to remain
in any such position following such a written request except in his or her
sole discretion).
SECTION 3.5. OPERATION OF THE BUSINESS OF THE LLC.
(a) Subject to the terms hereof, the Management Committee is
hereby delegated the exclusive power and authority to make recommendations
with respect to transactions in securities and other instruments in
accounts of Clients, and to execute (or cause the execution of)
transactions in, and to exercise all other rights, powers and privileges
with respect to, securities and other instruments in accounts of Clients,
which
28
power and authority may be delegated to the Officers of the LLC from time
to time in the discretion of the Management Committee.
(b) Subject to the limitations expressly set forth elsewhere
in this Agreement (including without limitation in the other provisions of
this Section 3.5), and subject to such power and authority as is expressly
granted or reserved to the Manager Member by other provisions of this
Agreement (e.g., Section 3.5(f)), the Management Committee is hereby
irrevocably delegated (to the greatest extent permitted by applicable law)
the exclusive power and authority from the Manager Member to manage the
day-to-day operations, business and activities of the LLC (without the
vote or consent of any Member in its capacity as such), including, without
limitation, the power and authority, in the name of and on behalf of the
LLC, to:
(i) determine the use of the Operating Allocation as set forth
in Section 3.5(c) below;
(ii) execute such documents and do such acts as are necessary
to register (or provide or qualify for exemptions from any such
registrations) or qualify the LLC (or any Controlled Affiliates
thereof) under applicable federal and state securities laws;
(iii) enter into contracts and other agreements with respect
to the provision of Investment Management Services and execute other
instruments, documents or reports on behalf of the LLC (and any
Controlled Affiliates thereof) in connection therewith;
(iv) enter into contracts, agreements and commitments with
respect to the operation of the business of the LLC (and any
Controlled Affiliates thereof) as are consistent with the other
provisions of this Agreement and the Act; and
(v) act for and on behalf of the LLC (and any Controlled
Affiliates thereof) in all matters incidental to the foregoing and
other day-to-day matters.
(c) The Operating Allocation for any period (plus any unused
amounts previously reserved from prior period Operating Allocations and
the proceeds of any Working Capital Loans received from the WY LLC during
such period) shall be used to provide for and pay the LLC's (and any
Controlled Affiliates' thereof) expenses, obligations and other costs
(including without limitation (i) the payment of premiums during such
period with respect to any insurance coverages maintained, (ii) all
capital expenditures and capital contributions made by the LLC (or any
Controlled Affiliate thereof) during such period, (iii) the satisfaction
of any net worth, working capital or similar requirements imposed by
applicable laws and regulations in connection with the businesses
conducted and registrations held by the LLC (or any Controlled Affiliate
thereof) or otherwise reasonably necessary in connection with the conduct
of the businesses of the LLC (and any Controlled Affiliates thereof), (iv)
payments of interest and repayments of principal to the WY LLC in respect
of any Working Capital Loan (to the extent then due under the terms of
such loans), (v) compensation and benefits payable
29
to employees (including the Officers and the Employee Stockholders) and
(vi) at the discretion of the Management Committee, establishing reserves
for future such payments (as determined by the Management Committee), and
all such expenses, obligations and other costs of the LLC (and any
Controlled Affiliates thereof) shall be paid out of the Operating
Allocation (except to the extent that any such expenses or other costs are
to be paid for using the proceeds of Working Capital Loans). Without the
prior written consent of the Manager Member granted after the Effective
Time (which written consent makes specific reference to this Section
3.5(c)), the LLC shall not (nor shall any Controlled Affiliate of the LLC)
incur (and the Employee Stockholders shall use their reasonable best
efforts to prevent the LLC (or any Controlled Affiliate thereof) from
incurring) any expenses, obligations or other costs, or take any action to
incur any expenses, obligations or other costs, which expenses,
obligations and other costs in the aggregate (i) exceed the ability of the
LLC to pay or provide for them out of the Operating Allocation on a
current or previously reserved basis, or (ii) exceed, for any period, an
amount equal to ninety and nine-tenths percent (90.9%) of the positive
difference (if any) between (A) the "Operating Allocation" of the WY LLC
(as such term is defined in the WY LLC Agreement) minus (B) the aggregate
expenses, obligations and other costs of the WY LLC and its Controlled
Affiliates during such period (excluding Services Payments required to be
made by the WY LLC to the LLC in respect of such period). Except to the
extent otherwise required by applicable law, the LLC (and any Controlled
Affiliates thereof) shall only make payments of compensation (including
bonuses) to employees (including the Officers and the Employee
Stockholders) out of the balance of the Operating Allocation remaining
after the payment (or reservation for payment) of all the other expenses,
obligations, expenditures and other costs for the applicable period. Any
excess of the Operating Allocation remaining for any fiscal year following
the payment (or reservation for payment) of all expenses, obligations and
other costs (including any such amount established as a reserve in a prior
period that is reasonably determined by the Management Committee to have
been in excess of what was necessary for such reserve) may be used by the
LLC in such fiscal year or, if not so used, shall be automatically
reserved (without any action being required by any Person) for use in
future fiscal years in accordance with this Section 3.5(c) (in each case
subject to the limitation set forth in clause (ii) of the second preceding
sentence above). To the extent cash is available therefor at the LLC or
any of its Controlled Affiliates and is necessary for the operation of the
business of the WY LLC and its Controlled Affiliates or to fund
distributions required to be made to the members of the WY LLC by the
provisions of Section 4.3(a) of the WY LLC Agreement, the Non-Manager
Members shall (as a priority over any distributions otherwise required or
permitted to be made to the Members hereunder) cause the LLC (and, to the
extent necessary therefor, cause any Controlled Affiliates of the LLC to
distribute such cash to the LLC) to lend such cash to the WY LLC pursuant
to a Working Capital Loan from the LLC to the WY LLC.
For purposes of this Agreement (and notwithstanding any contrary treatment
required by the LLC or AMG for financial reporting purposes), (i) any business
expenses or other costs of the LLC (or any Controlled Affiliate thereof) to the
extent paid utilizing funds provided to the LLC by FAI, FAID, either of the
Charities or any of the Management Owners by reason of indemnification
obligations under the Purchase Agreement or the Management Owner Purchase
Agreement (as applicable) (including without limitation pursuant to one of the
offset
30
mechanisms specified in Section 13 of the Purchase Agreement or Section 10 of
the Management Owner Purchase Agreement resulting in such funds being retained
by the LLC) shall be deemed not to be paid for from the Operating Allocation
(and if previously so paid or reserved for, such calculation and treatment shall
be reversed) and shall be deemed not to be business expenses or other costs of
the LLC (or any Controlled Affiliate thereof) for purposes of the required uses
of the Operating Allocation pursuant to the provisions of this Agreement, and
(ii) such funds provided to the LLC by any of the foregoing Persons shall be
deemed an adjustment to the "Purchase Price" under the Purchase Agreement or the
"Minority Purchase Price" under the Management Owner Purchase Agreement (as
applicable) and a corresponding Capital Contribution to the LLC by the Manager
Member, and shall not be deemed Revenues From Operations hereunder or constitute
income or gain of the LLC.
(d) The LLC shall not (nor shall any Controlled Affiliate of
the LLC) do or commit to do, and the Employee Stockholders and Non-Manager
Members shall use their reasonable best efforts to prevent the LLC (or any
Controlled Affiliate thereof) from doing or committing to do (including
without limitation by not taking any such action in their capacity as
Officers of the LLC), any of the following without the prior written
consent of the Manager Member granted after the Effective Time (which
written consent makes specific reference to this Section 3.5(d)):
(i) enter into, amend, modify or terminate any contract,
agreement or understanding (written or oral) if such action or the
resulting contract, agreement or understanding could reasonably be
expected to conflict with the provisions of this Section 3.5;
(ii) enter into, amend, modify or terminate any contract,
agreement or understanding (written or oral) if such action or the
resulting contract, agreement or understanding (individually or in
the aggregate) would reasonably be expected to have a material
adverse impact on the availability of the Operating Allocation in
future periods (including, without limitation, long-term leases or
employment contracts);
(iii) enter into, amend, modify or terminate any contract,
agreement or understanding (written or oral) if such action or the
resulting contract, agreement or understanding has the effect of
creating a Lien upon any of the assets of the LLC (other than Liens
securing indebtedness of the LLC incurred to finance the acquisition
of fixed or capital assets (whether pursuant to a deferred purchase
agreement with a vendor, a loan, a financing lease or otherwise),
provided that (A) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(B) such Liens do not at any time encumber any property other than
property financed by such indebtedness, (C) the amount of
indebtedness secured thereby is not thereafter increased and (D) the
principal amount of indebtedness secured by such Lien shall at no
time exceed the purchase price of such property) or upon any portion
of the Owners' Allocation;
(iv) take any action (or omit to take any action) if such
action (or omission) would reasonably be expected to result in the
termination of the
31
employment by the LLC of any Employee Stockholder as a result of a
material reduction in his or her compensation, responsibilities or
other material aspects of his or her employment conditions (other
than any termination For Cause or Unsatisfactory Performance),
provided that the foregoing shall not impose any limitation on the
ability of an Employee Stockholder to terminate his or her
employment with the LLC in accordance with the provisions hereof and
any applicable Employment Agreement and shall not require the LLC to
pay increased compensation to retain the services of any Employee
Stockholder;
(v) create, incur, assume, or suffer to exist any
Indebtedness, other than (A) Indebtedness (I) incurred to finance
the acquisition of fixed or capital assets (whether pursuant to a
deferred purchase arrangement with a vendor, a loan, a financing
lease or otherwise) at any time not to exceed $350,000 in the
aggregate outstanding (including any then-outstanding Indebtedness
of the WY LLC and its Controlled Affiliates) and (II) that consists
of obligations to be repaid solely out of Operating Allocation and
(B) Working Capital Loans otherwise permitted or required by the
terms of this Agreement;
(vi) establish or modify any material compensation arrangement
(other than salary and cash bonuses in the ordinary course) or
program (whether cash or non-cash benefits) applicable to any
employee, in any such case which is subject to ERISA, which requires
qualification under the Code, or which otherwise (A) requires the
Manager Member (other than in its capacity as Manager Member) or any
of its Affiliates to take any action which it would not take but for
the establishment or modification of such compensation arrangement
or program or (B) prevents the Manager Member or any of its
Affiliates from taking any action which it would otherwise have been
able to take but for the establishment or modification of such
compensation arrangement or program (and the Management Committee
shall give the Manager Member not less than thirty (30) days prior
written notice before the LLC (or any Controlled Affiliate thereof)
establishes or modifies any material compensation arrangement (other
than salary and cash bonuses in the ordinary course) or program);
(vii) enter into, amend, modify or terminate any contract,
agreement or understanding (written or oral) (A) containing
severance or termination payment arrangements, other than severance
or termination payment arrangements with bona fide employees of the
LLC or its Controlled Affiliates (other than any Employee
Stockholder or Non-Manager Member or an Immediate Family member
thereof) which do not exceed $250,000 individually to any one such
employee or represent potential liabilities at any one time
outstanding (taking into account such contract, agreement or
understanding and all other such contracts, agreements and
understandings of the LLC, the WY LLC and their respective
Controlled Affiliates then in effect) in excess of $1,000,000 in the
aggregate, (B) which could reasonably be expected to cause the
Manager Member or any of its Affiliates to be liable for termination
or severance payments or other contractual payments upon a
termination of any employee's employment with the LLC (or any
Controlled Affiliate thereof) or (C) which is with an Employee
Stockholder, a
32
Non-Manager Member, an Affiliate of an Employee Stockholder or a
Non-Manager Member, or a partner, shareholder, director, officer,
employee or Immediate Family Member of any of the foregoing;
(viii) (A) enter into any line of business other than the
provision of Investment Management Services, (B) acquire, form or
otherwise establish any subsidiary or Controlled Affiliate of the
LLC or otherwise make any investment (other than cash management
activities in the ordinary course of business) in, or otherwise
conduct business through, any other Person, (C) acquire any material
assets or other properties, other than capital expenditures made out
of Operating Allocation in the ordinary course of business
consistent with past practice and not involving the acquisition of
any Person as a going concern, (D) sell, transfer or otherwise
dispose of any material assets or other properties, other than sales
of worn-out or obsolete equipment made in the ordinary course of
business consistent with past practice, or (E) permit any of the
Employee Stockholders, Non-Manager Members or Immediate Family
members of any of the foregoing (or any Affiliate of any such
Person) to have a direct or indirect economic interest in any
collective investment vehicle or other product sponsored or
otherwise managed by the LLC or any of its Controlled Affiliates
(other than as a result of the economic interests of the LLC and its
Controlled Affiliates in such collective investment vehicle or other
product, and other than bona fide investments made by any such
Person in any such collective investment vehicle or other product);
(ix) (A) make any change in the Certificate (or the
constituent documents of any Controlled Affiliate of the LLC),
modify, amend or terminate, or otherwise waive or fail to diligently
enforce any rights under, the Services Agreement, or fail to make
any reimbursements of previous payments if due under the terms of
the Services Agreement, (B) authorize or issue any membership or
other equity or ownership interests or other securities of any type
of the LLC (or any Controlled Affiliate thereof), (C) repurchase,
redeem or otherwise acquire any outstanding membership or other
equity or ownership interests or other securities of the LLC (or any
Controlled Affiliate thereof), (D) make any dividend or other
distribution in respect of its membership or other equity or
ownership interests (other than as expressly required by other
provisions of this Agreement), (E) settle or compromise any material
litigation, arbitration, investigation, audit or other proceeding,
(F) terminate its existence or voluntarily file for or otherwise
commence proceedings with respect to bankruptcy, reorganization,
receivership or similar status, (G) except to the extent any of the
following actions described in this clause (G) (I) relate solely to
a tax period ending on or prior to the Effective Time and (II) would
not have an adverse effect (economic or otherwise) on any Person who
became a Member at the Effective Time or at any time thereafter or
otherwise affect tax periods commencing on or after the Effective
Time, make or change any tax election, waive or extend the statute
of limitations in respect of taxes, amend any tax return, enter into
any closing agreement with respect to taxes, settle any tax claim or
assessment or surrender any right to a claim for a tax refund, (H)
change any method or principle of accounting in a manner
inconsistent with past practice or change
33
regular independent accountants, (I) cause or permit the LLC or any
Controlled Affiliate thereof at any time to have any source of gross
revenues other than Services Payments and income received in respect
of balances maintained by the LLC or any Controlled Affiliate
thereof in short-term, high quality investment accounts or bank
accounts, (J) materially change or otherwise modify the scope of the
business functions and other activities conducted by the LLC and its
Controlled Affiliates in the State of Delaware from those conducted
by the LLC and its Controlled Affiliates in the State of Delaware as
of immediately following the Effective Time, cease to do business in
the State of Delaware or transfer any Employee Stockholder who is a
party to an Employment Agreement out of the State of Delaware, or
(K) make any loan or advance to any Person, other than advances of
business expenses and Working Capital Loans in the ordinary course
of business consistent with past practice;
(x) voluntarily terminate any investment advisory agreement
with (or otherwise relating to) a Client that is a registered
investment company (or series thereof) (unless, in the joint written
determination of the Management Committee and the Manager Member
following the Effective Time, such termination is in the best
interests of the LLC); or
(xi) (A) take any action which pursuant to any provision of
this Agreement (other than Section 3.1) may be taken only by the
Manager Member with or without the consent of the Non-Manager
Members or the Employee Stockholders, or (B) take any action which
requires the approval or consent of the Manager Member pursuant to
any provision of this Agreement.
(e) The LLC (and each Controlled Affiliate thereof) shall
maintain (and the Employee Stockholders and Non-Manager Members shall use
their reasonable best efforts to cause the LLC (and each Controlled
Affiliate thereof) to maintain), in full force and effect, such insurance
as is customarily maintained by companies of similar size in the same or
similar businesses (including, without limitation, errors and omissions
liability insurance), the premiums on which will be paid out of the
Operating Allocation (and the beneficiary of which shall be the LLC and/or
its applicable Controlled Affiliates, as applicable); PROVIDED, HOWEVER,
that this sentence shall not require the LLC or any Controlled Affiliate
thereof to maintain key-man life or disability insurance policies. In the
event that the Manager Member or any of its Affiliates shall determine (at
its own expense) to maintain separate key-man life and/or disability
insurance policies with respect to any Employee Stockholder (of which the
Manager Member or any of its Affiliates may be the beneficiary), and in
connection with any such policies maintained by the LLC for its own
benefit, such Employee Stockholder shall cooperate with the Manager
Member, its Affiliates and the LLC (as applicable) in connection with
obtaining and maintaining such insurance policies (including without
limitation by submitting to any customary examinations and truthfully
answering any questions asked by the insurer in connection with obtaining
such policies).
(f) In addition to, and not in limitation of, the Manager
Member's powers and authority under this Agreement (including, without
limitation, pursuant to
34
Section 3.1(a) hereof), the Manager Member shall also have the power
(after consultation with the Management Committee, to the extent
practicable), whether or not they involve day-to-day operations, business
and activities of the LLC (or any Controlled Affiliate thereof), to take
any or all of the following actions:
(i) such actions as it deems necessary or appropriate to cause
the LLC or, insofar as it is within the power and authority of the
LLC, any Controlled Affiliate of the LLC, or any officer, employee,
member, partner, or agent thereof, to comply with all laws, rules
and regulations applicable to such Person in connection with the
businesses and other activities of the LLC, the WY LLC and their
respective Affiliates;
(ii) such actions as it deems necessary or appropriate to
cause the LLC to fulfill its obligations and exercise its rights
under the Purchase Agreement and this Agreement; and
(iii) any other action necessary or appropriate to prevent
actions that require the Manager Member's consent pursuant to the
terms of this Agreement if such consent has not then been given.
(g) Notwithstanding any of the provisions of this Agreement to
the contrary, all accounting, financial reporting and bookkeeping
procedures of the LLC (and any Controlled Affiliates thereof) shall be
established in conjunction with policies and procedures determined under
the supervision of the Manager Member and in a manner consistent with the
corresponding policies and procedures of the WY LLC. The Management
Committee shall have a continuing obligation to keep AMG's chief financial
officer informed of material financial developments with respect to the
LLC (and any Controlled Affiliates thereof). Notwithstanding any other
provisions of this Agreement to the contrary, all legal, compliance and
regulatory matters of the LLC (and any Controlled Affiliates thereof)
shall be coordinated with the Manager Member and AMG, and the LLC's (and
any of its Controlled Affiliates') legal compliance activities shall be
conducted and established in conjunction with policies and procedures
determined under the supervision of the Manager Member to the extent such
policies and procedures are consistent with "best practices" in the
investment management industry (and in a manner consistent with the
corresponding activities of the WY LLC).
(h) Each Employee Stockholder and Non-Manager Member covenants
and agrees that such Employee Stockholder or Non-Manager Member, as the
case may be, will at all times conduct its activities in connection with
the LLC and the WY LLC (and any Controlled Affiliates thereof), and any
services provided to the LLC or the WY LLC (or to any Controlled
Affiliates thereof), in accordance with all applicable laws, rules and
regulations, and that it will use its reasonable best efforts (i) to
ensure that the business and activities of the LLC and the WY LLC (and any
Controlled Affiliates thereof) are conducted in compliance with all
applicable laws, rules and regulations in all material respects and (ii)
to preserve the goodwill and franchise value of the LLC and the WY LLC
(and any Controlled Affiliates thereof).
35
(i) Notwithstanding any of the provisions of this Agreement to
the contrary, the Manager Member shall have the power to establish and
mandate that the LLC (and any of its Controlled Affiliates) participate in
employee benefit plans which are subject to ERISA or require qualification
under Section 401 of the Internal Revenue Code to the extent necessary in
order to make the expenses of any such plan(s) deductible or otherwise to
comply with ERISA or the Code, and may establish or modify the terms of
any such plan to the extent necessary in connection therewith (to the
extent that such terms are required by law or necessary to make such
expenses deductible or to comply with ERISA or the Code), provided that
any such action taken by the Manager Member shall treat the Affiliates of
the Manager Member subject to such action in an equitable manner (i.e., a
manner not materially more disadvantageous to one Affiliate than to other
Affiliates of the Manager Member) to the extent permissible under ERISA
and the Code and consistent with achieving tax deductibility.
(j) Notwithstanding any other provisions of this Agreement to
the contrary, the Management Committee, each Employee Stockholder and each
Non-Manager Member shall cooperate with the Manager Member and its
Affiliates in implementing any initiative generally involving the LLC
(and/or any Controlled Affiliates thereof) and a number of such
Affiliates, but only on such terms and conditions as the participation of
the LLC (and any Controlled Affiliates thereof) in such initiative has
been approved by the Management Committee.
(k) Notwithstanding any other provisions of this Agreement to
the contrary (and in addition to the separate approval of the Management
Committee with respect thereto, to the extent such Management Committee
approval is required by other provisions of this Agreement), any (i)
voluntary liquidation of the LLC, (ii) sale, exchange or other disposition
of all, or a substantial portion of, the assets of the LLC and its
Controlled Affiliates, or (iii) Transfer by the Manager Member of all its
interests in the LLC in a single transaction or series of related
transactions (subject to the same exceptions set forth in the proviso to
the first paragraph of Section 6.1 hereof), shall require a majority vote
of all Members holding LLC Points, with each LLC Point (regardless of
whether such LLC Point is a Series A LLC Point or a Series B LLC Point)
being counted equally in such vote.
(l) Each Employee Stockholder that serves as a member of the
Management Committee (for so long as such Employee Stockholder serves as a
member of the Management Committee) agrees to use its reasonable best
efforts (to the extent within his or her power to do so) to cause the
following to be true regarding each Mutual Fund (other than a Subadvised
Fund) (each as defined in the Purchase Agreement): (i) For a period of not
less than three years following the Effective Time, no more than
twenty-five percent (25%) of the members of the board of directors of such
Mutual Fund shall be "interested persons" (as defined in the Investment
Company Act of 1940) of AMG, FAI, FAID, the LLC or the WY LLC; and (ii)
for a period of not less than two years following the Effective Time, the
LLC shall not have any express or implied understanding, arrangement or
intention to impose an "unfair burden" (as defined in the Investment
Company Act of 1940) on such Mutual Fund as a result of the transactions
contemplated by the Purchase Agreements.
36
SECTION 3.6. COMPENSATION AND EXPENSES OF THE MEMBERS. The Manager Member
may receive compensation for services provided to the LLC (or any Controlled
Affiliate thereof) only to the extent approved by the Management Committee. The
LLC shall, however, pay and/or reimburse the Manager Member for extraordinary
expenses reasonably incurred by the Manager Member or AMG directly in connection
with the operation of the LLC (and any Controlled Affiliates thereof). It is
expressly understood by the parties hereto that the Manager Member's general
overhead items and expenses (including, without limitation, salaries, rent and
travel expenses) shall not be reimbursed by the LLC. Stockholders, officers,
directors, Members and agents of Members may serve as employees of the LLC (or
any Controlled Affiliate thereof) and be compensated therefor out of the
Operating Allocation as determined by the Management Committee (or its
delegate(s)) pursuant to Section 3.5(c). Except in respect of their provision of
services as employees of the LLC (or any Controlled Affiliate thereof) for which
they may be compensated out of the Operating Allocation as contemplated by the
preceding sentence, Employee Stockholders, Non-Manager Members and members of
their Immediate Family may not receive compensation on account of the provision
of services to the LLC (or any Controlled Affiliate thereof).
SECTION 3.7. OTHER BUSINESS OF THE MANAGER MEMBER AND ITS AFFILIATES. The
Manager Member, AMG and their respective Affiliates may engage, independently or
with others, in other business ventures of every nature and description,
including the acquisition, creation, financing, trading in, and operation and
disposition of interests in, investment managers and other businesses that may
be competitive with the LLC's (or any of its Controlled Affiliates') business.
Neither the LLC (or any Controlled Affiliate thereof) nor any of the Employee
Stockholders or Non-Manager Members shall have any right in or to any other such
ventures by virtue of this Agreement or the limited liability company created or
continued hereby, nor shall any such activity by the Manager Member, AMG or such
Affiliates in and of itself be deemed wrongful or improper or result in any
liability of the Manager Member, AMG or such Affiliates. None of the Manager
Member, AMG or any of their Affiliates shall be obligated to present any
opportunity to the LLC (or any Controlled Affiliate thereof) even if such
opportunity is of such a character which, if presented to the LLC (or a
Controlled Affiliate thereof), would be suitable for the LLC (or such a
Controlled Affiliate thereof). Neither the Manager Member nor AMG shall disclose
any Intellectual Property owned or used in the course of business by the LLC (or
any Controlled Affiliate thereof) to any Person, including, without limitation,
any other of their Affiliates, and each of the Manager Member and AMG agrees
always to keep secret and not ever to publish, divulge, furnish, use or make
accessible to anyone any Intellectual Property that is not otherwise publicly
available (other than as a result of a breach of the provisions of this Section
3.7), in each case other than in connection with the conduct of the business of
the LLC and its Controlled Affiliates, as required by court order or by law or
in connection with the enforcement of this Agreement or the Purchase Agreement.
SECTION 3.8. NON-MANAGER MEMBERS AND NON-SOLICITATION AGREEMENTS. Each
Employee Stockholder as of the Effective Time and, if there is one, the
Non-Manager Member of which it is a stockholder (its Non-Manager Member), has
provided the LLC with either (a) an Employment Agreement or (b) a
Non-Solicitation Agreement that is in full force and effect as of the Effective
Time. Any substitute Non-Manager Member (pursuant to Section 5.2 hereof) or
Additional Non-Manager Member (as defined in Section 5.5 hereof), as well as any
Employee Stockholder related thereto, which is not already bound by an
Employment Agreement or a Non-
37
Solicitation Agreement at the time it becomes a substitute Non-Manager Member,
Additional Non-Manager Member or Employee Stockholder, as applicable, shall,
prior to and as a condition precedent to becoming a Non-Manager Member or
Employee Stockholder (as applicable), provide the LLC with an agreement that is
substantially identical to the form of Non-Solicitation Agreement attached
hereto as EXHIBIT B (together with any changes or modifications thereto as the
Manager Member may deem necessary or desirable at such time) (which shall
thereafter be deemed a "Non-Solicitation Agreement" hereunder), and such
agreements shall, at all times, provide that each of the LLC and the Manager
Member shall be entitled to enforce the provisions of such agreements on its own
behalf and that the Management Committee or the Manager Member shall be entitled
to enforce the provisions of such agreements on behalf of the LLC. At the time
any purchaser of Purchase Program Points pursuant to the Equity Purchase Program
becomes a Member of the LLC, the Manager Member and AMG shall enter into with
such purchaser (if such purchaser is not already a party to such an agreement
with the Manager Member) an agreement that is substantially identical to a
Make-Whole Bonus Agreement in the form attached hereto as Exhibit D, unless the
Manager Member and the Management Committee shall otherwise agree in writing.
SECTION 3.9. NON-SOLICITATION AND NON-DISCLOSURE BY NON-MANAGER MEMBERS
AND EMPLOYEE STOCKHOLDERS.
(a) Each Non-Manager Member and each Employee Stockholder
agrees, for the benefit of the LLC, the other Members and their respective
Affiliates, that such Non-Manager Member or Employee Stockholder (as the
case may be) shall not, while employed by the LLC or any of its
Affiliates, engage in any Prohibited Competition Activity.
(b) In addition to, and not in limitation of, the provisions
of Section 3.9(a) hereto, each Non-Manager Member and each Employee
Stockholder agrees, for the benefit of the LLC, the other Members and
their respective Affiliates, that such Non-Manager Member or Employee
Stockholder (as the case may be) shall not, during the period beginning on
the date such Non-Manager Member becomes a Non-Manager Member or Employee
Stockholder becomes an Employee Stockholder (as applicable), and until the
date which is two (2) years after the termination of such Non-Manager
Member's status as a Non-Manager Member or Employee Stockholder's
employment with the LLC and all of its Affiliates (as applicable) (unless
a shorter period is agreed to by the Manager Member, the Management
Committee and the Employee Stockholder or Non-Manager Member (as
applicable) in writing following the Effective Time), without the express
written consent of the Manager Member and the Management Committee granted
after the Effective Time, directly or indirectly, whether as owner,
part-owner, shareholder, partner, member, director, officer, trustee,
employee, agent or consultant, or in any other capacity, on behalf of
itself or any firm, corporation or other business organization other than
the LLC, the WY LLC and their Controlled Affiliates:
(i) provide Investment Management Services to any Person that
is a Past, Present or Potential Client; PROVIDED, HOWEVER, that this
clause (i) shall not be applicable to Clients (including Potential
Clients) who are also members of the
38
Immediate Family of the Employee Stockholder or Non-Manager Member
(as the case may be);
(ii) solicit or induce, whether directly or indirectly, any
Person for the purpose (which need not be the sole or primary
purpose) of (A) causing any funds (other than funds of which such
Employee Stockholder or Non-Manager Member and/or members of its
Immediate Family are the sole beneficial owners, subject to any
applicable restrictions relating thereto set forth in the Purchase
Agreement) with respect to which the LLC, the WY LLC or any of their
respective Controlled Affiliates provides Investment Management
Services to be withdrawn from such management, or (B) causing any
Client (including any Potential Client) not to engage the LLC, the
WY LLC or any of their respective Controlled Affiliates to provide
Investment Management Services for any additional funds PROVIDED,
HOWEVER, that this clause (ii)(B) shall not be applicable to Clients
(including Potential Clients who are also members of the Immediate
Family of the Employee Stockholder or Non-Manager Member;
(iii) contact or communicate with, whether directly or
indirectly, any Past, Present or Potential Clients in connection
with Investment Management Services; PROVIDED, HOWEVER, that this
clause (iii) shall not be applicable to Clients (including Potential
Clients) who are also members of the Immediate Family of the
Employee Stockholder or Non-Manager Member; or
(iv) (A) solicit or induce, or attempt to solicit or induce,
directly or indirectly, any employee or agent of, or consultant to,
the LLC, the WY LLC or any of their respective Controlled Affiliates
to terminate its, his or her relationship therewith, (B) hire any
employee, external researcher or similar agent or consultant, or
former employee, external researcher or similar agent or consultant,
of the LLC, the WY LLC or any of their respective Controlled
Affiliates who was employed by or acted as an external researcher or
similar agent or consultant of the LLC or the WY LLC (or either of
their predecessors, FAID and FAI or any predecessor thereto) or
their respective Controlled Affiliates at any time during the two
(2) year period preceding such hiring of such Person, or (C) work in
any enterprise involving Investment Management Services with any
employee, external researcher or similar agent or consultant, or
former employee, external researcher or similar agent or consultant,
of the LLC, the WY LLC or any of their respective Controlled
Affiliates who was employed by or acted as such an agent or
consultant to the LLC or the WY LLC (or either of their
predecessors, FAID and FAI or any predecessor thereto) or their
respective Controlled Affiliates at any time during the two (2) year
period preceding the termination of the Employee Stockholder's
employment or Non-Manager Member's status as a member of the LLC, as
applicable (excluding for all purposes of this sentence, secretaries
and persons holding other similar positions);
PROVIDED, HOWEVER, that this Section 3.9(b) shall not prohibit any firm,
corporation or other business organization of which such Non-Manager Member or
Employee Stockholder (as applicable) is an employee (but of which he or she is
not a holder of any equity or other
39
ownership interests therein, other than holdings of publicly traded stock which
(in the aggregate with the holdings of his or her Affiliates and Immediate
Family members) constitute less than five percent (5%) of the outstanding stock
of such entity) from engaging in such activities so long as such Non-Manager
Member or Employee Stockholder can affirmatively demonstrate that he or she did
not cause or induce such activities, has no participation or other involvement
in such activities whatsoever and does not assist or facilitate in such
activities in any manner (whether through the provision of information or
otherwise); and PROVIDED, FURTHER, that Section 3.9(b)(iv)(C) shall not prohibit
a Non-Manager Member or Employee Stockholder (as applicable) from working at any
firm, corporation or other business organization of which such Non-Manager
Member or Employee Stockholder (as applicable) is an employee (but of which he
or she is not a holder of any equity or other ownership interests therein, other
than holdings of publicly traded stock which (in the aggregate with the holdings
of his or her Affiliates and Immediate Family members) constitute less than five
percent (5%) of the outstanding stock of such entity) provided that (I) such
firm, corporation or other business organization has at least one hundred (100)
employees as of the date such Non-Manager Member or Employee Stockholder (as
applicable) becomes an employee thereof and (II) such Non-Manager Member or
Employee Stockholder can affirmatively demonstrate that he or she does not
personally work (directly or indirectly) with any employee, external researcher
or similar agent or consultant (or former employee, external researcher or
similar agent or consultant) described in Section 3.9(b)(iv)(C).
For purposes of this Section 3.9(b), (x) the term "Past Client" shall be
limited to those Past Clients who were recipients of Investment Management
Services from the LLC or the WY LLC (including either of their predecessors, FAI
and FAID or any predecessor thereto) and/or their respective Controlled
Affiliates at the date of termination of the Employee Stockholder's employment
or Non-Manager Member's status as a member of the LLC (as applicable) or at any
time during the two (2) years immediately preceding the date of such termination
and (y) the term "Potential Client" shall be limited to those Persons to whom an
offer (as described in the definition of "Potential Client") to provide
Investment Management Services was made within two (2) years prior to the date
of termination of the Employee Stockholder's employment or Non-Manager Member's
status as a member of the LLC (as applicable).
Notwithstanding the provisions of Sections 3.9(a) and 3.9(b), any Employee
Stockholder may make passive personal investments in any enterprise (including,
without limitation, any enterprise which is competitive with AMG, the LLC or the
WY LLC) the shares or other equity interests of which are publicly traded,
provided his holding therein together with any holdings of his Affiliates and
members of his Immediate Family, are less than five percent (5%) of the
outstanding shares or comparable interests in such entity.
(c) Each Member and each Employee Stockholder agrees that any
and all presently existing investment advisory businesses of the LLC, the
WY LLC and their respective Controlled Affiliates (including business of
either of their predecessors, FAI and FAID, or any predecessor thereto),
and all businesses developed by the LLC, the WY LLC, any of their
respective Controlled Affiliates or any predecessor thereto, including by
such Employee Stockholder or any other employee of the LLC, the WY LLC or
any of their respective Controlled Affiliates or any predecessor thereto,
including without limitation, all investment methodologies, all investment
advisory contracts, fees and fee
40
schedules, commissions, records, data, client lists, agreements, trade
secrets, and any other incident of any business developed by the LLC, the
WY LLC, their respective Controlled Affiliates or any predecessor thereto,
or earned or carried on by the Employee Stockholder for the LLC, the WY
LLC, any of their respective Controlled Affiliates or any predecessor
thereto, and all trade names, service marks and logos under which the LLC,
the WY LLC or their respective Controlled Affiliates (or any predecessor
thereto) do or have done business, and any combinations or variations
thereof and all related logos, are and shall be the exclusive property of
the LLC, the WY LLC or such Controlled Affiliate, as applicable, for its
or their sole use, and (where applicable) shall be payable directly to the
LLC, the WY LLC or such Controlled Affiliate (as applicable). In addition,
each Member and each Employee Stockholder acknowledges and agrees that the
investment performance of the accounts managed by the LLC, the WY LLC or
any Controlled Affiliate of either of them (or any predecessor thereto,
including without limitation FAID or FAI, and any predecessors thereto)
was attributable to the efforts of the team of professionals of the LLC,
the WY LLC, such Controlled Affiliate or such predecessor thereto, and not
to the efforts of any single individual or subset of such team of
professionals, and that therefore, the performance records of the accounts
managed by the LLC, the WY LLC or any of their respective Controlled
Affiliates (or any predecessor to any of them) are and shall be the
exclusive property of the LLC, the WY LLC or such Controlled Affiliate, as
applicable (and not of any other Person or Persons).
(d) Each Non-Manager Member and each Employee Stockholder
acknowledges that, in the course of performing services hereunder and
otherwise (including, without limitation, for the LLC's and the WY LLC's
predecessors, FAID and FAI or any predecessor thereto), such Member or
Employee Stockholder (as applicable) has had, and will from time to time
have, access to information of a confidential or proprietary nature,
including without limitation, all confidential or proprietary investment
methodologies, trade secrets, proprietary or confidential plans, client
identities and information, client lists, service providers, business
operations or techniques, records and data ("Intellectual Property") owned
or used in the course of business by the LLC, the WY LLC or their
respective Controlled Affiliates. Each Non-Manager Member and each
Employee Stockholder agrees always to keep secret and not ever publish,
divulge, furnish, use or make accessible to anyone (otherwise than in the
regular business of the LLC, the WY LLC and their respective Controlled
Affiliates or as required by court order or by law (after consultation
with outside counsel)) any Intellectual Property of the LLC, the WY LLC or
any Controlled Affiliate of either of them unless such information can be
shown to be publicly available other than by reason of a breach of this
Section 3.9 by such Non-Manager Member or Employee Stockholder (as
applicable). At the termination of the Employee Stockholder's services to
the LLC, the WY LLC and their respective Controlled Affiliates or the
Non-Manager Member's status as a member of the LLC and the WY LLC (as
applicable), all data, memoranda, client lists, notes, programs and other
papers, items and tangible media, and reproductions thereof relating to
the foregoing matters in the Non-Manager Member's or Employee
Stockholder's possession or control, shall be returned to the LLC or the
WY LLC and remain in its possession. The Management Committee shall ensure
that any Person who becomes a Non-Manager Member of the LLC or the WY LLC,
or who acquires a beneficial interest in an entity which is a Non-Manager
Member of the LLC or the WY LLC, and has not entered into a
41
Non-Solicitation Agreement, shall not be provided access to any
confidential or proprietary information of the LLC, the WY LLC or any of
their respective Controlled Affiliates (except to the extent as may be
otherwise required by applicable law).
(e) Each Non-Manager Member and each Employee Stockholder
acknowledges that, in the course of entering into this Agreement, the
Non-Manager Member or Employee Stockholder (as applicable) has had and, in
the course of the operation of the LLC, the WY LLC and any Controlled
Affiliates thereof, the Non-Manager Member or Employee Stockholder will
from time to time have, access to Intellectual Property owned by or used
in the course of business by AMG. Each Non-Manager Member and each
Employee Stockholder agrees, for the benefit of the LLC, the WY LLC and
their Members, and for the benefit of the Manager Member and AMG, always
to keep secret and not ever publish, divulge, furnish, use or make
accessible to anyone (otherwise than at the Manager Member's request or as
required by court order or by law (after consultation with outside
counsel)) any knowledge or information regarding Intellectual Property
(including, by way of example and not of limitation, the transaction
structures utilized by AMG) of AMG unless such information can be shown to
be publicly available other than by reason of a breach of this Section 3.9
by such Non-Manager Member or Employee Stockholder (as applicable). At the
termination of the Employee Stockholder's service to the LLC, the WY LLC
and their respective Controlled Affiliates or the Non-Manager Member's
status as a member of the LLC and the WY LLC (as applicable), all data,
memoranda, documents, notes and other papers, items and tangible media,
and reproductions thereof relating to the foregoing matters in the
Non-Manager Member's or Employee Stockholder's possession or control shall
be returned to AMG and remain in its possession.
(f) The provisions of this Section 3.9 shall not be deemed to
limit any of the rights of the LLC, the WY LLC or the Members under any of
the Employment Agreements or Non-Solicitation Agreements or under
applicable law, but shall be in addition to the rights set forth in each
of the Employment Agreements and Non-Solicitation Agreements, and those
which arise under applicable law.
(g) Notwithstanding the foregoing provisions of this Section
3.9, the application of this Section 3.9 to any Non-Manager Member or
Employee Stockholder may be modified or waived by a writing executed by
the Manager Member and such Non-Manager Member or Employee Stockholder (as
applicable) following consultation with the Management Committee.
SECTION 3.10. REMEDIES UPON BREACH.
(a) In the event that a Non-Manager Member or its related
Employee Stockholder (i) breaches any of the provisions of Section 3.9
hereof (or otherwise violates any of the stated terms of any such
provisions), (ii) breaches any of the provisions of Section 3.9 of the WY
LLC Agreement (or otherwise violates any of the stated terms of any such
provisions), or (iii) breaches any of the non-competition or
non-solicitation provisions of the Employment Agreement or
Non-Solicitation Agreement to which it or he is a party (or otherwise
violates any of the stated terms of any such provisions) (in
42
each such case, including without limitation following the termination of
his or her employment with the LLC and its Affiliates), and in any such
case such breach or violation has resulted or is reasonably likely to
result in harm that is not immaterial or insignificant to (x) AMG or any
of its Controlled Affiliates (other than the LLC, the WY LLC and their
respective Controlled Affiliates), or (y) the LLC, the WY LLC and their
respective Controlled Affiliates (taken as a whole), then in any such case
(A) such Non-Manager Member shall forfeit its right to receive any payment
for its LLC Interests under Section 3.11 or Section 7.1 hereof, although
it shall cease to be a Non-Manager Member in accordance with the
provisions of Section 3.11 (PROVIDED that this clause (A) shall not apply,
at any time or under any circumstances, to Subsequent Purchase LLC
Points), (B) AMG (and any of its assignees thereunder) shall have no
further obligations under any promissory note theretofore issued to such
Non-Manager Member pursuant to Section 3.11, (C) the Manager Member (and
any of its assignees thereunder) shall have no further obligations under
any Contingent Consideration theretofore issued to such Non-Manager Member
pursuant to Section 3.11 or 7.1, and (D) the LLC shall be entitled to
withhold any other payments to which such Non-Manager Member or its
related Employee Stockholder otherwise would be entitled to offset damages
resulting from such breach; PROVIDED, HOWEVER, that the LLC shall not be
permitted to withhold any compensation, distribution or other payments
that such Non-Manager Member or its related Employee Stockholder is
otherwise entitled to receive out of the Operating Allocation or the
Owners' Allocation absent either an admission of such breach by such
Non-Manager Member or Employee Stockholder or the rendering of a
settlement, judgment or arbitral decision establishing such breach.
(b) Each Non-Manager Member and each Employee Stockholder
agrees that any breach of the provisions of Section 3.9 of this Agreement
or of the provisions of the Employment Agreement or Non-Solicitation
Agreement to which it is a party by such Non-Manager Member or Employee
Stockholder (as applicable) could cause irreparable damage to the LLC and
the other Members, and that the LLC (by action of the Management
Committee) and the Manager Member shall have the right to an injunction or
other equitable relief (in addition to other legal remedies) to prevent
any violation of a Member's or Employee Stockholder's obligations
hereunder or thereunder.
SECTION 3.11. PURCHASE PROVISIONS.
The Members of the LLC having agreed that it is in the best
interests of the LLC not to have ex-employees who were (or were related
persons of, as applicable) Non-Manager Members remain as Non-Manager
Members (or have their related Non-Manager Members remain as Non-Manager
Members, as applicable) following the termination of such employment,
therefore the Members agree among themselves as follows:
(a) In the event that an Employee Stockholder's employment (i)
by the LLC, if the LLC employs such Employee Stockholder, or (ii) by the
WY LLC, if the WY LLC employs such Employee Stockholder, in either case
terminates for any reason, then the Manager Member shall purchase, and
such Employee Stockholder (or the Non-Manager Member of which such
Employee Stockholder is an owner, if such
43
Employee Stockholder is not itself the Non-Manager Member) and each of its
Permitted Transferees (such selling Persons, collectively, a "Selling
Member") shall sell to the Manager Member (such purchases, collectively, a
"Purchase", and the LLC Interests purchased pursuant thereto,
collectively, the "Purchased Interest"), all of the LLC Interests held by
the Selling Member for the Purchase Price (as defined in Section 3.11(c)
hereof) and otherwise pursuant to the terms of this Section 3.11;
PROVIDED, HOWEVER, that, notwithstanding the fact that ▇▇▇▇▇▇ ▇▇▇▇▇▇'
employment by the LLC or the WY LLC (as applicable) has terminated for any
reason prior to the consummation of the Subsequent Purchase, the
Subsequent Purchase LLC Points shall not be purchased by the Manager
Member from FAID pursuant to this Section 3.11 (but, for the avoidance of
doubt, all of FAID's other LLC Interests shall be purchased in accordance
with the provisions of this Section 3.11, subject to the immediately
following proviso) until such time as it has become objectively
determinable that AMG will not be required to consummate the Subsequent
Purchase pursuant to Section 12 of the Purchase Agreement, at which time
the Subsequent Purchase LLC Points shall be purchased by the Manager
Member from FAID pursuant to this Section 3.11 (i) as if ▇▇▇▇▇▇ ▇▇▇▇▇▇'
employment by the LLC or the WY LLC (as applicable) had terminated on the
date it became objectively determinable that AMG would not be required to
consummate the Subsequent Purchase pursuant to Section 12 of the Purchase
Agreement and (ii) with the Purchase Price and manner of payment for the
purchase of the Subsequent Purchase LLC Points pursuant to this Section
3.11 to be determined based upon the manner in which ▇▇▇▇▇▇ ▇▇▇▇▇▇'
employment with the LLC or the WY LLC (as applicable) actually terminated;
and PROVIDED, FURTHER, that, notwithstanding the fact that ▇▇▇▇▇▇ ▇▇▇▇▇▇'
employment by the LLC or the WY LLC (as applicable) has terminated for any
reason prior to three (3) months after the tenth (10th) anniversary of the
Effective Time, any Series A LLC Points in the Purchase Reserve that
continue at that time to be held by FAID shall not be purchased by the
Manager Member from FAID pursuant to this Section 3.11 (but, for the
avoidance of doubt, all of FAID's other LLC Interests shall be purchased
in accordance with the provisions of this Section 3.11 (including without
limitation any Series B-1 LLC Points then held by FAID, whether or not in
the Purchase Reserve), subject to the immediately preceding proviso) until
three months after the tenth (10th) anniversary of the Effective Time, at
which time any remaining LLC Points in the Purchase Reserve that continue
at that time to be held by FAID shall be purchased by the Manager Member
from FAID pursuant to this Section 3.11(i) as if ▇▇▇▇▇▇ ▇▇▇▇▇▇' employment
by the LLC or the WY LLC (as applicable) had terminated three (3) months
after the tenth (10th) anniversary and (ii) with the Purchase Price and
manner of payment for the purchase of such LLC Points pursuant to this
Section 3.11 to be determined based upon the manner in which ▇▇▇▇▇▇
▇▇▇▇▇▇' employment with the LLC or the WY LLC (as applicable) actually
terminated;
and PROVIDED, FURTHER, that, solely in the event that ▇▇▇▇ ▇▇▇▇▇▇'▇ or
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇'▇ employment by the LLC or the WY LLC (as applicable) has
terminated as a result of such Employee Stockholder's Retirement on the
eleventh (11th) anniversary of the Effective Time, two-thirds of the
aggregate number of LLC Points held by such
44
applicable Designated Initial Member and its Permitted Transferees shall
not be purchased by the Manager Member from such Designated Initial Member
and its Permitted Transferees pursuant to this Section 3.11 in connection
with such Retirement (but, for the avoidance of doubt, all of such
Designated Initial Member's and its Permitted Transferees' other LLC
Interests shall be purchased in accordance with the provisions of this
Section 3.11 in connection with such Retirement) until the thirteenth
(13th) anniversary of the Effective Time, at which time all remaining LLC
Interests of such Designated Initial Member and its Permitted Transferees
shall be purchased by the Manager Member from such Designated Initial
Member and its Permitted Transferees pursuant to this Section 3.11 (to the
extent such LLC Interests have not previously been Put pursuant to Section
7.1 hereof) as if such applicable Employee Stockholder's employment by the
LLC or the WY LLC (as applicable) had terminated by reason of his
Retirement on the thirteenth (13th) anniversary of the Effective Time;
and PROVIDED, FURTHER, that, solely in the event that ▇▇▇▇ ▇▇▇▇▇▇'▇ or
▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇'▇ employment by the LLC or the WY LLC (as applicable) has
terminated as a result of such Employee Stockholder's Retirement on the
twelfth (12th) anniversary of the Effective Time, one-half of the
aggregate number of LLC Points held by such applicable Designated Initial
Member and its Permitted Transferees shall not be purchased by the Manager
Member from such Designated Initial Member and its Permitted Transferees
pursuant to this Section 3.11 in connection with such Retirement (but, for
the avoidance of doubt, all of such Designated Initial Member's and its
Permitted Transferees' other LLC Interests shall be purchased in
accordance with the provisions of this Section 3.11 in connection with
such Retirement) until the thirteenth (13th) anniversary of the Effective
Time, at which time all remaining LLC Interests of such Designated Initial
Member and its Permitted Transferees shall be purchased by the Manager
Member from such Designated Initial Member and its Permitted Transferees
pursuant to this Section 3.11 as if such applicable Employee Stockholder's
employment by the LLC or the WY LLC (as applicable) had terminated by
reason of his Retirement on the thirteenth (13th) anniversary of the
Effective Time;
and PROVIDED, FURTHER, that, solely in the event that ▇▇▇▇ ▇▇▇▇▇'
employment by the LLC or the WY LLC (as applicable) has terminated as a
result of such Employee Stockholder's Retirement prior to the fifth (5th)
anniversary of the Effective Time, the LLC Interests held by such Employee
Stockholder and his Permitted Transferees shall not be purchased by the
Manager Member pursuant to this Section 3.11 in connection with such
Retirement until the fifth (5th) anniversary of the Effective Time, at
which time all LLC Interests of such Employee Stockholder and his
Permitted Transferees shall be purchased by the Manager Member pursuant to
this Section 3.11 as if such applicable Employee Stockholder's employment
by the LLC or the WY LLC (as applicable) had terminated by reason of his
Retirement on the fifth (5th) anniversary of the Effective Time, PROVIDED
that, in the event that following the actual Retirement of such Employee
Stockholder from employment with the LLC such Employee Stockholder (i)
dies or (ii) experiences Permanent Incapacity, all remaining LLC Interests
of such Employee Stockholder and its Permitted Transferees shall be
purchased pursuant to this Section 3.11 promptly following the discovery
by the Manager Member of such occurrence, with the Purchase Price and
manner of payment for the purchase of such LLC Interests to be
45
determined as if such Employee Stockholder's employment with the LLC or
the WY LLC (as applicable) had terminated as a result of death or
Permanent Incapacity, respectively.
(b) The closing of the Purchase will take place on a date set
by the Manager Member (the "Purchase Closing Date") which shall be after
the last day of the calendar quarter in which the applicable Employee
Stockholder's employment with the LLC or the WY LLC (as applicable)
terminated (or, if later, after the last day of the sixth (6th) full
calendar month following the Effective Time), but which is not more than
one hundred twenty (120) days after the date such termination of
employment occurred (or, if later, not more than one hundred twenty (120)
days after the last day of the sixth (6th) full calendar month following
the Effective Time); PROVIDED, HOWEVER, that the Manager Member shall
select the same date for the Purchase Closing Date hereunder as has been
selected by the WY LLC Manager Member for the "Purchase Closing Date"
under the WY LLC Agreement (as such term is defined in the WY LLC
Agreement) for purposes of its repurchase of the Selling Member's (and/or
its Affiliates', as applicable) WY LLC Interests; and PROVIDED, FURTHER,
that the Manager Member shall be permitted in its sole discretion (but
shall not be required) to delay the consummation of the Purchase hereunder
(thereby delaying the Purchase Closing Date) until such time as the
Selling Member (and/or its Affiliates, as applicable) simultaneously sells
its WY LLC Interests to the Manager Member (or the WY LLC Manager Member)
pursuant to the provisions of Section 3.11 of the WY LLC Agreement.
(c) The aggregate purchase price payable by the Manager Member
(or its assignee) for a Purchase (the "Purchase Price") shall be
determined as follows:
(i) Series A LLC Points shall be valued at the fair value
thereof, which shall be conclusively determined as follows:
(A) the Book Value, multiplied by
(B) a fraction, the numerator of which is the number of
Vested Series A LLC Points being purchased in the Purchase,
and the denominator of which is the number of LLC Points
outstanding on the date of the closing of the Purchase (before
giving effect to any issuances or redemptions of LLC Points on
such date)
; PROVIDED, HOWEVER, that, if the Purchase Price determined
pursuant to this clause (i) exceeds the "Purchase Price"
determined under clause (i) of Section 3.11(c) of the WY LLC
Agreement (before application of the proviso to such clause
(i) of Section 3.11(c) of the WY LLC Agreement) in connection
with the corresponding purchase of WY LLC Points priced
pursuant to such provision of the WY LLC Agreement, then the
Purchase Price determined under this clause (i) shall be
reduced by the amount of such excess;
46
(ii) Series B-1 LLC Points shall be valued at the fair value
thereof, which shall be conclusively determined as follows:
(A) the Book Value thereof, multiplied by
(B) a fraction, the numerator of which is the number of
Vested Series B-1 LLC Points being purchased in the Purchase,
and the denominator of which is the number of LLC Points
outstanding on the date of the closing of the Purchase (before
giving effect to any issuances or redemptions of LLC Points on
such date)
; PROVIDED, HOWEVER, that, if the Purchase Price determined
pursuant to this clause (ii) exceeds the "Purchase Price"
determined under clause (ii) of Section 3.11(c) of the WY LLC
Agreement (before application of the proviso to such clause
(ii) of Section 3.11(c) of the WY LLC Agreement) in connection
with the corresponding purchase of WY LLC Points priced
pursuant to such provision of the WY LLC Agreement, then the
Purchase Price determined under this clause (ii) shall be
reduced by the amount of such excess;
(iii) Series B-2 LLC Points shall be valued at the fair value
thereof, which shall be conclusively determined as follows:
(A) the positive difference, if any, between (x) the
Book Value thereof and (y) the Liquidation Preference,
multiplied by
(B) a fraction, the numerator of which is the number of
Vested Series B-2 LLC Points being purchased in the Purchase
and the denominator of which is the number of LLC Points
outstanding on the date of the closing of the Purchase (before
giving effect to any issuances or redemptions of LLC Points on
such date)
; PROVIDED, HOWEVER, that, if the Purchase Price determined
pursuant to this clause (iii) exceeds the "Purchase Price"
determined under clause (iii) of Section 3.11(c) of the WY LLC
Agreement (before application of the proviso to such clause
(iii) of Section 3.11(c) of the WY LLC Agreement) in
connection with the corresponding purchase of WY LLC Points
priced pursuant to such provision of the WY LLC Agreement,
then the Purchase Price determined under this clause (iii)
shall be reduced by the amount of such excess; and
(iv) Notwithstanding any other provision hereof to the
contrary, Purchase Program Points (whether Series A LLC Points,
Series B-1 LLC Points or Series B-2 LLC Points) shall be valued at
the Fair Market Value of such LLC Points (the "Purchase Program
Points FMV")
; PROVIDED, HOWEVER, that, if the Purchase Program Points FMV
determined pursuant to this clause (iv) exceeds the "Purchase
Program Points FMV"
47
determined under clause (iv) of Section 3.11(c) of the WY LLC
Agreement (before application of the proviso to such clause (iv) of
Section 3.11(c) of the WY LLC Agreement) in connection with the
corresponding purchase of WY LLC Points priced pursuant to such
provision of the WY LLC Agreement, then the Purchase Program Points
FMV determined under this clause (iv) shall be reduced by the amount
of such excess.
Sample calculations under Sections 3.11(c)(i), 3.11(c)(ii),
3.11(c)(iii) and 3.11(c)(iv) are attached as Schedule C hereto.
(d) The rights of the Manager Member and its assignees
hereunder are in addition to and shall not affect any other rights which
AMG, the Manager Member, the LLC or their assigns may otherwise have to
purchase LLC Interests (including without limitation pursuant to any
agreement entered into by a Non-Manager Member or an Additional
Non-Manager Member which provides for the vesting of LLC Points).
(e) On the Purchase Closing Date, the Manager Member (or its
assignee, as applicable) shall pay to the Selling Member the Purchase
Price for the LLC Interests purchased in the manner set forth in this
Section 3.11, and upon such payment the Selling Member shall cease to hold
any LLC Interests, and such Selling Member automatically shall be deemed
to have withdrawn from the LLC and shall cease to be a Member of the LLC
and shall no longer have any rights hereunder; PROVIDED, HOWEVER, that the
provisions of this Article III shall continue to be binding upon such
Selling Member and any related Employee Stockholder as provided in Section
3.14 hereof; and PROVIDED, FURTHER, that, in the event that any Designated
Initial Member or other Employee Stockholder (or its related Non-Manager
Member, in the case of an Employee Stockholder that is not a natural
person) continues to hold LLC Points pursuant to the provisos to Section
3.11(a) hereof following such time as its Purchased Interest has otherwise
been purchased pursuant to this Section 3.11, such Designated Initial
Member or Employee Stockholder (as applicable) shall continue to be a
Member of the LLC until such time as it no longer holds such LLC Points
(as a result of the purchase of such LLC Points in the Subsequent Purchase
pursuant to the Purchase Agreement (in the case of Subsequent Purchase LLC
Points), the purchase of such LLC Points subsequently pursuant to this
Section 3.11 or pursuant to a Put under Section 7.1, or otherwise), and at
that time such Designated Initial Member or Employee Stockholder (as
applicable) automatically shall be deemed to have withdrawn from the LLC
and shall cease to be a Member of the LLC and shall no longer have any
rights hereunder (except as provided in the immediately preceding
proviso). On the Purchase Closing Date, the Selling Member and the Manager
Member (or its assignee) shall, if the Manager Member so requests, execute
an agreement reasonably acceptable to the Manager Member (i) in which the
Selling Member (including each Person included therein) represents and
warrants to the Manager Member (or its assignee), that it has sole record
and beneficial title to the Purchased Interest, free and clear of any
Liens other than those imposed by this Agreement, and (ii) addressing such
other customary matters as to authority, enforceability and similar
subjects as the Manager Member reasonably requests.
48
(f) Payment of the Purchase Price with respect to any
Purchased Interest shall be made as follows:
(i) In the case of a Purchase of Series A LLC Points which are
not Purchase Program Points,
(A) in the case of such a Purchase following a
termination of the employment of the applicable Employee
Stockholder with the LLC (if the LLC employed such Employee
Stockholder) or the WY LLC (if the WY LLC employed such
Employee Stockholder) in conjunction with a Removal Upon
Instruction of the Management Committee, on the Purchase
Closing Date by wire-transfer of immediately available funds
to an account designated to the Manager Member by the Selling
Member at least three (3) business days prior to the Purchase
Closing Date;
(B) in the case of such a Purchase following a
termination of the employment of the applicable Employee
Stockholder resulting from the death of such Employee
Stockholder, on the Purchase Closing Date either (in the sole
discretion of the Manager Member) (I) by wire-transfer of
immediately available funds in an amount equal to one hundred
percent (100%) of the Purchase Price to an account designated
to the Manager Member by the Selling Member at least three (3)
business days prior to the Purchase Closing Date or (II) by
(x) wire-transfer of immediately available funds in an amount
equal to fifty percent (50%) of the Purchase Price to an
account designated to the Manager Member by the Selling Member
at least three (3) business days prior to the Purchase Closing
Date and (y) delivery of AMG Shares having a value equal to
fifty percent (50%) of the Purchase Price as determined under
the procedures set forth in Section 7.1(i) hereof;
(C) in the case of such a Purchase following a
termination of the employment of the applicable Employee
Stockholder resulting from the Retirement or Permanent
Incapacity of such Employee Stockholder, on the later to occur
of (I) the Purchase Closing Date or (II) the date which is the
first business day after the third anniversary of the
Effective Time, in either such case either (in the sole
discretion of the Manager Member) (x) by wire-transfer of
immediately available funds in an amount equal to one hundred
percent (100%) of the Purchase Price to an account designated
to the Manager Member by the Selling Member at least three (3)
business days prior to the date such payment is due, (y) by
(1) wire-transfer of immediately available funds in an amount
equal to fifty percent (50%) of the Purchase Price to an
account designated to the Manager Member by the Selling Member
at least three (3) business days prior to the Purchase Closing
Date and (2) delivery of AMG Shares having a value equal to
fifty percent (50%) of the Purchase Price as determined under
the procedures set forth in Section 7.1(i) hereof, or (z) in
the case of a Purchase of Series A LLC Points which are not
Initial LLC Points, by delivery of a
49
promissory note of AMG, in the form attached hereto as Exhibit
B, having an initial principal amount equal to the Purchase
Price, the principal amount of which promissory note is
payable in four (4) equal annual installments (subject to the
terms and conditions of this Agreement and such promissory
note), with the first installment payable on the date such
promissory note is delivered pursuant hereto; or
(D) in the case of any other such Purchase (including
without limitation a termination of the employment of the
applicable Employee Stockholder in conjunction with a Removal
For Acting Contrary to the Best Interests of the LLC), on the
later to occur of (I) the Purchase Closing Date or (II) the
date which is the first business day after the second
anniversary of the Effective Time, in either such case (x)
53.571% in Contingent Consideration and (y) 46.429% (in the
sole discretion of the Manager Member) either (1) by
wire-transfer of immediately available funds to an account
designated to the Manager Member by the Selling Member at
least three (3) business days prior to the date such payment
is due, (2) by (R) wire-transfer of immediately available
funds in an amount equal to 23.215% of the Purchase Price to
an account designated to the Manager Member by the Selling
Member at least three (3) business days prior to the Purchase
Closing Date and (S) delivery of AMG Shares having a value
equal to 23.214% of the Purchase Price as determined under the
procedures set forth in Section 7.1(i) hereof, or (3) in the
case of a Purchase of Series A LLC Points which are not
Initial LLC Points, by delivery of a promissory note of AMG,
in the form attached hereto as Exhibit B, having an initial
principal amount equal to 46.429% of the Purchase Price, the
principal amount of which promissory note is payable in four
(4) equal annual installments (subject to the terms and
conditions of this Agreement and such promissory note), with
the first installment payable on the date such promissory note
is delivered pursuant hereto;
(ii) In the case of a Purchase of Series B-1 LLC Points which
are not Purchase Program Points or Series B-2 LLC Points which are
not Purchase Program Points, on the later to occur of (A) the
Purchase Closing Date or (B) the date which is the first business
day after the third anniversary of the Effective Time, in either
such case one hundred percent (100%) in Contingent Consideration;
(iii) In the case of a Purchase of Series A LLC Points or
Series B LLC Points which are Purchase Program Points,
(A) in the case of any such Purchase where the Purchase
Program Points FMV determined pursuant to Section 3.11(c)(iv)
is less than or equal to the amount that would have been
calculated under Section 3.11(c)(i) (in the case of Purchase
Program Points which are Series A LLC Points), Section
3.11(c)(ii) (in the case of Purchase Program Points which are
Series B-1 LLC Points) or Section 3.11(c)(iii) (in the
50
case of Purchase Program Points which are Series B-2 LLC
Points) if such LLC Points had not been Purchase Program
Points, then in the manner set forth in Section 3.11(f)(i) (in
the case of Purchase Program Points which are Series A LLC
Points) or Section 3.11(f)(ii) (in the case of Purchase
Program Points which are Series B LLC Points); or
(B) in the case of any such Purchase where the Purchase
Program Points FMV determined pursuant to Section 3.11(c)(iv)
is greater than the amount that would have been calculated
under Section 3.11(c)(i) (in the case of Purchase Program
Points which are Series A LLC Points), Section 3.11(c)(ii) (in
the case of Purchase Program Points which are Series B-1 LLC
Points) or Section 3.11(c)(iii) (in the case of Purchase
Program Points which are Series B-2 LLC Points) if such LLC
Points had not been Purchase Program Points, then (I) that
portion of the Purchase Program Points FMV equal to such
calculation under Section 3.11(c)(i), Section 3.11(c)(ii) or
Section 3.11(c)(iii) (as applicable) shall be paid in the
manner set forth under Section 3.11(f)(i) (in the case of
Purchase Program Points which are Series A LLC Points) or
Section 3.11(f)(ii) (in the case of Purchase Points which are
Series B LLC Points), and (II) the excess shall be paid one
hundred percent (100%) in Contingent Consideration at the same
time payment is made pursuant to clause (I) of this Section
3.11(f)(iii)(B).
(g) The Manager Member may (i) assign any or all of its rights
and obligations under this Section 3.11, in one or more instances, to any
other direct or indirect wholly-owned subsidiary of AMG or (ii) with the
written consent of the Management Committee (excluding any member thereof
whose interest is being repurchased), assign any or all of its rights and
obligations under this Section 3.11, in one or more instances, to the LLC;
PROVIDED, HOWEVER, that no such assignment shall relieve the Manager
Member of its obligation to make payment of a Purchase Price (to the
extent not paid by any such assignee); and PROVIDED, FURTHER, that, in the
event such assignee is a wholly-owned subsidiary of AMG and thereafter
ceases to be so owned, such assignee shall reassign to the Manager Member
(or another direct or indirect wholly-owned subsidiary of AMG) all LLC
Interests so acquired.
(h) In the event that a Non-Manager Member, its related
Employee Stockholder or any Permitted Transferee thereof holding LLC
Interests or WY LLC Interests (or any other holder of LLC Interests or WY
LLC Interests, other than the Manager Member or any Affiliate thereof) (i)
has filed a voluntary petition under the bankruptcy laws or a petition for
the appointment of a receiver or makes any assignment for the benefit of
creditors, (ii) is subject involuntarily to such a petition or assignment
or to an attachment or other legal or equitable interest with respect to
any of its LLC Interests or WY LLC Interests or, in the case of an
Employee Stockholder which is not a Non-Manager Member, its interests in
the Non-Manager Member which it owns, and such involuntary petition or
assignment or attachment is not discharged within sixty (60) days after
its effective date, or (iii) otherwise is subject to a Transfer of any of
its LLC Interests or WY LLC Interests or, in the case of an Employee
Stockholder which is not a
51
Non-Manager Member, its interests in the Non-Manager Member which it owns,
by court order or decree or by operation of law, then the Manager Member
shall in its sole discretion be entitled to purchase (or permit its
assignee to purchase) all of the LLC Interests and WY LLC Interests held
by such Non-Manager Member (or other holder of LLC Interests or WY LLC
Interests, other than the Manager Member or any Affiliate thereof)
pursuant to the terms of this Section 3.11 (with respect to LLC Interests)
and pursuant to the terms of Section 3.11 of the WY LLC Agreement (with
respect to WY LLC Interests) as if such Non-Manager Member (or other
holder of LLC Interests or WY LLC Interests) was a Selling Member (with
respect to LLC Interests purchased hereunder) or a "Selling Member" under
the terms of the WY LLC Agreement (with respect to WY LLC Interests
purchased thereunder), with the purchase price for such purchase to be
determined pursuant to Section 3.11(c)(ii) (in the case of purchased LLC
Interests) and paid in accordance with Sections 3.11(f)(iii) and 3.11(g),
and pursuant to the terms of Section 3.11(c)(ii) of the WY LLC Agreement
(in the case of purchased WY LLC Interests) and paid in accordance with
Sections 3.11(f)(iii) and 3.11(g) of the WY LLC Agreement, and the date of
the closing to be determined by the Manager Member in its discretion. In
order to give effect to clause (iii) of the prior sentence, if any of the
interests of a Non-Manager Member in the LLC, or of an Employee
Stockholder in a Non-Manager Member, become subject to Transfer (or
purport to be or have been Transferred) by a court order or decree or by
operation of law, the Non-Manager Member (or other holder of LLC
Interests, other than the Manager Member or any Affiliate thereof) whose
interests in the LLC, or the interests in which (as applicable), are
subject to such Transfer shall cease to be a Member of the LLC, and the
transferee by court order or decree or by operation of law shall not
become a Member, and the Manager Member (or its assignee) shall have the
right in its sole discretion to purchase from the Non-Manager Member which
has ceased to be a Non-Manager Member (or other holder of LLC Interests)
all of his, her or its interests in the LLC in the manner set forth in the
preceding sentence (and the corresponding provisions of the WY LLC
Agreement shall apply with respect to WY LLC Interests in such
circumstances). In the event that the Manager Member in its sole
discretion determines not to purchase (or permit another assignee of the
Manager Member to purchase) the LLC Interests held by a Non-Manager Member
(or other holder of LLC Interests, other than the Manager Member or any
Affiliate thereof) pursuant to the foregoing provisions of this Section
3.11(i), the Manager Member shall assign its right to make such purchase
to any one or more other Non-Manager Members who desire to make such
purchase for their own accounts (and who the Management Committee shall
have authorized in writing to make such purchase, with the Management
Committee determining the respective percentages such other Non-Manager
Members shall be permitted to purchase), and such other Non-Manager
Member(s) shall be entitled to purchase such LLC Interests on the same
terms that would have been applicable to the Manager Member had it elected
to make such purchase pursuant to the foregoing provisions of this Section
3.11(i) (and the corresponding provisions of the WY LLC Agreement shall
apply with respect to WY LLC Interests in such circumstances, provided
that the same Person or Persons purchasing such LLC Interests shall also
purchase the corresponding WY LLC Interests pursuant to the provisions of
the WY LLC Agreement).
52
(i) In the event that a Non-Manager Member (or other holder of
LLC Interests, other than the Manager Member or any Affiliate thereof) is
required to sell its LLC Interests pursuant to the provisions of this
Section 3.11 and for any reason fails to execute and deliver the
agreements required by this Section 3.11 and otherwise to consummate such
sale in accordance with the provisions of this Section 3.11 (including
without limitation as a result of being unable for any reason to comply
with the requirements hereof), the Manager Member (or its assignee, as
applicable) may deposit the Purchase Price therefor (including cash and/or
promissory notes) with any bank doing business within fifty (50) miles of
the LLC's principal place of business, or with the LLC's accounting firm,
as agent for such Non-Manager Member (or such other holder of LLC
Interests), to be held by such bank or accounting firm for the benefit of
and for delivery to such Non-Manager Member (and the corresponding
provisions of the WY LLC Agreement shall apply with respect to the sale of
WY LLC Interests under Section 3.11 of the WY LLC Agreement). Upon such
deposit by the Manager Member (or its assignee, as applicable) and upon
notice thereof given to such Non-Manager Member (or such other holder of
LLC Interests), such Non-Manager Member's (or such other holder's) LLC
Interests automatically shall be deemed to have been sold, transferred,
conveyed and assigned to the Manager Member (or its assignee, as
applicable), such Non-Manager Member (or such other holder) shall cease to
hold any LLC Interests, shall cease to be a Member of the LLC (if
previously a Member) and shall have no further rights with respect thereto
(other than the right to withdraw the payment therefor, if any, held by
the agent described in the preceding sentence), and the Manager Member
shall record such transfer on SCHEDULE A hereto.
SECTION 3.12. NO EMPLOYMENT OBLIGATION. Each Non-Manager Member and each
Employee Stockholder acknowledges that neither this Agreement nor the provisions
of any Non-Solicitation Agreement to which it is a party creates an obligation
on the part of the LLC (if the LLC employs such Employee Stockholder) or the WY
LLC (if the WY LLC employs such Employee Stockholder) to continue the employment
of an Employee Stockholder or any other Person with the LLC or the WY LLC, and
that such Employee Stockholder is an employee at will of the LLC or the WY LLC
(as applicable) (except to the extent otherwise provided in any Employment
Agreement to which such Employee Stockholder is a party).
SECTION 3.13. [INTENTIONALLY OMITTED].
SECTION 3.14. MISCELLANEOUS. Each Member and each Employee Stockholder
agrees that the enforcement of the provisions of Sections 3.8, 3.9, 3.10 and
3.11 hereof, and the enforcement of the provisions of the Employment Agreements
and Non-Solicitation Agreements, are necessary to ensure the protection and
continuity of the business, goodwill and confidential business information of
the LLC (and any Controlled Affiliates thereof) for the benefit of each of the
Members. Each Member and each Employee Stockholder agrees that, due to the
proprietary nature of the LLC's (and any of its Controlled Affiliates')
business, the restrictions set forth in Section 3.9 hereof and in the Employment
Agreements and the Non-Solicitation Agreements are reasonable as to duration and
scope. If any provision contained in this Article III shall for any reason be
held invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Article III. It is the intention of the parties hereto that if any of the
restrictions or covenants contained herein is held to cover a
53
geographic area or to be for a length of time that is not permitted by
applicable law, or is in any way construed to be too broad or to any extent
invalid, such provision shall not be construed to be null, void and of no
effect, but to the extent such provision would then be valid or enforceable
under applicable law, such provision shall be construed and interpreted or
reformed to provide for a restriction or covenant having the maximum enforceable
geographic area, time period and other provisions as shall be valid and
enforceable under applicable law. Each Member and Employee Stockholder
acknowledges that the obligations and rights under Sections 3.8, 3.9, 3.10 and
3.11 and this Section 3.14 shall survive the termination of the employment of an
Employee Stockholder with the LLC (and with the WY LLC and any applicable
Controlled Affiliates thereof, to the extent any such Person employs such
Employee Stockholder) and/or the withdrawal or removal of a Member from the LLC
(and as a member of the WY LLC), regardless of the manner of such termination,
withdrawal or removal, in accordance with the provisions hereof and of the
relevant Employment or Non-Solicitation Agreement. Moreover, each Member agrees
that the remedies provided herein are reasonably related to the anticipated loss
that the LLC (and any Controlled Affiliates thereof) and the Members (including,
without limitation, the Manager Member, which would be purchasing LLC Interests
from a Non-Manager Member) would suffer upon a breach of such provisions. Except
as agreed to following the Effective Time by the Manager Member in advance in a
writing making specific reference to this Article III, no Employee Stockholder
or Non-Manager Member shall enter into any agreement or arrangement which is
inconsistent with the terms and provisions hereof.
ARTICLE IV - CAPITAL CONTRIBUTIONS;
CAPITAL ACCOUNTS AND ALLOCATIONS; DISTRIBUTIONS.
SECTION 4.1. CAPITAL CONTRIBUTIONS.
(a) Prior to the commencement of business on the date of the
Closing, FAID agrees to contribute to the LLC certain of its assets,
properties, rights, powers, privileges and business (and the goodwill
associated therewith) (and the LLC assumed certain of the liabilities of
FAID), and the Members agree that such Capital Contributions had an
aggregate value equal to the aggregate Preferred Capital Account Balances
of the Manager Member and FAID (as a Non-Manager Member) set forth on
SCHEDULE A hereto as of immediately following the Effective Time. Except
as may be agreed to following the Effective Time in connection with the
issuance of additional LLC Interests, as specifically set forth herein, or
as may be required under applicable law, the Members shall not be required
to make any further capital contributions to the LLC. No Member shall make
any capital contribution to the LLC without the prior consent of the
Manager Member.
(b) No Member shall have the right to withdraw any part of
his, her or its (or his, her or its predecessors in interest) Capital
Contribution until the dissolution and winding up of the LLC (except as
distributions otherwise expressly provided for in this Article IV may
represent returns of capital, in whole or in part). No Member shall be
entitled to receive any interest on any Capital Contribution made by it
(or its predecessors
54
in interest) to the LLC. No Member shall have any personal liability for
the repayment of any Capital Contribution of any other Member.
SECTION 4.2. CAPITAL ACCOUNTS; ALLOCATIONS.
(a) There shall be established for each Member a Capital
Account (a "Capital Account") which, in the case of each Member, shall
initially be equal to the Capital Contribution of such Member as of
immediately following the Effective Time as set forth on SCHEDULE A
hereto.
(b) The Capital Account of each Member shall be adjusted in
the following manner. Each Capital Account shall be increased by such
Member's allocable share of income and gain, if any, of the LLC (as well
as the Capital Contributions made by a Member after the Effective Time
(including without limitation any Capital Contributions deemed to have
been made to the LLC by the Manager Member pursuant to the operation of
the last paragraph of Section 3.5(c) hereof)) and shall be decreased by
such Member's allocable share of deductions and losses, if any, of the LLC
and by the amount of all distributions made to such Member. The amount of
any distribution of assets other than cash shall be deemed to be the Fair
Market Value of such assets (net of any liabilities encumbering such
property that the distributee Member is considered to assume or take
subject to). Capital Accounts shall also be adjusted upon the issuance of
additional LLC Interests as set forth in Section 5.5(c) and upon the
transfer of LLC Interests as set forth in Section 5.1. To the extent not
otherwise provided for in this Agreement, the Capital Accounts of the
Members shall be adjusted and maintained in accordance with the rules of
Treasury Regulations Section 1.704-1(b)(2)(iv), as the same may be amended
or revised. Any references in any section of this Agreement to the Capital
Account of a Member shall be deemed to refer to such Capital Account as
the same may be credited or debited from time to time as set forth above.
(c) Subject to Sections 4.2(e), 4.2(g) and 4.5 hereof, all
items of LLC income and gain shall be allocated among the Members' Capital
Accounts at the end of every calendar quarter (or portion thereof, in the
case of the first calendar quarter end following the Effective Time, if
the Effective Time did not fall on the first day of a calendar quarter) as
follows:
(i) first, items of income and gain (if any) shall be
allocated to the Manager Member until the Manager Member has been
allocated cumulative income and gain under this Section 4.2(c)(i)
which, together with income and gain previously allocated to the
Manager Member under Section 4.2(e)(i) hereof, equals the cumulative
amount of losses and deductions allocated to the Manager Member
under Sections 4.2(d)(ii), 4.2(d)(iii) and 4.2(f) in prior periods
(if any);
(ii) second, solely to the extent (if any) that FAID's Capital
Account balance is less than its then-applicable Preferred Capital
Account Balance, items of income and gain (if any) shall be
allocated to FAID until FAID has been allocated cumulative income
and gain under this Section 4.2(c)(ii) which, together with income
and gain previously allocated to FAID under Section 4.2(e)(i)
hereof,
55
equals the cumulative amount of losses and deductions allocated to
FAID under Sections 4.2(d)(i)(B), 4.2(d)(iii) and 4.2(f) in prior
periods (if any); and
(iii) finally, all remaining items of LLC income and gain
shall be allocated among the Non-Manager Members in accordance with
(and in proportion to) each Non-Manager Member's respective number
of Vested LLC Points on the first day of such calendar quarter.
(d) Subject to Sections 4.2(f), 4.2(g) and 4.5 hereof, all
items of LLC loss and deduction shall be allocated among the Members'
Capital Accounts at the end of every calendar quarter (or portion thereof,
in the case of the first calendar quarter end following the Effective
Time, if the Effective Time did not fall on the first day of a calendar
quarter) as follows:
(i) first, all items of LLC loss and deduction for such
calendar quarter shall be allocated: (A) first, among the
Non-Manager Members in accordance with (and in proportion to) each
Non-Manager Member's respective number of Vested LLC Points on the
first day of such calendar quarter, until the aggregate amount of
such items of loss and deduction allocated to the Non-Manager
Members pursuant to this clause (A) equals the aggregate amount of
allocations of income and gain to the Non-Manager Members pursuant
to Section 4.2(c)(iii) for such calendar quarter and (B) second,
among the Non-Manager Members in accordance with (and in proportion
to) each Non-Manager Member's respective numbers of Vested LLC
Points on the first day of such calendar quarter, until the Capital
Accounts of all of the Non-Manager Members shall have been reduced
to zero (0) (after giving effect to the allocations of income and
gain for such calendar quarter under Section 4.2(c)); provided that
no additional loss or deduction shall be allocated to any
Non-Manager's Capital Account pursuant to this Section 4.2(d)(i)
once such Capital Account has been reduced to zero (0) (but items of
loss and deduction shall continue to be allocated to the Capital
Accounts of the other Non-Manager Members pursuant to this Section
4.2(d)(i) until all such Non-Manager Members' Capital Accounts have
been reduced to zero (0));
(ii) second, any remaining items of LLC loss and deduction for
such calendar quarter not allocated to the Non-Manager Members under
Section 4.2(d)(i) shall be allocated to the Manager Member until its
Capital Account shall have been reduced to zero(0); and
(iii) finally, any remaining items of LLC loss and deduction
for such calendar quarter not allocated to the Members under
Sections 4.2(d)(i) and 4.2(d)(ii) shall be allocated among all
Members in accordance with (and in proportion to) each Member's
respective number of Vested LLC Points as of the first day of such
calendar quarter.
(e) If the LLC has a net gain from the sale, exchange or other
disposition of all, or substantially all (as determined by the Manager
Member), of the
56
assets of the LLC and its Controlled Affiliates and the WY LLC and its
Controlled Affiliates, then that net gain shall be allocated among the
Members as follows:
(i) first, to the Manager Member until the Manager Member has
been allocated cumulative gain which, together with income and gain
previously allocated to the Manager Member under Section 4.2(c)(i)
and this Section 4.2(e)(i), equals the cumulative amount of losses
and deductions allocated to the Manager Member under Sections
4.2(d)(ii), 4.2(d)(iii) and 4.2(f) in prior periods;
(ii) second, solely to the extent (if any) that FAID's Capital
Account balance is less than its then-applicable Preferred Capital
Account Balance, to FAID until FAID has been allocated cumulative
gain which, together with income and gain previously allocated to
FAID under Section 4.2(c)(ii) and this Section 4.2(e)(ii), equals
the cumulative amount of losses and deductions allocated to FAID
under Sections 4.2(d)(i)(B), 4.2(d)(iii) and 4.2(f) in prior
periods;
(iii) third, an aggregate amount of gain equal to the positive
difference between (A) the Liquidation Preference and (B) the
aggregate positive Capital Account balances of those Members holding
Series A LLC Points and/or Series B-1 LLC Points as of the date of
the transaction (or an allocable portion thereof, in the case of any
Member holding both Series A LLC Points and/or Series B-1 LLC
Points, on the one hand, and Series B-2 LLC Points, on the other
hand, as of the date of such transaction) to those Members holding
Vested Series A LLC Points and/or Vested Series B-1 LLC Points as of
the date of the transaction in accordance with (and in proportion
to) their respective number of Vested Series A LLC Points and Vested
Series B-1 LLC Points as of the date of the transaction; PROVIDED,
HOWEVER, that if any gain would be allocable to the Non-Manager
Members holding Series A LLC Points (other than FAID) pursuant to
this Section 4.2(e)(iii), any gain allocable to FAID pursuant to
this Section 4.2(e)(iii) shall instead be allocated to the
Non-Manager Members holding Series A LLC Points (other than FAID) in
accordance with (and in proportion to) their respective number of
Vested Series A LLC Points as of the date of the transaction until
the ratio of (I) the aggregate Capital Account balances of the
Non-Manager Members holding Series A LLC Points (other than FAID)
arising as a result of allocations made pursuant to this Section
4.2(e)(iii) and 4.2(e)(iv), on the one hand, to (ii) the aggregate
Preferred Capital Account Balances of the Manager Member and FAID,
on the other hand, is equal to the ratio of (X) the Applicable
Series A Aggregate Non-Manager Member Allocation Percentage, on the
one hand, to (Y) the sum of the Applicable Manager Member Allocation
Percentage plus the Applicable FAID Allocation Percentage, on the
other hand;
(iv) fourth, with respect to each remaining dollar of gain,
(A) to the Manager Member that percentage of such dollar of gain
equal to the Applicable Manager Member Allocation Percentage and (B)
to the Non-Manager Members (other than FAID) the remaining portion
of such dollar of gain (with such portion to be allocated among the
Non-Manager Members (other than FAID) in accordance with (and in
proportion to) their respective number of Vested LLC
57
Points as of the date of the transaction), until the ratio of (I)
the aggregate Capital Account balances of the Non-Manager Members
(other than FAID) arising as a result of allocations made pursuant
to Section 4.2(e)(iii) and this Section 4.2(e)(iv), on the one hand,
to (II) the aggregate Preferred Capital Account Balances of the
Manager Member and FAID, on the other hand, is equal to the ratio of
(X) the Applicable Aggregate Non-Manager Member Allocation
Percentage, on the one hand, to (Y) the sum of the Applicable
Manager Member Allocation Percentage plus the Applicable FAID
Allocation Percentage, on the other hand; and
(v) thereafter, among the Members in accordance with (and in
proportion to) their respective number of Vested LLC Points as of
the date of the transaction.
(f) If the LLC has a net loss from any sale, exchange or other
disposition of all, or substantially all (as determined by the Manager
Member), of the assets of the LLC and its Controlled Affiliates and the WY
LLC and its Controlled Affiliates, then that net loss shall be allocated
among the Members in accordance with (and in proportion to) their
respective number of Vested LLC Points as of the date of the transaction;
provided that no additional losses shall be allocated to a Member once its
Capital Account has been reduced to zero (0) (but losses shall continue to
be allocated to the Capital Accounts of the other Members pursuant to this
Section 4.2(f)) until all Members' Capital Accounts have been reduced to
zero (0), and thereafter any remaining amount of such losses shall be
allocated among all Members pursuant to this Section 4.2(f) in accordance
with (and in proportion to) each Member's respective number of Vested LLC
Points as of the date of the transaction.
(g) Upon the making of an indemnification payment pursuant to
Article 13 of the Purchase Agreement (or offset of such a required payment
against an amount owed to an indemnitor as permitted under the Purchase
Agreement), which payment is treated as an adjustment to the DE LLC
Closing Purchase Price, (i) the Manager Member's and FAID's respective
Preferred Capital Account Balances and (ii) the Capital Account balances
of each of the Members shall be adjusted on a pro forma basis to such
levels as would have been in effect at the time of such indemnification
payment if the DE LLC Closing Purchase Price had instead been reduced by
the amount of such indemnification payment as of the Effective Time.
(h) Following (and not including) the date on which the
Effective Time occurs, in the event that during any calendar quarter (or
any fiscal year of the LLC) there is any change of Members or LLC Points
held by the Members (whether as a result of the admission of an Additional
Non-Manager Member, the redemption by the LLC of all (or any portion of)
any Member's LLC Points, an issuance or transfer of any LLC Points or
otherwise), such transfer shall be deemed to have occurred as of the end
of the last day of the calendar quarter in which such change occurred;
PROVIDED, HOWEVER, that allocations in respect of Subsequent Purchase LLC
Points for periods prior to the Subsequent Closing shall be made to FAID
(with FAID and the Manager Member to receive respective allocations in
respect of such LLC Points for the calendar quarter in
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which the Subsequent Closing occurs ratably based upon the number of days
in such quarter that each of them held such LLC Points).
SECTION 4.3. DISTRIBUTIONS.
(a) Subject to Section 4.4 hereof, from and after the
Effective Time, within thirty (30) days after the end of each calendar
quarter, the LLC shall, to the extent cash is available therefor at the
LLC or any of its Controlled Affiliates (and the LLC shall cause its
Controlled Affiliates to distribute any such available cash to the LLC, to
the extent required for distributions pursuant hereto and not in violation
of any laws applicable to such Controlled Affiliates), and based on the
unaudited financial statements for such calendar quarter prepared in
accordance with Section 9.3 hereof (after approval of such financial
statements by the Manager Member), distribute to each Non-Manager Member
(and each Person who was a Non-Manager Member at any time during such
calendar quarter) an amount equal to the allocation of income and gain to
such Non-Manager Member pursuant to Section 4.2(c)(iii) for such calendar
quarter and any previous calendar quarter to the extent not then
distributed, less an amount equal to the allocation of losses and
deductions to such Non-Manager Member pursuant to Sections 4.2(d)(i)(B)
and 4.2(d)(iii) for such calendar quarter.
(b) Except to the extent distributions are provided for in
Section 4.3(a) hereof, any other amounts or proceeds available for
distribution to the Members (if any) (after taking into account the use or
reservation of Operating Allocation pursuant to Section 3.5(c)) shall be
distributed to the Members at such times as may be determined by the
Manager Member, provided that any such distribution shall be made among
the Members (i) if attributable to a sale of all, or substantially all (as
determined by the Manager Member), of the assets of the LLC and its
Controlled Affiliates and the WY LLC and its Controlled Affiliates, in the
same manner and order as such distribution would have been made under
Section 4.4 upon a dissolution, and (ii) if otherwise attributable, in
accordance with (and in proportion to) their respective numbers of Vested
LLC Points at the time of such distribution (PROVIDED, HOWEVER, that if a
Member has made a Capital Contribution after the Effective Time (other
than a Capital Contribution deemed to have been made by the Manager Member
pursuant to the operation of the last paragraph of Section 3.5(c) hereof
with respect to indemnification payments), the Manager Member may cause
the LLC first to make a priority return of such Capital Contribution in
the case of a distribution described in this clause (ii)).
(c) Notwithstanding any other provision of this Agreement, the
LLC shall not make a distribution to any Member on account of its LLC
Interest if such distribution would violate the Act or other applicable
law.
SECTION 4.4. DISTRIBUTIONS UPON DISSOLUTION; ESTABLISHMENT OF A RESERVE
UPON DISSOLUTION. Upon any dissolution of the LLC, the assets of the LLC shall
first go toward the payment (or the making of reasonable provision for the
payment) of all liabilities of the LLC owing to creditors, including without
limitation the establishment of such reserves as the Manager Member (or if there
is none, the Liquidating Trustee) deems necessary or advisable to provide for
any liabilities or other obligations of the LLC. The Manager Member (or if there
is
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none, the Liquidating Trustee) may cause the LLC to pay any such reserves over
to a bank (or other third party) to be held in escrow for the purpose of paying
any such liabilities or other obligations. At the expiration of such period(s)
as the Manager Member (or Liquidating Trustee, if there is no Manager Member)
may deem necessary or advisable, any remaining amount of such reserves (if any),
and any other assets available for distribution, or a portion thereof (as
determined by the Manager Member or, if there is none, the Liquidating Trustee),
shall be distributed among the Members in accordance with the positive balances
(if any) in their respective Capital Accounts (as determined immediately prior
to such distribution after taking into account all Capital Account adjustments
for the period in which the dissolution occurs) until all such positive Capital
Account balances have been reduced to zero. If any assets of the LLC are to be
distributed in kind in connection with such liquidation, such assets shall be
distributed on the basis of their Fair Market Values (net of any liabilities
encumbering such assets) and, to the greatest extent practicable under the
circumstances (as determined by the Manager Member or, if there is none, the
Liquidating Trustee), shall be distributed pro-rata in accordance with the total
amounts to be distributed to each Member. In the event that a distribution
referenced in the preceding sentence is not distributed pro-rata, the Members
understand and acknowledge that a Member may be compelled to accept a
distribution of any asset in kind from the LLC despite the fact that the
percentage of the asset distributed to such Member exceeds the percentage of
that asset which is equal to the percentage in which such Member shares in
distributions from the LLC. Immediately prior to the effectiveness of any such
distribution-in-kind, each item of gain and/or loss that would have been
recognized by the LLC had the property being distributed instead been sold by
the LLC for its Fair Market Value shall be determined and allocated to those
Persons who were Members immediately prior to the effectiveness of such
distribution in accordance with Sections 4.2(e) and 4.2(f).
SECTION 4.5. PROCEEDS FROM CAPITAL CONTRIBUTIONS AND THE SALE OF
SECURITIES; INSURANCE PROCEEDS; CERTAIN SPECIAL ALLOCATIONS.
(a) MINIMUM GAIN CHARGEBACK. Notwithstanding any other
provision in this Article IV, if there is a net decrease in Partnership
Minimum Gain or Partner Nonrecourse Debt Minimum Gain (determined in
accordance with the principles of Treasury Regulations Sections 1.704-2(d)
and 1.704-2(i)) during any taxable year, the Members shall be specially
allocated items of LLC income and gain for such year (and, if necessary,
subsequent years) in an amount equal to their respective shares of such
net decrease during such year, determined pursuant to Treasury Regulations
Sections 1.704-2(g)(2) and 1.704-2(i)(5). The items to be so allocated
shall be determined in accordance with Treasury Regulations Section
1.704-2(f). This Section 4.5(a) is intended to comply with the minimum
gain chargeback requirements in such Treasury Regulations Sections and
shall be interpreted consistently therewith; including that no chargeback
shall be required to the extent of the exceptions provided in Treasury
Regulations Sections 1.704-2(f) and 1.704-2(i)(4).
(b) QUALIFIED INCOME OFFSET. In the event any Member
unexpectedly receives any adjustments, allocations, or distributions
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or
(6), items of LLC income and gain shall be specially allocated to such
Member in an amount and manner sufficient to eliminate the
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deficit balance in his Capital Account created by such adjustments,
allocations or distributions as promptly as possible.
(c) GROSS INCOME ALLOCATION. In the event any Member has a
deficit Capital Account at the end of any fiscal year which is in excess
of the sum of (i) the amount such Member is obligated to restore, if any,
pursuant to any provision of this Agreement, and (ii) the amount such
Member is deemed to be obligated to restore pursuant to the penultimate
sentences of Treasury Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5),
each such Member shall be specially allocated items of LLC income and gain
in the amount of such excess as quickly as possible, provided that an
allocation pursuant to this Section 4.5(c) shall be made only if and to
the extent that a Member would have a deficit Capital Account in excess of
such sum after all other allocations provided for in this Article IV have
been tentatively made as if Section 4.5(b) and this Section 4.5(c) were
not in this Agreement.
(d) NONRECOURSE DEDUCTIONS. Nonrecourse Deductions shall be
allocated among the Members in accordance with their respective numbers of
Vested LLC Points.
(e) PARTNER NONRECOURSE DEDUCTIONS. Partner Nonrecourse
Deductions for any taxable period shall be allocated to the Member who
bears the economic risk of loss with respect to the liability to which
such Partner Nonrecourse Deductions are attributable in accordance with
Treasury Regulations Section 1.704-2(j).
(f) CURATIVE ALLOCATIONS. The allocations set forth in
Sections 4.5(a), (b), (c), (d), and (e) hereof (the "Regulatory
Allocations") are intended to comply with certain requirements of the
Treasury Regulations. It is the intent of the Members that, to the extent
possible, all Regulatory Allocations shall be offset either with other
Regulatory Allocations or with special allocations of other items of LLC
income, gain, loss or deduction pursuant to this Section 4.5(f), and to
the extent Regulatory Allocations are necessary, it is the intent of the
Members that they be made in as consistent a manner with the provisions of
Section 4.2 hereof as practicable, subject to compliance with the Treasury
Regulations. Therefore, notwithstanding any other provision of this
Article IV (other than the Regulatory Allocations), the Manager Member
shall make such offsetting special allocations of LLC income, gain, loss
or deduction in whatever manner it determines appropriate so that, after
such offsetting allocations are made, each Member's Capital Account is, to
the extent possible, equal to the Capital Account balance such Member
would have had if the Regulatory Allocations were not a part of this
Agreement and all LLC items were allocated pursuant to Section 4.2. In
exercising its discretion under this Section 4.5(f), the Manager Member
shall take into account future Regulatory Allocations under Section 4.5(a)
that, although not yet made, are likely to offset other Regulatory
Allocations previously made under Sections 4.5(d) and (e).
(g) Capital Contributions (other than any Capital
Contributions deemed to have been made to the LLC by the Manager Member
pursuant to the operation of the last paragraph of Section 3.5(c) hereof)
made by any Member after the Effective Time, and any proceeds from the
issuance of securities by the LLC, may in the sole
61
discretion of the Manager Member be used for the benefit of the LLC
(including without limitation provision for the purchase or redemption of
any LLC Interests to be purchased or redeemed by the LLC), or may be
distributed by the LLC to the Members in the sole discretion of the
Manager Member, in which case any such proceeds shall be allocated and
distributed among the Members in accordance with their respective Vested
LLC Points immediately prior to the date of such contribution or issuance
of securities (it being understood that in the event the proceeds are a
promissory note or other receivable, any such distribution shall only
occur (if at all) upon receipt by the LLC of cash in respect thereof).
(h) All items of depreciation or amortization (as calculated
for book purposes in accordance with GAAP, consistently applied) on
account of the tangible items of property of the LLC at the Effective Time
shall be allocated to the Non-Manager Members pursuant to Section
4.2(d)(i); in no event shall items of intangible property resulting from
the purchases of LLC Interests occurring pursuant to the Purchase
Agreement and the Management Owner Purchase Agreement be depreciated or
amortized for Capital Account purposes under this Agreement (but any items
of depreciation or amortization (as calculated for book purposes in
accordance with GAAP, consistently applied) on account of intangible items
of property of the LLC otherwise existing as of immediately prior to the
Effective Time shall be specially allocated to the Manager Member and the
Non-Manager Members in accordance with (and in proportion to) the amounts
of their respective Preferred Capital Account balances). All items of
depreciation or amortization (as calculated for book purposes in
accordance with GAAP, consistently applied) on account of property
(whether tangible or intangible) purchased out of the Operating Allocation
(or with the proceeds of any Working Capital Loans) shall be allocated to
the Non-Manager Members pursuant to Section 4.2(d)(i). All items of
depreciation or amortization (as calculated for book purposes in
accordance with GAAP, consistently applied) or deduction on account of
property (whether tangible or intangible) purchased out of funds received
from FAI, FAID, either of the Charities or any of the Management Owners by
reason of indemnification obligations under the Purchase Agreement or the
Management Owner Purchase Agreement (as applicable) shall be specially
allocated to the Manager Member.
SECTION 4.6. TAX ALLOCATIONS. For income tax purposes only, each item of
income, gain, loss and deduction of the LLC shall be allocated among the Members
in the same manner as the corresponding items of income, gain, loss and
deduction and specially allocated items are allocated for Capital Account
purposes, provided that in the case of any LLC asset the Carrying Value of which
differs from its adjusted tax basis for federal income tax purposes, income,
gain, loss and deduction with respect to such asset shall be allocated solely
for income tax purposes in accordance with the traditional method of allocation
pursuant to Treasury Regulations Section 1.704-3(b) so as to take account of the
difference between the Carrying Value and the adjusted basis of such asset.
SECTION 4.7. OTHER ALLOCATION PROVISIONS. The foregoing provisions and the
other provisions of this Agreement relating to the maintenance of Capital
Accounts are intended to comply with Treasury Regulations Section 1.704-1(b) and
shall be interpreted and applied in a manner consistent with such regulations.
Sections 4.2(c) to 4.2(f), and Sections 4.5 and 4.6 may
62
be amended at any time by the Manager Member if necessary, in the opinion of tax
counsel to the LLC or the Manager Member, to comply with such regulations, so
long as any such amendment (a) does not materially change the relative economic
interests of the Members and (b) to the extent practicable in the Manager
Member's reasonable judgment, applies consistently to all Non-Manager Members.
SECTION 4.8. WITHHOLDING. The Manager Member is authorized to cause the
LLC to withhold from distributions to a Member, or with respect to allocations
to a Member, and to pay over to a federal, state or local government, any
amounts required to be withheld pursuant to the Code or any other provisions of
federal, state or local law. Any amounts so withheld shall be treated as
distributed to such Member pursuant to this Article IV for all purposes of this
Agreement and, if withheld from amounts allocated but not distributed, shall be
offset against the next amounts otherwise distributable to such Member.
ARTICLE V - TRANSFER OF LLC INTERESTS BY NON-MANAGER
MEMBERS; RESIGNATION, REDEMPTION AND WITHDRAWAL BY
NON-MANAGER MEMBERS;
ADMISSION OF ADDITIONAL NON-MANAGER MEMBERS.
SECTION 5.1. TRANSFERABILITY OF INTERESTS. No interest of a Non-Manager
Member (or transferee thereof) in the LLC (including without limitation LLC
Interests) may, directly or indirectly, be sold, assigned, transferred, gifted
or exchanged, nor may any Non-Manager Member (or transferee thereof) offer to do
any of the foregoing (each, a "Transfer"), nor may any direct or indirect
interest in any Non-Manager Member be, directly or indirectly, Transferred by
any holder thereof, nor may any stockholder or other holder of an ownership
interest in any Non-Manager Member which is not a natural person offer to do any
of the foregoing, and no Transfer by a Non-Manager Member (or transferee
thereof) or holder of an ownership interest in a Non-Manager Member shall be
binding upon the LLC or any Non-Manager Member, in each case unless (i) such
Transfer is expressly permitted by this Article V and (ii) the Management
Committee and the Manager Member each receive an executed copy of the documents
effecting such Transfer and such documents are in compliance with the
requirements of this Article V and otherwise in form and substance satisfactory
to the Management Committee and the Manager Member (each acting reasonably);
PROVIDED, HOWEVER, that the provisions of this Article V shall not be applicable
to the Subsequent Purchase (which shall be expressly permitted hereunder). The
transferee of an interest in the LLC may become a substitute Non-Manager Member,
and a Non-Manager Member which is not a natural person may remain a Member of
the LLC following the Transfer of an ownership interest in such Non-Manager
Member, in each case only upon the terms and conditions set forth in Section
5.2. If a transferee of an interest of a Non-Manager Member in the LLC does not
become (and until any such transferee becomes) a substitute Non-Manager Member,
or if a Non-Manager Member in which an ownership interest has been Transferred
does not remain a Member of the LLC following such Transfer, in either case in
accordance with the provisions of Section 5.2, such Person shall not be entitled
to exercise or receive any of the rights, powers or benefits of a Non-Manager
Member other than the right to receive allocations of income, gain, loss and
deduction and distributions which the assigning Non-Manager Member has
Transferred to such Person. Each Employee Stockholder
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and Non-Manager Member agrees to comply, and to cause its owners and transferees
to comply (as applicable), with the provisions of this Article V.
A Non-Manager Member's LLC Interests or, in the case of a
Non-Manager Member which is not a natural person, direct ownership interests in
such Non-Manager Member (but in no event indirect ownership interests in such
Non-Manager Member without the prior written consent of both the Management
Committee and the Manager Member granted after the Effective Time in their
respective sole discretion) may be Transferred solely:
(a) (i) with the prior written consent of the Management
Committee and the Manager Member granted after the Effective Time or (ii)
with respect to Program LLC Points held by FAID as of the Effective Time,
Transfers of such Program LLC Points made pursuant to the terms of the
Equity Purchase Program;
(b) upon (i) the death of such Non-Manager Member (in the case
of a Non-Manager Member who is a natural person), with respect to LLC
Interests held by such Non-Manager Member, or (ii) upon the death of a
direct holder of ownership interests in such Non-Manager Member (in the
case of a Non-Manager Member which is not a natural person), with respect
to the direct ownership interests in such Non-Manager Member held by such
deceased holder, in either such case such specified ownership interests
may be Transferred by will or the laws of descent and distribution,
without the consent of the Manager Member but subject in all cases to the
provisions of Section 3.11 hereof, which shall continue to be binding upon
the LLC Interests of such Non-Manager Member (and the holders thereof)
notwithstanding such death; PROVIDED, HOWEVER, that no Transfer of LLC
Points (or an interest in a Non-Manager Member holding LLC Points) shall
be permitted pursuant to this Section 5.1(b) unless accompanied by a
simultaneous Transfer by the same transferor (or by its Affiliated
"Non-Manager Member" under the WY LLC Agreement, as applicable) to the
same transferee of an equal number of WY LLC Points (or an equal
proportionate direct interest in such "Non-Manager Member" under the WY
LLC Agreement holding such WY LLC Points, as applicable); or
(c) (i) an Employee Stockholder who is a Non-Manager Member
may Transfer his or her LLC Interests, or (ii) direct ownership interests
in a Non-Manager Member which is not a natural person may be Transferred
by its related Employee Stockholder, in either such case to members of
such Employee Stockholder's Immediate Family (or trusts for their benefit
and of which the exclusive beneficial owner is such Employee Stockholder
and/or any such Immediate Family members), provided that any such trust
does not require or permit distribution of such interests other than (A)
to such Employee Stockholder or its related original Non-Manager Member
that is a party hereto or (B) to such Immediate Family members who are
beneficiaries thereof with such distribution being contingent upon the
compliance by such Immediate Family members with the documentation and
other requirements of this Agreement applicable to transferees of LLC
Interests), without the consent of the Management Committee or the Manager
Member but subject in all cases to the provisions of Section 3.11 hereof,
which shall continue to be binding upon the LLC Interests of such
Non-Manager Member (and the holders thereof) notwithstanding such
Transfer; PROVIDED, HOWEVER, that no Transfer of LLC Points (or an
interest in a Non-Manager Member holding LLC Points) shall be
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permitted pursuant to this Section 5.1(c) unless accompanied by a
simultaneous Transfer by the same transferor (or by its Affiliated
"Non-Manager Member" under the WY LLC Agreement, as applicable) to the
same transferee of an equal number of WY LLC Points (or an equal
proportionate direct interest in such "Non-Manager Member" under the WY
LLC Agreement holding such WY LLC Points, as applicable);
provided that in the case of (b) or (c) above, (i) the transferee first enters
into an agreement with the LLC in form and substance reasonably satisfactory to
the Manager Member (including without limitation with respect to any subsequent
distribution of LLC Interests to beneficiaries being contingent upon them
entering into such an agreement with the LLC, in the case of a transferee that
is a trust or similar vehicle) agreeing to be bound by the provisions of this
Agreement (and if such transferee is not already a party to a Non-Solicitation
Agreement and becomes (or any related Person thereof, in the event such
transferee is not a natural person, becomes) an employee of the LLC, the
transferee (and each such related person) enters into a Non-Solicitation
Agreement), and (ii) whether or not the transferee enters into such an
agreement, such LLC Interests and ownership interests in such Non-Manager Member
(as applicable) shall thereafter remain subject to this Agreement (and the
transferee (and any related person thereof, in the event such transferee is not
a natural person) shall become subject to the transferring Employee
Stockholder's Non-Solicitation Agreement if such transferee (or a related person
thereof) becomes an employee of the LLC). LLC Points which are Transferred
pursuant to Section 5.1(a)(i) shall thereafter have such Put rights under
Article VII of this Agreement as may be agreed to in writing following the
Effective Time by the Manager Member in its sole discretion in connection with
such Transfer.
Notwithstanding the foregoing, without the prior written consent of the
Manager Member granted after the Effective Time, no Non-Manager Member's
interest in the LLC may be Transferred (and no ownership interest in a
Non-Manager Member which is not a natural person may be Transferred) (i) if
after giving effect to such Transfer, the total number of Members of the LLC
would be deemed to exceed one hundred (100) (as determined in accordance with
Treasury Regulations ss. 1.7704-1(h)), unless either (A) such Transfer is a
Transfer described in Treasury Regulations ss. 1.7704-1(e) or (B) such Transfer
is pursuant to a Put right under Article VII and the sum of the percentage
interests in profits or capital of the LLC Transferred during the taxable year
of the LLC (other than in Transfers described in Treasury Regulations ss.
1.7704-1(e)) would, taking the Transfer in question into account and assuming
the maximum exercise of the Non-Manager Members' Put rights under Article VII,
exceed ten percent (10%) of the total interests in profits or capital of the
LLC, or (ii) if such Transfer (A) is required to be registered under the
Securities Act, or (B) is not required to be registered under the Securities Act
by reason of Regulation S thereunder, but would have been required to be
registered under the Securities Act if the Transfer had been made within the
United States, or if such Transfer would otherwise violate the securities or
other laws of any jurisdiction.
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For all purposes of this LLC Agreement, any Transfers of LLC Interests
shall be deemed to occur as of the end of the last day of the calendar quarter
in which any such Transfer would otherwise have occurred. Upon any Transfer of
LLC Interests in accordance with the provisions hereof, the Manager Member shall
make the appropriate revisions to SCHEDULE A hereto.
Each time LLC Interests (including without limitation additional LLC
Points) are Transferred (including without limitation pursuant to a Put) or
Purchased, the Manager Member may in its sole discretion elect to revalue the
Capital Accounts of all the Members. If the Manager Member so elects, then the
Capital Accounts of all the Members shall be adjusted as follows: (i) The
Manager Member shall determine the proceeds which would be realized if the LLC
sold all its assets at such time for a price equal to the Fair Market Value of
such assets, and (ii) the Manager Member shall allocate amounts equal to the
gain or loss which would have been realized upon such a sale to the Capital
Accounts of all the Members immediately prior to such Transfer in accordance
with Sections 4.2(e) and 4.2(f) hereof.
No interests of a Non-Manager Member in the LLC (including without
limitation LLC Interests) may be pledged, hypothecated, optioned or encumbered,
nor may any direct or indirect ownership interests in a Non-Manager Member be
pledged, hypothecated, optioned or encumbered, nor may any offer to do any of
the foregoing be made, without the prior written consent of the Management
Committee and the Manager Member granted after the Effective Time in their
respective reasonable discretion.
SECTION 5.2. SUBSTITUTE NON-MANAGER MEMBERS. No transferee of interests of
a Member in the LLC (including without limitation LLC Interests) shall become a
Member, and no Non-Manager Member in which any direct or indirect ownership
interests have been Transferred shall remain a Member of the LLC, in either case
except in accordance with this Section 5.2. The Management Committee may, with
the prior written consent of the Manager Member granted after the Effective
Time, admit as a substitute or additional Non-Manager Member (with respect to
all or a portion of the LLC Interests held by a Person) any Person that acquires
an LLC Interest by Transfer from a Non-Manager Member in accordance with Section
5.1 hereof. The Manager Member may, with the prior written consent of the
Management Committee (such consent not to be unreasonably withheld), admit as a
substitute or additional Non-Manager Member (with respect to all or a portion of
the LLC Interests held by a Person) any Person that acquires an LLC Interest
from the Manager Member in accordance with Section 6.1 hereof. The Management
Committee may, with the prior written consent of the Manager Member granted
after the Effective Time, permit any Non-Manager Member in which ownership
interests have been Transferred to remain a Member of the LLC (and such
Non-Manager Member otherwise automatically shall cease to be a Member of the
LLC). The admission of a transferee as a substitute or additional Non-Manager
Member shall, in all events, be conditioned upon the execution of an instrument
satisfactory in form and substance to the Management Committee and the Manager
Member, whereby such transferee becomes a party to this Agreement as a
Non-Manager Member, as well as compliance by such transferee with the provisions
of Section 3.8 hereof. Upon the admission of a substitute Non-Manager Member in
accordance with this Section 5.2, the Manager Member shall make the appropriate
revisions to SCHEDULE A hereto.
SECTION 5.3. ALLOCATION OF DISTRIBUTIONS BETWEEN TRANSFEROR AND
TRANSFEREE; SUCCESSOR TO CAPITAL ACCOUNTS. Upon the Transfer of LLC Interests in
accordance with this
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Article V, distributions pursuant to Article IV after the date of such Transfer
shall be made to the Person owning the LLC Interest at the date of distribution,
unless the transferor and transferee otherwise agree and so direct the LLC and
the Manager Member in a written statement signed by both the transferor and
transferee; PROVIDED, HOWEVER, that distributions in respect of allocations made
with regard to Subsequent Purchase LLC Points for periods prior to the
Subsequent Closing shall be made to FAID. Subject to Sections 5.9(c) and 5.9(d)
hereof, in connection with a Transfer by a Member of LLC Interests, the
transferee shall succeed to a pro-rata (based on the percentage of such Person's
LLC Interests Transferred) portion of the transferor's Capital Account, unless
the transferor and transferee otherwise agree and so direct the LLC and the
Manager Member in a written statement signed by both the transferor and
transferee and consented to in writing by the Management Committee and the
Manager Member following the Effective Time.
SECTION 5.4. RESIGNATION, REDEMPTIONS AND WITHDRAWALS. No Non-Manager
Member shall have the right to resign as a Member, to cause the redemption of
its interest in the LLC in whole or in part, or otherwise to withdraw as a
Member of the LLC, except (a) with the written consent of the Management
Committee and the Manager Member granted after the Effective Time, (b) as is
expressly provided for in Section 3.11 hereof in connection with a Purchase or
(c) as is expressly provided for in Section 7.1 hereof. Upon any resignation,
redemption or withdrawal as a Member, the Non-Manager Member shall only be
entitled to the consideration (if any) provided for by Section 3.11 or Section
7.1 hereof upon the purchase of its LLC Interest, if and to the extent that one
of such Sections provides for such a purchase (and shall in no event be entitled
to a withdrawal, redemption or distribution of its Capital Account in whole or
in part). Upon the resignation, redemption or withdrawal, in whole or in part,
by a Non-Manager Member, the Manager Member shall make the appropriate revisions
to SCHEDULE A hereto.
SECTION 5.5. ISSUANCE OF ADDITIONAL LLC INTERESTS.
(a) Except as provided in Section 5.2, additional Non-Manager
Members (together with any Person admitted as a substitute or additional
Non-Manager Member pursuant to Section 5.2 hereof, the "Additional
Non-Manager Members") may be admitted to the LLC, and such Additional
Non-Manager Members may be issued LLC Interests, only upon the prior
written consent of the Manager Member and the Management Committee granted
after the Effective Time (and then upon such terms and conditions as may
be established jointly by the Manager Member and the Management Committee,
including without limitation upon such Additional Non-Manager Member's
execution of an instrument in form and substance satisfactory to the
Manager Member whereby such Person becomes a party to this Agreement as a
Non-Manager Member as well as such Person's compliance with the provisions
of Section 3.8 hereof). Unless the Manager Member and the Management
Committee each shall have otherwise granted their prior written consent
after the Effective Time, any issuance of LLC Points pursuant to this
Section 5.5(a) shall be accompanied by a simultaneous issuance of the same
number of WY LLC Points by the WY LLC to the same Person (or to its
Affiliated "Non-Manager Member" under the WY LLC Agreement, as applicable)
receiving LLC Points in such issuance by the LLC.
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(b) Existing Non-Manager Members may be issued additional LLC
Points by the LLC only upon the prior written consent of the Manager
Member and the Management Committee granted after the Effective Time (and
then upon such terms and conditions as may be established jointly by the
Manager Member and the Management Committee). The Manager Member or its
Affiliates may only be issued additional LLC Points (or other LLC
Interests) upon the approval of the Management Committee. Unless the
Manager Member and the Management Committee each shall have otherwise
granted their prior written consent after the Effective Time, any issuance
of LLC Points pursuant to this Section 5.5(b) shall be accompanied by a
simultaneous issuance of the same number of WY LLC Points by the WY LLC to
the same Person (or to its Affiliated "Non-Manager Member" under the WY
LLC Agreement, as applicable) receiving LLC Points in such issuance by the
LLC.
(c) Each time additional LLC Interests are issued (including,
without limitation, additional LLC Points), the Capital Accounts of all
the Members shall be adjusted as follows: (i) the proceeds which would be
realized if the LLC sold all its assets at such time for a price equal to
the Fair Market Value of such assets shall be determined as provided in
the definition of Fair Market Value, and (ii) the Manager Member shall
allocate amounts equal to the gain or loss which would have been realized
upon such a sale to the Capital Accounts of all the Members immediately
prior to such issuance in accordance with Sections 4.2(e) and 4.2(f)
hereof.
(d) Upon the issuance of additional LLC Interests in
accordance with the provisions of this Article V, the Manager Member shall
make the appropriate revisions to SCHEDULE A hereto.
(e) Notwithstanding anything in this Agreement to the
contrary, (i) no additional LLC Interests may be issued if, giving effect
to such issuance, the total number of Members would be deemed to exceed
one hundred (100) as determined in accordance with Treasury Regulation
Section 1.7704-1 (h), and (ii) no LLC Interests may be issued (A) in a
transaction that is required to be registered under the Securities Act, or
(B) in a transaction that is not required to be registered under the
Securities Act by reason of Regulation S thereunder unless the offering
and sale of the LLC Interests would not have been required to be
registered under the Securities Act if the LLC Interests had been offered
and sold within the United States, or in any transaction that would
otherwise violate the securities or other laws of any jurisdiction.
(f) Until the earlier to occur of (i) the date of the
consummation of the Subsequent Purchase pursuant to Section 12 of the
Purchase Agreement or (ii) such time as it has become objectively
determinable that AMG will not be required to consummate the Subsequent
Purchase pursuant to Section 12 of the Purchase Agreement, any issuance of
LLC Points by the LLC shall require the prior written approval of FAID
(such approval not to be unreasonably withheld).
SECTION 5.6. ADDITIONAL REQUIREMENTS FOR TRANSFER OR FOR ISSUANCE. As
additional conditions precedent to the validity of (x) any Transfer of a
Non-Manager Member's interest in the LLC (or, in the case of a Non-Manager
Member which is not a natural person, direct or
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indirect ownership interests in such Non-Manager Member) (pursuant to Section
5.1), or (y) the issuance of additional LLC Interests (pursuant to Section 5.5
above), such Transfer or issuance (as applicable) shall not: (i) cause the LLC
to become subject to registration as an "investment company" under the 1940 Act,
and the rules and regulations of the SEC thereunder, (ii) result in the
assignment or termination of any contract to which the LLC (or any Controlled
Affiliate thereof) is a party and which individually or in the aggregate are
material (it being understood and agreed that any contract pursuant to which the
LLC or a Controlled Affiliate thereof provides Investment Management Services is
material), or (iii) result in the treatment of the LLC as an association taxable
as a corporation or as a "publicly traded partnership" for federal or state
income tax purposes.
The Manager Member or the Management Committee in its discretion may
require reasonable evidence as to the foregoing, including, without limitation,
a favorable opinion of counsel in form and substance reasonably acceptable to
the Manager Member and the Management Committee (as applicable), the expense of
which shall be borne by the parties to such transaction (and to the extent the
LLC is such a party, shall be paid from the Operating Allocation).
To the fullest extent permitted by law, any Transfer or issuance that
violates the provisions of this Article V shall be null and void.
SECTION 5.7. REGISTRATION OF LLC INTERESTS. The LLC Interests constitute
"securities," as such term is defined in 6 DEL. C. SS. 8-102(15), governed by
Article 8 of the Uniform Commercial Code as in effect in the State of Delaware
(6 DEL. C. SS. 8-101, ET SEQ.). The LLC shall maintain a record of the ownership
of LLC Interests which shall be set forth on Schedule A hereto (and which shall
be updated from time to time to reflect transfers of ownership of LLC Interests
in accordance with the provisions of this Agreement). Subject to restrictions on
the transferability of LLC Interests as set forth herein, LLC Interests shall be
transferred by delivery to the LLC of an instruction by the registered owner of
an LLC Interest requesting registration of transfer of such LLC Interest and the
recording of such transfer in the records of the LLC.
SECTION 5.8. REPRESENTATION OF MEMBERS. The Manager Member and each
Non-Manager Member (including any Additional Non-Manager Member) hereby
represents and warrants to the LLC and each other Member, and acknowledges (as
applicable), that (a) it has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of an
investment in the LLC and making an informed investment decision with respect
thereto, (b) it is able to bear the economic and financial risk of an investment
in the LLC for an indefinite period of time, (c) it is acquiring an interest in
the LLC for investment only and not with a view to, or for resale in connection
with, any distribution to the public or public offering thereof, (d) the equity
interests in the LLC have not been registered under the securities laws of any
jurisdiction and cannot be disposed of unless they are subsequently registered
and/or qualified under applicable securities laws and the provisions of this
Agreement have been complied with, and (e) the execution, delivery and
performance of this Agreement, and of each other agreement referenced herein to
which such Member is a party, by such Member have been duly authorized in all
necessary respects, do not require it to obtain any consent or approval that has
not been obtained and do not contravene or result in a default under any
provision of any existing law or regulation applicable to it, any provision of
its charter, by-laws or other
69
governing documents or any agreement or instrument to which it is a party or by
which it is bound, and this Agreement and each such other agreement referenced
herein to which such Member is a party has been duly executed and delivered by
such Member and is enforceable against such Member in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or limiting creditors' rights generally or
by equitable principles relating to enforceability.
SECTION 5.9. CONVERSION OF LLC POINTS.
(a) Each Series B LLC Point automatically shall convert
("Convert") into one Series A LLC Point as follows:
(i) In the case of a Series B LLC Point which is issued
and outstanding as of the Effective Time, such Series B LLC
Point shall convert into one (1) Series A LLC Point on a date
which is five (5) years from the Effective Time;
(ii) In the case of a Series B LLC Point which is sold
and transferred to a Non-Manager Member pursuant to the Equity
Purchase Program, such Series B LLC Point shall convert into
one (1) Series A LLC Point on the date which is five (5) years
from the date of such sale and transfer pursuant to the Equity
Purchase Program);
(iii) In the case of a Series B LLC Point which is sold
and transferred to a Non-Manager Member pursuant to the
provisions of Section 6.1 hereof, or which is sold and
transferred to such Non-Manager Member pursuant to the
provisions of Section 5.5 hereof, such Series B LLC Point
shall convert into one (1) Series A LLC Point on the date
which is five (5) years from the date of such sale and
transfer; and
(iv) In the case of a Series B LLC Point which is
purchased by the Manager Member (or its assignee) (whether
pursuant to the provisions of Section 3.11 or otherwise), such
Series B LLC Point shall convert into one (1) Series A LLC
Point immediately following the consummation of such purchase
by the Manager Member (or its assignee).
(b) In addition to the foregoing, each Series B LLC Point
which is held by a Non-Manager Member who (i) dies (or whose related
Employee Stockholder dies, in the case of a Non-Manager Member which is
not itself an Employee Stockholder), (ii) has his or her (or whose related
Employee Stockholder, in the case of a Non-Manager Member which is not
itself an Employee Stockholder, has his or her) employment with the LLC
terminate as a result of Permanent Incapacity, or (iii) is removed as a
Member of the LLC pursuant to a Removal Upon the Instruction of the
Management Committee, shall automatically Convert into one (1) Series A
LLC Point as of immediately prior to such event. In addition to the
foregoing, each Series B LLC Point which is held by a Non-Manager Member
who is an Initial Member shall automatically immediately Convert into one
(1) Series A LLC Point as of immediately following a
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delivery by the Manager Member of a written notice expressly exercising
its rights pursuant to Section 3.2(b)(v) of this Agreement.
(c) In connection with any sale and transfer by the Manager
Member (or any of its Affiliates or their respective assignees) of Series
A LLC Points to any Person, the Manager Member may determine in its sole
discretion to convert such Series A LLC Points into an equal number of
Series B-2 LLC Points effective as of immediately prior to such sale and
transfer, and (unless the Manager Member shall otherwise elect in writing
after the Effective Time in its sole discretion) no portion of the Capital
Account of such transferor Member shall be transferred to the Person
receiving such Series B-2 LLC Points.
(d) Upon any sale and transfer of a Purchase Program Point
that is a Series B-1 LLC Point or Series A LLC Point to a Non-Manager
Member pursuant to the Equity Purchase Program, such Series B-1 LLC Point
or Series A LLC Point (as applicable) shall automatically immediately
convert into one (1) Series B-2 LLC Point as of immediately prior to such
sale and transfer (and, in the event of any such Purchase Program Point
that was held by another Member as of immediately prior to such sale and
transfer pursuant to the Equity Purchase Program, no portion of the
Capital Account of such transferor Member shall be transferred to the
Non-Manager Member purchasing such Purchase Program Point).
SECTION 5.10. PURCHASE PROGRAM POINTS. FAID hereby agrees that all of the
Purchase Program Points held by FAID as of the Effective Time (which 5,000
Purchase Program Points constitute the entire Purchase Reserve as of the
Effective Time) shall be subject to subsequent sale and transfer in accordance
with the terms and conditions of the Equity Purchase Program (as the same may be
amended from time to time with the prior written consent of the Manager Member,
FAID and the Management Committee granted after the Effective Time), and
acknowledges and agrees that no consent or other approval of FAID shall be
required for any such sale and transfer pursuant to the Equity Purchase Program.
With respect to each Purchase Program Point held by FAID as of the Effective
Time, each of FAID and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (as its related Employee Stockholder)
covenants and agrees that, from and after the Effective Time until the earliest
of (i) such time as such Purchase Program Point has been sold and transferred by
FAID pursuant to the Equity Purchase Program, (ii) such time as such Purchase
Program Point has been purchased by the Manager Member (or its assignee)
pursuant to Section 3.11 hereof or (iii) three months following the tenth (10th)
anniversary of the Effective Time, FAID shall remain in existence and shall not
Transfer (including without limitation pursuant to the exercise of a Put, and
notwithstanding the Conversion of such Purchase Program Point to a Series A LLC
Point) such Purchase Program Point (other than pursuant to a sale and transfer
made under the Equity Purchase Program), except to the extent that FAID, the
Management Committee and the Manager Member otherwise agree in writing after the
Effective Time (and, for the avoidance of doubt, the other Transfer restrictions
set forth in this Agreement shall thereafter continue to apply to any subsequent
Transfer of such LLC Point). Unless the Manager Member and the Management
Committee each shall have otherwise granted their prior written consent after
the Effective Time, any sale and transfer of Purchase Program Points pursuant to
the Equity Purchase Program shall be accompanied by a simultaneous sale and
transfer of the same number of "Purchase Program Points" (as such term is
defined in the WY LLC Agreement) pursuant to
71
the "Equity Purchase Program" of the WY LLC to the same Person (or to its
Affiliated "Non-Manager Member" under the WY LLC Agreement, as applicable)
purchasing such Purchase Program Points pursuant to the Equity Purchase Program
of the LLC.
ARTICLE VI - TRANSFER OF LLC INTERESTS BY THE
MANAGER MEMBER; REDEMPTION, REMOVAL
AND WITHDRAWAL.
SECTION 6.1. TRANSFERABILITY OF INTEREST.
(a) Except as set forth in this Section 6.1, without the prior
written approval of the Management Committee, (i) none of AMG's direct or
indirect interest in the LLC (including, without limitation, any interest
which has been Transferred to the Manager Member) may be Transferred
(other than as a result of any merger, consolidation, leveraged
recapitalization, sale of all or substantially all of its assets or
similar transaction of AMG (regardless of how structured), which shall in
no event be subject to the restrictions set forth in this Section 6.1 or
require the consent of the Management Committee or any Member of the LLC)
and (ii) the LLC may not undergo any merger, consolidation, conversion,
leveraged recapitalization, sale of all or substantially all of its assets
or similar transaction (any of which transactions described in this clause
(ii) shall also require the prior written consent of the Manager Member
granted after the Effective Time); PROVIDED, HOWEVER, (A) it is understood
and agreed that, in connection with the operation of the business of AMG
and the Manager Member (including, without limitation, the financing of
its interest herein and direct or indirect interests in additional
investment management companies), AMG's direct or indirect interests in
the LLC may be pledged and encumbered and lien holders of AMG's interests
shall have and be able to exercise the rights of secured creditors with
respect to such interests, (B) AMG may, with the prior written approval of
the Management Committee (such approval not to be unreasonably withheld),
Transfer some (but not a majority) of its LLC Points to a Person who is
not a Member but who is an Officer or employee of the LLC (or any
Controlled Affiliate thereof) or who becomes an Officer or employee of the
LLC (or any Controlled Affiliate thereof) or a Person majority owned by
any such Person, (C) AMG may, with the prior written approval of the
Management Committee (such approval not to be unreasonably withheld),
Transfer some (but not a majority) of its LLC Points to existing
Non-Manager Members, and (D) AMG may Transfer all or any portion of its
LLC Interests to other direct or indirect wholly-owned subsidiaries of AMG
(which shall thereafter be subject to the provisions of this Agreement
applicable to the Manager Member).
Notwithstanding anything else set forth herein, AMG may, with
the prior written approval of the Management Committee, Transfer all of
its direct and indirect interests in the LLC to a bona fide third party
purchaser in a single transaction or a series of related transactions
(whether structured as an equity sale, a merger, a consolidation or
otherwise), and, in any such case, each of the Non-Manager Members shall
be required to Transfer, in the same transaction or transactions, all
their interests in the LLC (and to
72
enter into such customary documentation in connection therewith as is
entered into by AMG); PROVIDED, however, that the aggregate purchase price
(including all forms of consideration, including without limitation
amounts to be received in the form of equity participation rights) to be
received by the Members (other than bona fide compensation for future
services to be performed following such transaction by any Member) shall
be allocated among the Members in the same manner as the purchase price
would have been distributed pursuant to Section 4.4 following a sale of
all or substantially all of the assets of the LLC and its Controlled
Affiliates and the WY LLC and its Controlled Affiliates (with any net gain
or loss from such transaction first having been allocated among the
Members in accordance with Section 4.2(e) or 4.2(f) as applicable).
Until the earlier to occur of (i) the date of the consummation
of the Subsequent Purchase pursuant to Section 12 of the Purchase
Agreement or (ii) such time as it has become objectively determinable that
AMG will not be required to consummate the Subsequent Purchase pursuant to
Section 12 of the Purchase Agreement, any transaction requiring the prior
written approval of the Management Committee under this Section 6.1(a)
shall also require the prior written approval of FAID (other than a
Transfer by AMG described in clause (B) of the proviso to the first
paragraph of this Section 6.1(a), which shall not require the approval of
FAID).
Upon any of the foregoing transactions, the Manager Member
shall make the appropriate revisions to SCHEDULE A hereto.
(b) In the case of a Transfer upon foreclosure pursuant to a
pledge of or lien on AMG's direct or indirect interest in the LLC pursuant
to Section 6.1(a)(A), each transferee shall sign a counterpart signature
page to this Agreement agreeing thereby to become either a Non-Manager
Member or the Manager Member (provided, however, that once one such other
transferee elects to become the Manager Member, no transferee (other than
a subsequent transferee of such new Manager Member) may elect to be a
Manager Member hereunder. If the transferees pursuant to Section 6.1(a)(A)
receive all of the Manager Member's LLC Interests and none of such
transferees elects to become the Manager Member, then the Manager Member
shall be deemed to have withdrawn from the LLC. If, however, one of the
transferees elects to become the Manager Member and executes a counterpart
signature page to this Agreement agreeing thereby to become the Manager
Member, then notwithstanding any other provision hereof to the contrary,
the old Manager Member shall thereupon be permitted to withdraw from the
LLC as Manager Member.
(c) In the case of a Transfer pursuant to the second paragraph
of Section 6.1(a), the old Manager Member shall be deemed to have
withdrawn and its transferee shall be deemed to have become the new
Manager Member hereunder.
SECTION 6.2. RESIGNATION, REDEMPTION, AND WITHDRAWAL. To the fullest
extent permitted by law, except as set forth in Section 6.1, without the prior
written consent of the Management Committee, the Manager Member shall not have
the right to resign or withdraw from the LLC as Manager Member. With the prior
written consent of the Management Committee, the Manager Member may resign or
withdraw as Manager Member upon prior
73
written notice to the LLC. Without the prior written consent of the Management
Committee, the Manager Member shall have no right to have all or any portion of
its interest in the LLC redeemed. Any resigned, withdrawn or removed Manager
Member shall retain its interest in the capital of the LLC and its other
economic rights under this Agreement as a Non-Manager Member having the number
of LLC Points held by the Manager Member prior to its resignation, withdrawal or
removal (except as otherwise may be agreed to in writing following the Effective
Time by such Manager Member in connection with such resignation, withdrawal or
removal). If a Manager Member who has resigned, withdrawn or been removed no
longer has any economic interest in the LLC, then upon such resignation,
withdrawal or removal such Person shall cease to be a Member of the LLC.
ARTICLE VII - PUT OF LLC INTERESTS.
SECTION 7.1. NON-MANAGER MEMBER PUTS.
(a) Each Non-Manager Member may, at such Non-Manager Member's
option and subject to the terms and conditions set forth in this Section
7.1, cause the Manager Member (or its assignee) to purchase portions of
the Vested Series A LLC Points held by such Non-Manager Member (a "Put").
(b) For so long as a Non-Manager Member (or, in the case of a
Non-Manager Member which is not a natural person, its related Employee
Stockholder) remains employed by the LLC or the WY LLC (as applicable),
such Non-Manager Member may (subject to the other terms and conditions set
forth in this Section 7.1) cause the Manager Member (or its assignee) to
purchase up to ten percent (10%) of the Series A LLC Points that are
Initial LLC Points of such Non-Manager Member (together with any such
Series A LLC Points that are Initial LLC Points which previously could
have been sold to the Manager Member by such Non-Manager Member pursuant
to this Section 7.1(b) but were not previously sold) from such Non-Manager
Member (and/or any Permitted Transferees of such Non-Manager Member) on
the last business day of the month of March, starting with the last
business day of the first month of March that is at least five (5) years
following the Effective Time (each a "Put Purchase Date"); PROVIDED,
HOWEVER, that only up to an aggregate of fifty percent (50%) of a
Non-Manager Member's Series A LLC Points that are Initial LLC Points may
be sold by such Non-Manager Member pursuant to this Section 7.1(b); and
PROVIDED, FURTHER, that the Manager Member shall in no event be required
to purchase in excess of 10% of the total outstanding LLC Points of the
LLC during any single calendar year pursuant to this Section 7.1 (measured
as of the applicable Put Purchase Date before giving effect to any Puts in
that calendar year), and in the event a greater number of LLC Points have
purported to be Put pursuant to this Section 7.1 during any single
calendar year, the number of LLC Points that are actually Put by
Non-Manager Members pursuant to this Section 7.1 in such calendar year
shall be reduced to a number that is equal to 10% of the total outstanding
LLC Points of the LLC (as of such Put Purchase Date before giving effect
to any Puts in that calendar year), with such reduction borne pro rata by
the Non-Manager Members exercising Puts in that calendar year in
proportion to the number of
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LLC Points they have attempted to Put in such calendar year pursuant to
this Section 7.1, and the remainder of such purported Puts in such
calendar year shall be deemed to have been irrevocably withdrawn for such
calendar year; and PROVIDED, FURTHER, that for purposes of the percentage
limitations set forth in this Section 7.1(b), the number of Initial LLC
Points held by FAID shall be reduced by the number of Purchase Program
Points existing as of immediately following the Effective Time (but, for
the avoidance of doubt, such Purchase Program Points shall nonetheless be
deemed to be "outstanding LLC Points" for purposes of determining the
number of outstanding LLC Points under this Agreement); and PROVIDED,
FURTHER, that, notwithstanding any of the other timing and volume
limitations and notice requirements set forth in this Section 7.1 to the
contrary, in the event that any LLC Points held by either ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
or ▇▇▇▇ ▇▇▇▇▇▇ (and their respective Permitted Transferees) were not
purchased pursuant to Section 3.11 hereof in connection with the
Retirement of such applicable Employee Stockholder on the eleventh (11th)
anniversary of the Effective Time as a result of the operation of the
third proviso to Section 3.11(a) hereof, such Designated Initial Member
shall be permitted to Put one-half (1/2) of the remaining Vested Series A
LLC Points held by it and its Permitted Transferees on the twelfth (12th)
anniversary of the Effective Time by written notice of such Put to the
Manager Member delivered not later than one month prior to the twelfth
(12th) anniversary of the Effective Time (and such written notice shall
constitute the Put Notice for such Put, the twelfth (12th) anniversary
shall constitute the Put Purchase Date for such LLC Points, the Put Price
shall be determined in accordance with Section 7.1(e) hereof and the
manner of payment shall be determined in accordance with Section 7.1(f)
hereof)). Notwithstanding any other provision set forth herein, a
Non-Manager Member may only exercise its rights under this Section 7.1(b)
if the Non-Manager Member simultaneously causes the WY LLC Manager Member
to purchase an equal number of Initial WY LLC Points pursuant to the
provisions of Section 7.1(b) of the WY LLC Agreement (and the Manager
Member shall be permitted in its sole discretion (but shall not be
required) to delay the consummation of the purchase of LLC Points pursuant
to this Section 7.1(b) until such time as such Non-Manager Member (or its
Affiliated "Non-Manager Member" under the WY LLC Agreement, as applicable)
simultaneously sells such Initial WY LLC Points to the WY LLC Manager
Member pursuant to the provisions of Section 7.1(b) of the WY LLC
Agreement).
(c) For so long as a Non-Manager Member (or, in the case of a
Non-Manager Member which is not a natural person, its related Employee
Stockholder) remains employed by the LLC or the WY LLC (as applicable),
such Non-Manager Member may (subject to the other terms and conditions set
forth in this Section 7.1) cause the Manager Member (or its assignee) to
purchase up to ten percent (10%) of any Vested Series A LLC Points
resulting from the Conversion of Series B-2 LLC Points sold and
transferred to such Non-Manager Member pursuant to the Equity Purchase
Program (each such sale and transfer of Series B LLC Points to a
Non-Manager Member pursuant to the Equity Purchase Program being referred
to herein as a "Purchase Program Sale") from such Non-Manager Member
(and/or any Permitted Transferees of such Non-Manager Member) on any Put
Purchase Date starting on the first Put Purchase Date which is at least
five (5) years following the date of such Purchase Program Sale, PROVIDED
that, in the case of any Non-Manager Member who was expressly identified
on Annex B to the Equity Purchase Agreement as of the Effective Time as a
designated
75
future purchaser of an expressly specified number of Series B-2 LLC Points
pursuant to the Equity Purchase Program and who in fact purchased all or a
portion of such identified Series B-2 LLC Points pursuant to the Equity
Purchase Program in a Purchase Program Sale, on the first Put Purchase
Date which is at least five (5) years following the date of such Purchase
Program Sale such Non-Manager Member may cause the Manager Member (or its
assignee) to purchase up to fifty percent (50%) of any Vested Series A LLC
Points resulting from the Conversion of such Series B-2 LLC Points sold
and transferred to such Non-Manager Member in such Purchase Program Sale
(subject to the second proviso contained in Section 7.1(b)); PROVIDED,
HOWEVER, that only up to an aggregate of fifty percent (50%) of the Series
A LLC Points resulting from the Conversion of Series B LLC Points sold and
transferred to a Non-Manager Member in a particular Purchase Program Sale
may be sold by such Non-Manager Member pursuant to this Section 7.1(c);
and PROVIDED, FURTHER, that any such sale pursuant to this Section 7.1(c)
shall be subject to the second proviso contained in Section 7.1(b).
Notwithstanding any other provision set forth herein, a Non-Manager Member
may only exercise its rights under this Section 7.1(c) if the Non-Manager
Member simultaneously causes the WY LLC Manager Member to purchase an
equal number of Vested WY LLC Points (acquired pursuant to the same
Purchase Program Sale as those Vested LLC Points being sold by such
Non-Manager Member pursuant to this Section 7.1(c)) pursuant to the
provisions of Section 7.1(c) of the WY LLC Agreement (and the Manager
Member shall be permitted in its sole discretion (but shall not be
required) to delay the consummation of the purchase of LLC Points pursuant
to this Section 7.1(c) until such time as such Non-Manager Member (or its
Affiliated "Non-Manager Member" under the WY LLC Agreement, as applicable)
simultaneously sells such Vested WY LLC Points to the WY LLC Manager
Member pursuant to the provisions of Section 7.1(c) of the WY LLC
Agreement).
(d) If a Non-Manager Member desires to exercise its rights
under Section 7.1(b) or 7.1(c) above, it and its Employee Stockholder
shall give the Manager Member, AMG, each other Employee Stockholder and
the LLC irrevocable written notice (a "Put Notice") on or prior to the
preceding October 1 (the "Notice Deadline"), stating that it is electing
to exercise such rights, the number of Vested Series A LLC Points (the
"Put LLC Points") to be sold in the Put, to what extent such Put is a Put
of (A) Initial LLC Points ("Initial Put LLC Points") or (B) Series A LLC
Points resulting from the Conversion of Series B-2 LLC Points received
upon a Purchase Program Sale) ("Purchase Program Put LLC Points") and, if
Purchase Program Put LLC Points are to be included in such Put, what
Purchase Program Sale they are associated with. Puts in any given calendar
year for which Put Notices are received before the Notice Deadline for
that calendar year shall be completed as follows: AMG shall purchase from
each Non-Manager Member (and/or its Permitted Transferees, as applicable)
that number of Put LLC Points as is equal to the sum of (i) the number of
Initial Put LLC Points to be sold by such Non-Manager Member (and/or its
Permitted Transferees, as applicable) and designated as such in such
Non-Manager Member's Put Notice, up to the maximum number of Initial Put
LLC Points permitted by Section 7.1(b) to be Put by such Non-Manager
Member in that year, and (ii) the number of Purchase Program Put LLC
Points to be sold by such Non-Manager Member (and/or its Permitted
Transferees, as applicable) and designated as such in such Non-Manager
Member's Put Notice, up to the
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maximum number of Purchase Program Put LLC Points permitted by Section
7.1(c) to be Put by such Non-Manager Member in that year.
(e) The aggregate purchase price payable by the Manager Member
(or its assignee) upon the purchase of Put LLC Points pursuant to a Put
(the "Put Price") on a Put Purchase Date shall be an amount equal to the
aggregate fair market value of the LLC Points purchased pursuant to a Put
hereunder, which shall be conclusively determined as follows:
(i) In the case of Put LLC Points other than Purchase Program
Put LLC Points, an amount equal to the product of
(A) the Book Value thereof, multiplied by
(B) a fraction, the numerator of which is the number of
Put LLC Points to be purchased from such Non-Manager Member on
such Put Purchase Date pursuant to such Put, and the
denominator of which is the number of LLC Points outstanding
on such Put Purchase Date (before giving effect to any
issuances or redemptions of LLC Points on such Date)
; PROVIDED, HOWEVER, that, if the Put Price determined
pursuant to this clause (i) exceeds the "Put Price" determined
under clause (i) of Section 7.1(e) of the WY LLC Agreement
(before application of the proviso to such clause (i) of
Section 7.1(e) of the WY LLC Agreement) in connection with the
corresponding purchase of WY LLC Points priced pursuant to
such provision of the WY LLC Agreement, then the Put Price
determined under this clause (i) shall be reduced by the
amount of such excess; and
(ii) In the case of Purchase Program Put LLC Points, an amount
equal to their Purchase Program Points FMV
; PROVIDED, HOWEVER, that, if the Purchase Program Points FMV
determined pursuant to this clause (ii) exceeds the "Purchase
Program Points FMV" determined under clause (ii) of Section 7.1(e)
of the WY LLC Agreement (before application of the proviso to such
clause (ii) of Section 7.1(e) of the WY LLC Agreement) in connection
with the corresponding purchase of WY LLC Points priced pursuant to
such provision of the WY LLC Agreement, then the Purchase Program
Points FMV determined under this clause (ii) shall be reduced by the
amount of such excess.
(f) In the case of any purchase pursuant to a Put, the Put
Price shall be paid by the Manager Member (or, if the Manager Member shall
have assigned its obligation to any other Person pursuant to paragraph (g)
below, such other Person) on the relevant Put Purchase Date as follows, in
each case against delivery of such documents or instruments of transfer as
may reasonably be requested by the Manager Member (including
representations and warranties from the transferring Non-Manager Member
and any Permitted Transferees thereof which are selling Put LLC Points
pursuant to such
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Put that they have sole record and beneficial title to the Put LLC Points,
free and clear of any Liens other than those imposed by this Agreement and
addressing such other customary matters as to authority, enforceability
and similar subjects as the Manager Member reasonably requests):
(i) In the case of a purchase of Put LLC Points other than
Purchase Program Put LLC Points, either (in the sole discretion of
the Manager Member) (A) by certified check issued to the Non-Manager
Member exercising such Put in the amount of the entire Put Price, or
(B) by (I) certified check issued to the Non-Manager Member
exercising such Put in an amount equal to fifty percent (50%) of the
Put Price and (II) delivery of AMG Shares having a value equal to
fifty percent (50%) of the Put Price as determined pursuant to the
procedures set forth in Section 7.1(e)(i) ; or
(ii) In the case of a purchase of Purchase Program Put LLC
Points,
(A) in the case of any such purchase where the Purchase
Program Points FMV determined pursuant to Section 7.1(e)(ii)
is less than or equal to the amount that would have been
calculated under Section 7.1(e)(i) if such Put LLC Points had
not been Purchase Program Put LLC Points, then in the manner
set forth under Section 7.1(f)(i); or
(B) in the case of any such purchase where the Purchase
Program Points FMV determined pursuant to Section 7.1(e)(ii)
is greater than the amount that would have been calculated
under Section 7.1(e)(i) if such Put LLC Points had not been
Purchase Program Put LLC Points, then (I) that portion of the
Purchase Program Points FMV equal to such calculation under
Section 7.1(e)(i) shall be paid in the manner set forth under
Section 7.1(f)(i), and (II) the excess shall be paid one
hundred percent (100%) in Contingent Consideration at the same
time payment is made pursuant to clause (I) of this Section
7.1(f)(ii)(B).
(g) The Manager Member may (i) assign any or all of its rights
and obligations under this Section 7.1, in one or more instances, to any
other direct or indirect wholly-owned subsidiary of AMG or (ii) with the
written consent of the Management Committee, assign any or all of its
rights and obligations under this Section 7.1, in one or more instances,
to the LLC; PROVIDED, HOWEVER, that if the Manager Member assigns any or
all its rights and obligations under this Section 7.1 to the LLC, then the
Manager Member shall assign the identical and proportional rights and
obligations under the WY LLC Agreement to the WY LLC; and PROVIDED,
FURTHER, that, in the event such assignee is a wholly-owned subsidiary of
AMG and thereafter ceases to be so owned, such assignee shall reassign to
the Manager Member (or another direct or indirect wholly-owned subsidiary
of AMG) all LLC Interests so acquired; and PROVIDED, FURTHER, that no such
assignment shall relieve the Manager Member of its obligation to make
payment of a Put Price (to the extent not paid by any such assignee).
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(h) In the case of any Put, as of the applicable Put Purchase
Date, each Non-Manager Member (and each of its applicable Permitted
Transferees) selling Put LLC Points shall cease to hold the Put LLC Points
purchased on the Put Purchase Date and shall cease to hold a pro-rata
portion of such Non-Manager Member's (and each such Permitted
Transferee's) Capital Account (which shall have been transferred to the
Manager Member or its assignee making such purchase of Put LLC Points, or
canceled by the LLC if the LLC is the assignee making such purchase) and
shall no longer have any rights with respect to such portion of its LLC
Interests.
(i) In the event that the Manager Member elects pursuant to
the provisions of this Section 7.1 or pursuant to the provisions of
Section 3.11 hereof (as applicable) to pay a portion of the Put Price or
the Purchase Price under Section 3.11 hereof (as applicable) by the
delivery of AMG Shares, the Manager Member shall give irrevocable written
notice of such election to the Non-Manager Member exercising the Put (or
the Selling Member pursuant to Section 3.11 hereof, as applicable) not
less than twenty three trading days prior to the date on which such AMG
Shares are required to be delivered pursuant to this Section 7.1 or
Section 3.11 hereof (as applicable), and the number of AMG Shares required
to be delivered by the Manager Member shall be equal to the quotient
obtained by dividing (A) that portion of the Put Price under this Section
7.1 or the Purchase Price under Section 3.11 hereof (as applicable) to be
paid in AMG Shares by (B) the Average AMG Stock Price, where:
(i) The "Average AMG Stock Price" is defined to mean the
average (arithmetic mean) Stock Price of AMG Shares during the
twenty consecutive trading days ending on (and including) the third
complete trading day immediately prior to the date on which such AMG
Shares are required to be delivered hereunder; and
(ii) the "Stock Price" is defined to mean, for any trading
day, the closing price for one AMG Share, which shall be the last
sale price or, in the case no such sale takes place on such trading
day, the average of the closing bid and asked prices, in either case
as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange or other market on which AMG Shares is listed or
admitted to trading; or, if not listed or admitted to trading on any
national securities exchange, the last quoted price (or, if not so
quoted, the average of the last quoted high bid and low asked
prices) in the over-the-counter market, as reported by NASDAQ or
such other system then in use; or, if on any such trading day no
bids are 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 security reasonably selected by the Board of
Directors of AMG.
In the event that there is a stock split (or reverse stock split), stock
dividend or other similar event during the relevant measuring periods
under the foregoing calculations, equitable and appropriate adjustments
shall be made in the application of the foregoing calculations of AMG's
Average Stock Price to take account of such event.
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ARTICLE VIII - DISSOLUTION AND TERMINATION.
SECTION 8.1. NO DISSOLUTION. The LLC shall not be dissolved by any
admission of Additional Non-Manager Members, substitute Non-Manager Members or
substitute Manager Members, or by the death, retirement, withdrawal,
resignation, removal or bankruptcy of any Member from the LLC.
SECTION 8.2. EVENTS OF DISSOLUTION. The LLC shall be dissolved and its
affairs wound up upon the occurrence of any of the following events (provided,
however, that, unless the Manager Member and the Management Committee have
otherwise consented in writing following the Effective Time, the LLC shall not
be voluntarily dissolved or wound up unless the WY LLC is simultaneously
dissolved and wound up):
(a) any date approved by the written consent of both the
Management Committee and the Manager Member granted after the Effective
Time (in their respective sole discretion); or
(b) at any time there are no Members of the LLC, unless the
LLC is continued in accordance with the Act; or
(c) upon the entry of a decree of judicial dissolution
under ss.18-802 of the Act.
SECTION 8.3. NOTICE OF DISSOLUTION. Upon the dissolution of the LLC, the
Manager Member shall promptly notify the other Members of such dissolution.
SECTION 8.4. LIQUIDATION. Upon the dissolution of the LLC, the Manager
Member, or if there is none, a Person or Persons approved by the holders of more
than fifty percent (50%) of the Vested LLC Points then outstanding (including
those held by the Person that was the Manager Member) shall carry out the
winding up of the LLC (in such capacity, the "Liquidating Trustee"), and shall
immediately commence to wind up the LLC's affairs; PROVIDED, HOWEVER, that a
reasonable time shall be allowed for the orderly liquidation of the assets of
the LLC and the satisfaction of liabilities to creditors so as to enable the
Members to minimize the normal losses attendant upon a liquidation. The Members
shall continue to share in allocations and distributions during liquidation in
the same proportions, as specified in Article IV hereof, as before liquidation.
The proceeds of liquidation shall be distributed as set forth in Section 4.4
hereof.
SECTION 8.5. TERMINATION. The LLC shall terminate when all of the assets
of the LLC, after payment of or due provision for all debts, liabilities and
obligations of the LLC, shall have been distributed to the Members in the manner
provided for in Section 4.4 and the Certificate shall have been canceled in the
manner required by the Act.
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SECTION 8.6. CLAIMS OF THE MEMBERS. The Members and former Members shall
look solely to the LLC's assets for the return of their Capital Contributions
and Capital Accounts, and if the assets of the LLC remaining after payment of or
due provision for all debts, liabilities and obligations of the LLC are
insufficient to return such Capital Contributions or Capital Accounts, the
Members and former Members shall have no recourse against the LLC or any other
Member (including, without limitation, the Manager Member).
ARTICLE IX - RECORDS AND REPORTS.
SECTION 9.1. BOOKS AND RECORDS. The Management Committee shall (and each
of the Non-Manager Members and Employee Stockholders shall use its reasonable
best efforts to) cause the LLC to keep complete and accurate books of account
with respect to the operations of the LLC, prepared in accordance with GAAP.
Such books shall reflect that the interests in the LLC have not been registered
under the Securities Act, and that the interests may not be sold or transferred
without registration under the Securities Act or exemption therefrom and without
compliance with Article V or Article VI of this Agreement. Such books shall be
maintained at the principal office of the LLC in Greenville, Delaware or at such
other place as the Management Committee shall determine (with the prior written
consent of the Manager Member granted after the Effective Time).
SECTION 9.2. ACCOUNTING. The LLC's books of account shall be kept on the
accrual method of accounting (consistently applied), or on such other method of
accounting as the Manager Member may from time to time determine with the advice
of the Independent Public Accountants, and shall be closed and balanced at the
end of each LLC fiscal year and shall be maintained for each fiscal year in a
manner consistent with GAAP and with the principles and/or policies of AMG
applied consistently with respect to its Controlled Affiliates. The taxable year
of the LLC shall be the twelve months ending December 31, or such other taxable
year as the Manager Member may designate with the advice of the Independent
Public Accountants.
SECTION 9.3. FINANCIAL AND COMPLIANCE REPORTS. The Management Committee
shall use its reasonable best efforts (and each of the Non-Manager Members and
Employee Stockholders shall use its reasonable efforts) to cause the LLC to
furnish to the Manager Member each of the following:
(a) Within ten (10) days after the end of each month and each
fiscal quarter, information regarding the consolidated assets under
management of the LLC, the WY LLC and any of their respective Controlled
Affiliates (including the components of any changes from the information
provided with respect to the prior period, information regarding net
client cash flows and information regarding market appreciation and
depreciation in client portfolios), and an unaudited financial report of
the LLC (consolidated with any Controlled Affiliates thereof) prepared in
accordance with GAAP using the accrual method of accounting consistently
applied (except that the financial report may (i) be subject to normal
year-end audit adjustments which are neither individually nor in the
aggregate material and (ii) not contain all notes thereto which may be
required in accordance with GAAP to be included in audited financial
statements),
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which unaudited financial report shall have been certified by the most
senior financial officer of the LLC to have been so prepared and shall
include the following:
(i) statements of operations, changes in members' capital and
cash flows for such month or quarter, together with a cumulative
income statement from the first day of the then-current fiscal year
to the last day of such month or quarter; and
(ii) a balance sheet as of the last day of such month or
quarter.
(b) Within thirty (30) days after the end of each fiscal year
of the LLC, audited financial statements of the LLC (consolidated with any
Controlled Affiliates thereof), which shall include statements of
operations, changes in members' capital and cash flows for such year and a
balance sheet as of the last day thereof, each prepared in accordance with
GAAP, using the accrual method of accounting, consistently applied,
certified by the Independent Public Accountants.
(c) If requested by the Manager Member, within twenty-five
(25) days after the end of each calendar quarter, the LLC's (and any
Controlled Affiliates' thereof) operating budget for each of the next four
(4) fiscal quarters, in such form and containing such estimates as may be
requested by the Manager Member from time to time.
(d) If requested by the Manager Member, copies of all
financial statements, reports, notices, press releases and other documents
released to the public during such period.
(e) As promptly as is reasonably possible following request by
the Manager Member from time to time, such other financial, operations,
performance or other information or data as may be requested.
SECTION 9.4. MEETINGS.
(a) The Management Committee and the Officers shall hold such
regular meetings at the LLC's principal place of business with
representatives of the Manager Member as may be reasonably requested by
the Manager Member from time to time. These meetings shall be attended
(either in person or by telephone) by such members of the Management
Committee, Officers and other employees of the LLC as may be requested by
the Manager Member or any of the Officers.
(b) At each meeting described in Section 9.4(a), the Officers
and other employees of the LLC shall discuss such matters regarding the
LLC and its performance, operations and/or budgets as may be reasonably
requested by the Manager Member, and each of the attendees (whether in
person or by telephone) at such meeting shall have the right to submit
proposals and suggestions regarding the LLC, and the attendees at the
meeting shall, in good faith, discuss and consider such proposals and
suggestions.
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SECTION 9.5. TAX MATTERS.
(a) The Manager Member shall cause to be prepared and filed on
or before the due date (or any extension thereof) federal, state, local
and foreign tax or information returns required to be filed by the LLC (or
any Controlled Affiliate thereof), and shall provide to the other Members,
as soon as reasonably practicable following the close of each taxable year
of the LLC, any information in the Manager Member's possession which is
necessary to allow the other Members to timely prepare and file any
federal, state or local income tax returns (including IRS Schedule K-1).
The Manager Member, to the extent that funds are available at the LLC (or
at any Controlled Affiliates thereof), shall cause the LLC (or such
Controlled Affiliate thereof) to pay any taxes payable by the LLC (or such
Controlled Affiliate) (it being understood that the expenses of
preparation and filing of such tax returns, and the amounts of such taxes,
are to be treated as operating expenses of the LLC to be paid from the
Operating Allocation), provided that the Manager Member shall not be
required to cause the LLC (or any Controlled Affiliate thereof) to pay any
tax so long as the LLC (or such Controlled Affiliate thereof) is in good
faith and by appropriate legal proceedings contesting the validity,
applicability or amount thereof and such contest does not materially
endanger any right or interest of the LLC (or such Controlled Affiliate)
and adequate reserves therefor have been set aside by the LLC (or such
Controlled Affiliate). Neither the LLC nor any Employee Stockholder or
Non-Manager Member shall do anything or take any action which would be
inconsistent with the foregoing or with the Manager Member's actions as
authorized by the foregoing provisions of this Section 9.5(a).
(b) The Manager Member shall be the tax matters partner for
the LLC pursuant to Sections 6221 through 6233 of the Code.
(c) The Manager Member shall, in its sole discretion, make or
cause to be made by the LLC (and any Controlled Affiliates thereof) any
and all elections for federal, state, local and foreign tax matters,
including any election to adjust the basis of the LLC's (or a Controlled
Affiliate's) property pursuant to Section 754 of the Code or any
comparable provision of state, local or foreign law.
ARTICLE X - LIABILITY, EXCULPATION AND INDEMNIFICATION.
SECTION 10.1. LIABILITY. Except as otherwise provided by the Act, the
debts, obligations and liabilities of the LLC (or of any Controlled Affiliate
thereof), whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the LLC (or such Controlled Affiliate),
and no Covered Person shall be obligated personally for any such debt,
obligation or liability of the LLC (or any Controlled Affiliate thereof) solely
by reason of being a Covered Person.
SECTION 10.2. EXCULPATION.
(a) No Covered Person shall be liable to the LLC, any
Controlled Affiliate thereof or any other Covered Person for any loss,
damage or claim incurred by
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reason of any act or omission performed or omitted by such Covered Person
in good faith on behalf of the LLC or any Controlled Affiliate thereof and
in a manner reasonably believed to be within the scope of authority
conferred on such Covered Person by this Agreement, except that a Covered
Person shall be liable for any such loss, damage or claim incurred by
reason of any action or inaction of such Covered Person which constituted
fraud, gross negligence, willful misconduct or a breach of this Agreement
or, in the case of a Non-Manager Member or Employee Stockholder, the
Employment Agreement and/or Non-Solicitation Agreement to which he, she or
it is a party.
(b) A Covered Person shall be fully protected in relying in
good faith upon the records of the LLC (or of any Controlled Affiliate
thereof) and upon such information, opinions, reports or statements
presented to the Covered Person by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or
expert competence and who has been selected with reasonable care by or on
behalf of the LLC (or any Controlled Affiliate thereof).
SECTION 10.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, a Covered Person
has duties (including fiduciary duties) and liabilities relating thereto
to the LLC, any Controlled Affiliate thereof or any Member, a Covered
Person acting under this Agreement shall not be liable to the LLC, any
Controlled Affiliate thereof or any Member for its good faith reliance on
the provisions of this Agreement. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of a Covered Person
otherwise existing at law or in equity, are agreed by the parties hereto
to replace such other duties and liabilities of such Covered Person.
(b) Whenever in this Agreement the Manager Member is permitted
or required to make a decision (i) in its "discretion" or "sole
discretion" or under a grant of similar authority or latitude (or where no
express standard is provided herein for such decision), the Manager Member
shall be entitled to consider such interests and factors as it desires,
including its own interests, and to reach any decision it may select
regardless of the reasons therefor, or (ii) in its "good faith",
"reasonable discretion" or under another express standard, the Manager
Member shall act under such express standard and shall not be subject to
any other or different standard imposed by this Agreement or other
applicable law.
SECTION 10.4. INDEMNIFICATION. To the fullest extent permitted by
applicable law, a Covered Person shall be entitled to indemnification from the
LLC for any loss, damage or claim (including any amounts paid in settlement of
any such claims) including expenses, fines, penalties and counsel fees and
expenses incurred by such Covered Person ("Losses") by reason of any act or
omission performed or omitted by such Covered Person in good faith on behalf of
the LLC (or any Controlled Affiliate thereof) and in a manner reasonably
believed to be within the scope of authority conferred on such Covered Person by
this Agreement, except that no Covered Person shall be entitled to be
indemnified in respect of any Losses incurred by such Covered Person by reason
of any action or inaction of such Covered Person which constituted fraud, gross
negligence, willful misconduct or a breach of this Agreement, the Purchase
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Agreement or, in the case of the Non-Manager Member or Employee Stockholder, the
Employment Agreement and/or Non-Solicitation Agreement to which he, she or it is
a party; PROVIDED, HOWEVER, that any indemnity under this Section 10.4 shall be
provided out of and to the extent of LLC assets only, and no Member or Covered
Person shall have any personal liability to provide indemnity on account
thereof.
SECTION 10.5. NOTICE; OPPORTUNITY TO DEFEND AND EXPENSES.
(a) Promptly after receipt by any Covered Person from any
third party of notice of any demand, claim or circumstance that,
immediately or with the lapse of time, would reasonably be expected to
give rise to a claim or the commencement (or threatened commencement) of
any action, proceeding or investigation (an "Asserted Liability") that
could reasonably be expected to result in any Losses with respect to which
the Covered Person might be entitled to indemnification from the LLC under
Section 10.4, the Covered Person shall give written notice thereof (the
"Claims Notice") to the Management Committee and the Manager Member;
PROVIDED, HOWEVER, that a failure to give such notice shall not prejudice
the Covered Person's right to indemnification hereunder except to the
extent that the LLC, a Controlled Affiliate thereof or the Manager Member
is actually prejudiced thereby. The Claims Notice shall describe the
Asserted Liability in such reasonable detail as is practicable under the
circumstances, and shall, to the extent practicable under the
circumstances, indicate the amount (estimated, if necessary) of the Loss
that has been or may be suffered by the Covered Person.
(b) The LLC may elect to compromise or defend, at its own
expense and by its own counsel, any Asserted Liability; PROVIDED, HOWEVER,
that if the named parties to any action or proceeding include (or could
reasonably be expected to include) both the LLC (or a Controlled Affiliate
thereof) and a Covered Person, or more than one Covered Persons, and the
LLC is advised by counsel that representation of both parties by the same
counsel would be inappropriate under applicable standards of professional
conduct, the Covered Person may engage separate counsel at the expense of
the LLC. If the LLC elects to compromise or defend such Asserted
Liability, it shall within twenty (20) business days (or sooner, if the
nature of the Asserted Liability so requires) notify the Covered Person of
its intent to do so, and the Covered Person shall cooperate, at the
expense of the LLC, in the compromise of, or defense against, such
Asserted Liability. If the LLC elects not to compromise or defend the
Asserted Liability, fails to notify the Covered Person of its election as
herein provided, contests its obligation to provide indemnification under
this Agreement, or fails to make or ceases making a good faith and
diligent defense, the Covered Person may pay, compromise or defend such
Asserted Liability all at the expense of the Covered Person (in accordance
with the provisions of Section 10.5(c) below). Except as set forth in the
preceding sentence, neither the LLC nor the Covered Person may settle or
compromise any claim over the objection of the LLC or the Manager Member;
PROVIDED, HOWEVER, that consent to settlement or compromise shall not be
unreasonably withheld. In any event, the LLC and the Covered Person may
participate at their own expense, in the defense of such Asserted
Liability. The Covered Person shall in any event make available to the LLC
any books, records or
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other documents within its control that are necessary or appropriate for
such defense, all at the expense of the LLC.
(c) If the LLC elects not to compromise or defend an Asserted
Liability, fails to notify the Covered Person of its election as above
provided or fails to defend the Asserted Liability diligently and in good
faith, then, to the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Covered Person in defending any
Asserted Liability, shall, from time to time, be advanced by the LLC prior
to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the LLC of an undertaking by or on behalf of the Covered
Person to repay such amount if it shall be determined that the Covered
Person is not entitled to be indemnified as authorized in Section 10.4
hereof. The LLC may, if the Manager Member deems it appropriate, require
any Covered Person for whom expenses are advanced to deliver adequate
security to the LLC for his or her obligation to repay such
indemnification.
SECTION 10.6. MISCELLANEOUS.
(a) The right of indemnification hereby provided shall not be
exclusive of, and shall not affect, any other rights to which a Covered
Person may be entitled at law, under other agreements or otherwise.
Nothing contained in this Article X shall limit any lawful rights to
indemnification existing independently of this Article X.
(b) The indemnification rights provided by this Article X
shall also inure to the benefit of the heirs, executors, administrators,
successors and assigns of a Covered Person and any officers, directors,
members, partners, shareholders, employees and Affiliates of such Covered
Person (and any former officer, director, member, partner, shareholder or
employee of such Covered Person, if the Loss was incurred while such
Person was an officer, director, member, partner, shareholder or employee
of such Covered Person). The Management Committee or the Manager Member
may extend the indemnification called for by Section 10.4 to non-employee
agents of the LLC (or any Controlled Affiliate thereof), the Manager
Member or any of its Affiliates acting on behalf of the LLC (or any
Controlled Affiliate thereof) (provided that no such indemnification shall
cover any loss, damage or claim incurred by reason of any action or
inaction of such indemnified Person which constituted fraud, gross
negligence, willful misconduct or a breach of any agreement with the LLC
or any of its Affiliates to which he, she or it is a party).
ARTICLE XI - MISCELLANEOUS.
SECTION 11.1. NOTICES. All notices, requests, elections, consents or
demands permitted or required to be made under this Agreement ("Notices") shall
be in writing, signed by the Person or Persons giving such notice, request,
election, consent or demand and shall be delivered personally or by confirmed
facsimile, or sent by registered, certified mail or commercial courier to the
Members at their addresses set forth on the signature pages hereof or on
SCHEDULE A hereto, or to the LLC as described in the next sentence (as
applicable), or at such other addresses as may be supplied by written notice
given in conformity with the terms of this Section 11.1. All
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Notices to the LLC shall be made to the Manager Member at the address set forth
on the signature pages hereof or on SCHEDULE A hereto, with a copy (which shall
not constitute notice) to the Management Committee at the principal offices of
the LLC. The date of any such personal or facsimile delivery, or the date of
delivery by an overnight courier, or the date five (5) days after the date of
mailing by registered or certified mail, as applicable, shall be the date of
such notice having been delivered hereunder.
SECTION 11.2. SUCCESSORS AND ASSIGNS. Subject to the restrictions on
Transfer set forth herein, this Agreement shall be binding upon and shall inure
to the benefit of the Members, their respective successors, successors-in-title,
heirs and assigns, and each and every successors-in-interest to any Member,
whether such successor acquires such interest by way of gift, purchase,
foreclosure or by any other method, and each shall hold such interest subject to
all of the terms and provisions of this Agreement.
SECTION 11.3. AMENDMENTS. Amendments may be made to this Agreement with
(i) the prior written consent of the Manager Member granted after the Effective
Time and (ii) the prior written consent of the Management Committee; PROVIDED,
HOWEVER, that, without the vote, consent or approval of any other Member, the
Manager Member shall make such updates and additions to SCHEDULE A hereto as are
required by the provisions hereof; and, PROVIDED FURTHER, that, without the
vote, consent or approval of any other Member, the Manager Member may amend this
Agreement to correct any printing, stenographic or clerical errors; and
PROVIDED, FURTHER, that any amendment to this Agreement (A) imposing any
obligation on a Non-Manager Member to contribute capital to the LLC shall be
effective only with such Non-Manager Member's consent, (B) reducing the required
percentage of LLC Points held by Members (or any group of Members) for any
consent or vote in this Agreement shall be effective only with the consent or
vote of Members (or such group) having the percentage of LLC Points held by
Members theretofore required, and (C) that materially and adversely affects a
particular Non-Manager Member differently from some other Non-Manager Members
(other than a difference solely as a result of the different proportional LLC
Interests of the Members or the different Officer or other employment roles held
by different Non-Manager Members) shall be effective only with the prior written
consent of such Non-Manager Member (unless such change is expressly provided for
by this Agreement).
SECTION 11.4. NO PARTITION. No Member, nor any successor-in-interest to
any Member, shall have the right while this Agreement remains in effect to have
the property of the LLC partitioned, or to file a complaint or institute any
proceeding at law or in equity to have the property of the LLC partitioned, and
each Member, on behalf of itself, its successors, representatives, heirs and
assigns, hereby waives any such right. It is the intent of the Members that
during the term of this Agreement, the rights of the Members and the Employee
Stockholders, and their respective successors-in-interest, as among themselves,
shall be governed by the terms of this Agreement, and that the right of any
Member or successors-in-interest to assign, Transfer, sell or otherwise dispose
of his interest in the LLC shall be subject to the limitations and restrictions
of this Agreement.
SECTION 11.5. NO WAIVER; CUMULATIVE REMEDIES. The failure of any Member to
insist upon strict performance of a covenant hereunder or of any obligation
hereunder, irrespective of the length of time for which such failure continues,
shall not be a waiver of such Member's right
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to demand strict compliance in the future. No consent or waiver, express or
implied, to or of any breach or default in the performance of any obligation
hereunder, shall constitute a consent or waiver to or of any other breach or
default in the performance of the same or any other obligation hereunder. The
rights and remedies provided by this Agreement are cumulative and the use of any
one right or remedy by any party shall not preclude or waive its right to use
any or all other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance or otherwise.
SECTION 11.6. DISPUTE RESOLUTION. All disputes arising in connection with
this Agreement shall be resolved by binding arbitration in accordance with the
applicable rules of the American Arbitration Association. The arbitration shall
be held in Wilmington, Delaware before a single arbitrator selected in
accordance with Section 12 of the American Arbitration Association Commercial
Arbitration Rules who shall have substantial business experience in the
investment advisory industry, and shall otherwise be conducted in accordance
with the American Arbitration Association Commercial Arbitration Rules. The
parties covenant that they will participate in the arbitration in good faith and
that they will share equally its costs except as otherwise provided herein. The
provisions of this Section 11.6 shall be enforceable in any court of competent
jurisdiction, and the parties shall bear their own costs in the event of any
proceeding to enforce this Agreement except as otherwise provided herein. The
arbitrator shall assess costs and expenses (including the reasonable legal fees
and expenses of the prevailing party or parties and any expenses incurred in
connection with compelling arbitration) in favor of the prevailing party or
parties against the other party or parties to such proceeding. Any party
unsuccessfully refusing to comply with an order of the arbitrators shall be
liable for costs and expenses, including attorney's fees, incurred by the other
party in enforcing the award.
SECTION 11.7. PRIOR AGREEMENTS SUPERSEDED. This Agreement, together with
the schedules and exhibits hereto, supersede the prior understandings and
agreements among the parties with respect to the subject matter hereof and
thereof, provided that the Purchase Agreement, the Employment Agreements, the
Non-Solicitation Agreements and the other written agreements expressly
contemplated hereby to be in effect as of the Effective Time shall not be
superseded and shall survive in accordance with their respective terms.
SECTION 11.8. CAPTIONS. Titles or captions of Articles or Sections
contained in this Agreement are inserted as a matter of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof.
SECTION 11.9. COUNTERPARTS. This Agreement may be executed in a number of
counterparts, all of which together shall for all purposes constitute one
Agreement, binding on all the Members notwithstanding that all Members have not
signed the same counterpart.
SECTION 11.10. APPLICABLE LAW; JURISDICTION. This Agreement and the rights
and obligations of the parties hereunder shall be governed by and interpreted,
construed and enforced in accordance with the laws of the State of Delaware,
without applying the choice of law or conflicts of law provisions thereof. Each
of the parties hereby consents to personal jurisdiction, service of process and
venue in the federal or state courts sitting in Wilmington, Delaware for any
claim, suit or proceeding arising under this Agreement to enforce any
arbitration award or obtain equitable relief and hereby irrevocably agrees that
all claims in respect of such action or
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proceeding may be heard and determined in such state court or, to the extent
permitted by law, in such federal court (subject to the provisions of Section
11.6 hereof). To the extent permitted by law, each of the parties hereby
irrevocably consents to the service of process in any such action or proceeding
by the mailing by certified mail of copies of any service or copies of the
summons and complaint and any other process to such party at the address
specified in Section 11.1 hereof. The parties agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions.
SECTION 11.11. INTERPRETATION. All terms herein using the singular shall
include the plural; all terms using the plural shall include the singular; in
each case, the term shall be as appropriate to the context of each sentence.
Throughout this Agreement, nouns, pronouns and verbs shall be construed as
masculine, feminine and neuter, whichever shall be applicable. Any reference to
the Code, the Act or other statutes or laws will include all amendments,
modifications, or replacements of the specific sections and provisions
concerned. The parties intend that this Agreement and the provisions contained
herein shall not be construed or interpreted for or against any party hereto
because that party drafted or caused that party's legal representative to draft
any of its provisions.
SECTION 11.12. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
SECTION 11.13. CREDITORS. None of the provisions of this Agreement shall
be for the benefit of or, to the extent permitted by law, enforceable by any
creditor of (i) any Member, (ii) any Employee Stockholder or (iii) the LLC,
other than a Member who is also a creditor of the LLC.
SECTION 11.14. REFERENCES TO THIS AGREEMENT. Numbered or lettered
articles, sections and subsections herein contained refer to articles, sections
and subsections of this Agreement unless otherwise expressly stated. References
to paragraphs refer to paragraphs in the same Section unless otherwise expressly
stated. References to clauses refer to clauses in the same paragraph unless
otherwise expressly stated.
SECTION 11.15. EXHIBITS, SCHEDULES AND ANNEXES. All Exhibits, Schedules
and Annexes attached to this Agreement are incorporated and shall be treated as
if set forth herein. Only the Manager Member, the CEO and the members of the
Management Committee shall have the right to review SCHEDULE A hereto and ANNEX
B to the Equity Purchase Program, and each of the Non-Manager Members and
Employee Stockholders (in his or her capacity as a Non-Manager Member or
Employee Stockholder, as applicable) expressly waives his or her rights under
the Act (including without limitation under Section 18-305 thereof) to review
SCHEDULE A hereto and ANNEX B to the Equity Purchase Program (and acknowledges
and agrees that such waiver is reasonable in light of the interests of the LLC
and its Members). Each Non-Manager Member shall have the right to receive a copy
of this Agreement and the Exhibits, Schedules and Annexes attached hereto,
provided that SCHEDULE A hereto and ANNEX B to the Equity Purchase Program will
be redacted as to names, LLC Points, Capital Contributions, the LLC Points which
have not yet vested and the vesting schedule with respect to such LLC Points,
and other financial information of the other Members, and such Non-Manager
Member shall have the right to
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review only that information regarding such Non-Manager Member's own LLC Points,
Capital Contribution, LLC Points which have not yet vested and the vesting
schedule with respect to such LLC Points, as well as the total number of
outstanding LLC Points and Program LLC Points available for issuance pursuant to
the Equity Purchase Program and the total amount of capital contributed by the
Members in the aggregate. Notwithstanding the foregoing, the Management
Committee may in its sole discretion furnish to any one or more Non-Manager
Members (and to the exclusion of any one or more other Non-Manager Members) such
additional information relating to SCHEDULE A hereto and ANNEX B to the Equity
Purchase Program as the Management Committee (in its sole discretion) determines
from time to time.
SECTION 11.16. ADDITIONAL DOCUMENTS AND ACTS. Each Non-Manager Member and
Employee Stockholder agrees to execute and deliver such additional documents and
instruments and to perform such additional acts as may be reasonably requested
by the Manager Member to effectuate, carry out and perform all of the terms,
provisions, and conditions of this Agreement and the actions contemplated
hereby.
SECTION 11.17. MANAGERS. The members of the Management Committee and the
Officers of the LLC shall be deemed to be "managers" within the meaning of
Section 303 of the Act and shall have the protections of such Section (provided
that, for the avoidance of doubt, no such Person shall be deemed a "manager"
within the meaning of the Act for any other purpose hereunder).
SECTION 11.18. GUARANTY OF AMG. AMG hereby unconditionally and irrevocably
guarantees the timely performance by the Manager Member of its obligations under
Sections 3.11 and 7.1 hereof; PROVIDED, HOWEVER, that the guaranty set forth in
this Section 11.18 may be terminated with the prior written consent of the
Management Committee, PROVIDED, FURTHER, HOWEVER, that such guaranty may not be
terminated if the Manager Member has exercised any of its rights under Section
3.2(b)(v) hereof.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF the Initial Non-Manager Members and the Manager Member
have executed and delivered this Amended and Restated Limited Liability Company
Agreement as of the day and year first above written.
MANAGER MEMBER:
FA (DE) ACQUISITION COMPANY, LLC
By: AFFILIATED MANAGERS GROUP, INC.,
its Manager Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
AFFILIATED MANAGERS GROUP, INC.,
solely with respect to its obligations under
Section 11.18 of this Agreement:
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
NON-MANAGER MEMBERS:
▇▇▇▇▇▇ ASSOCIATES OF DELAWARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as the related Employee
Stockholder of ▇▇▇▇▇▇ Associates of Delaware, Inc.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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