EXHIBIT 10.2
FOUNDERS' VOTING AND SUPPORT AGREEMENT
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by and among
Alternative Asset Management Acquisition Corporation,
Halcyon Employees LP, solely in its capacity as Halcyon Representative
and
Hanover Overseas Limited, STC Investment Holdings LLC, Solar Capital, LLC,
Jakal Investments, LLC, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
March o, 2008
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................................ 1
Section 1.1 Definitions............................................... 1
Section 1.2 Gender.................................................... 4
ARTICLE II COVENANTS TO SUPPORT THE ACQUISITION.............................. 4
Section 2.1 Voting of Founders' Securities............................ 4
Section 2.2 No Restraint on Officer or Director Action................ 4
Section 2.3 10b5-1 Agreements......................................... 5
ARTICLE III TRANSFER RESTRICTIONS............................................ 5
Section 3.1 Transfer Restrictions..................................... 5
ARTICLE IV ASSIGNMENT; THIRD PARTY BENEFICIARIES............................. 5
Section 4.1 Assignment................................................ 5
Section 4.2 Third Party Beneficiary................................... 5
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE FOUNDERS..................... 6
Section 5.1 Good Standing............................................. 6
Section 5.2 Due Authorization; Binding Agreement...................... 6
Section 5.3 No Conflicts.............................................. 6
Section 5.4 Ownership of the Founders' Securities..................... 7
Section 5.5 Founders' Prior Agreements................................ 7
Section 5.6 Litigation................................................ 7
Section 5.7 Accuracy of Representations; Reliance by
Halcyon Representative.................................. 7
ARTICLE VI FURTHER ASSURANCES................................................ 7
Section 6.1 Shareholders Agreement.................................... 7
Section 6.2 Further Assurances........................................ 7
ARTICLE VII ADJUSTMENTS AND OTHER AGREEMENTS................................. 8
Section 7.1 Surrender and Cancellation of Founders' Securities........ 8
Section 7.2 Termination Fee Securities................................ 8
Section 7.3 Adjustments to Prevent Dilution........................... 9
ARTICLE VIII TERMINATION..................................................... 9
Section 8.1 Termination............................................... 9
Section 8.2 Survival.................................................. 9
ARTICLE IX GENERAL PROVISIONS................................................ 9
Section 9.1 Amendments................................................ 9
Section 9.2 Notices................................................... 9
Section 9.3 Interpretation............................................ 10
Section 9.4 Remedies Cumulative....................................... 10
Section 9.5 Waivers................................................... 10
Section 9.6 Severability.............................................. 10
Section 9.8 Governing Law............................................. 10
Section 9.9 Entire Agreement.......................................... 10
Section 9.10 Fees and Expenses......................................... 11
Section 9.11 Legal Counsel............................................. 11
Section 9.12 Specific Performance; Enforcement......................... 11
Section 9.13 Consent to Jurisdiction................................... 11
Section 9.14 Counterparts: Facsimile.................................. 11
Exhibit A Beneficial and Record Ownership of Founders' Securities
Exhibit B Cancellation Shares and Termination Fee Securities
FOUNDERS' VOTING AND SUPPORT AGREEMENT
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AGREEMENT, dated as of March 12th, 2008 (this "Agreement"), by and among
Alternative Asset Management Acquisition Corporation ("AAMAC"), Halcyon
Employees LP, solely in its capacity as the Halcyon Representative, Hanover
Overseas Limited, STC Investment Holdings LLC, Solar Capital, LLC, Jakal
Investments, LLC, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (each a "Founder" and collectively, the
"Founders") (capitalized terms used but not defined herein have the meanings set
forth in Article I).
WHEREAS, AAMAC, Halcyon Management Group LLC ("Halcyon"), Halcyon Partner
Vehicle, Halcyon Asset Management LLC, Halcyon Offshore Asset Management LLC,
Halcyon Structured Asset Management LP, Halcyon Asset-Backed Advisors LP,
Halcyon Loan Investors LP, and Halcyon Real Estate Investors LP entered into the
Purchase Agreement on the date hereof whereby AAMAC will acquire certain equity
interests in Halcyon (the "Purchase Agreement");
WHEREAS, as of the date hereof each Founder owns, beneficially and of
record, the number of shares of AAMAC Common Stock entitled to vote (the
"Founders' Common Shares") and warrants exercisable for AAMAC Common Stock (the
"Sponsors' Warrants"), in each case in such amounts as set forth opposite each
Founder's name on Exhibit A hereto (the Founders' Common Shares and Sponsors'
Warrants, together, the "Founders' Securities");
WHEREAS, Halcyon Representative and the Founders desire to enter into this
Agreement to provide for, among other things, (i) the obligation of the
Founders, subject to the terms of this Agreement and the Letter Agreements, to
vote their Founders' Voting Shares as set forth herein; (ii) certain
restrictions on the sale or other Transfer of the record ownership or the
Beneficial Ownership, or both, of the Founders' Securities until the termination
of this Agreement; and (iii) the cancellation of a portion of the Founders'
Common Shares at the Closing Date; and
WHEREAS, as a condition to the willingness of Halcyon Parties to enter
into the Purchase Agreement, the Halcyon Parties have required that the Founders
enter into this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"10b5-1 Agreements" means the three agreements dated July 24, 2007 which
Citigroup Global Markets Inc. and AAMAC entered into with each of Hanover
Overseas Limited, STC
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Investment Holdings LLC and Solar Capital, LLC, a form of which is filed as
Exhibit 10.10 to Form S-1 (file number 333-141593) filed with the SEC by AAMAC.
"AAMAC" has the meaning set forth in the introduction to this Agreement.
"AAMAC Common Stock" means the common stock, $0.0001 par value per share,
of AAMAC.
"Acquisition" means the acquisition whereby, pursuant to the Purchase
Agreement and the transactions contemplated thereby, as from time to time
amended, AAMAC will acquire all of the Class A Units of Halcyon.
"Action" means any legal, administrative, governmental or regulatory
proceeding or other action, suit, proceeding, claim, arbitration, mediation,
alternative dispute resolution procedure, inquiry or investigation by or before
any arbitrator, mediator, court or other Governmental Entity.
"Agreement" has the meaning set forth in the introduction to this
Agreement.
"Beneficial Owner" of a security is a Person who directly or indirectly,
through any contract, arrangement, understanding, relationship or otherwise has
or shares: (i) voting power, which includes the power to vote, or to direct the
voting of, such security and/or (ii) investment power, which includes the power
to dispose, or to direct the disposition of, such security. The terms
"Beneficially Own" and "Beneficial Ownership" shall have correlative meanings.
"Business Day" means a day on which banks and stock exchanges are open for
business in New York (excluding Saturdays, Sundays and public holidays).
"Cancellation Shares" has the meaning set forth in Section 7.1 of this
Agreement.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Control" means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"Escrow Agreement" means that Escrow Agreement dated August 1, 2007
between AAMAC, the Founders, and Continental Stock Transfer & Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Founder" has the meaning set forth in the introduction to this Agreement.
"Founders' Common Shares" has the meaning set forth in the recitals to
this Agreement.
"Founders' Securities" has the meaning set forth in the recitals to this
Agreement.
"Founders' Voting Shares" has the meaning set forth in Section 2.1(a)(i)
of this Agreement.
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"Governmental Entity" means any court, administrative agency, regulatory
body, commission or other governmental authority, board, bureau or
instrumentality, domestic or foreign and any subdivision thereof.
"Halcyon" has the meaning set forth in the recitals to this Agreement.
"Halcyon Parties" has the meaning set forth in the Purchase Agreement.
"Halcyon Partner Vehicle" has the meaning set forth in the Purchase
Agreement.
"Halcyon Representative" has the meaning set forth in the Purchase
Agreement.
"Letter Agreement" means each of the letter agreements dated August 1,
2007 between AAMAC and each of the Founders, respectively.
"Permitted Transferee" has the meaning set forth in the Warrant Agreement.
"Person" means any individual, corporation, firm, partnership, joint
venture, limited liability company, estate, trust, business association,
organization, Governmental Entity or other entity.
"Purchase Agreement" has the meaning set forth in the recitals to this
Agreement.
"Registration Rights Agreement" means that Registration Rights Agreement
dated August 1, 2007 between AAMAC and the Founders.
"SEC" means the Securities and Exchange Commission.
"Sponsors' Warrants" has the meaning set forth in the recitals to this
Agreement.
"Termination Fee Securities" has the meaning set forth in Section 7.2(a)
of this Agreement.
"Transfer" means to (a) directly or indirectly offer, sell, contract to
sell, grant any option or warrant for the sale of, assign, transfer,
hypothecate, pledge or otherwise encumber or dispose of any Founders Securities
except for security arrangements currently in place as of the date hereof with
respect to indebtedness of Solar Capital, LLC (b) enter into any swap or other
transaction which is designed to, or might reasonably be expected to, result in
the disposition, whether by actual disposition or effective economic disposition
due to cash settlement or otherwise, of Founders' Securities (including the
filing or participation in the filing of a registration statement with the SEC)
or (c) establish or increase a put equivalent position or liquidate or decrease
a call equivalent position relating to Founders' Securities within the meaning
of Section 16 of the Exchange Act and the rules and regulations promulgated
thereunder.
"Voting Event" has the meaning set forth in Section 2.1(a) of this
Agreement.
"Voting Matters" has the meaning set forth in the Purchase Agreement.
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"Warrant Agreement" means the Warrant Agreement dated as of August 1, 2007
between AAMAC and Continental Stock Transfer & Trust Company.
Section 1.2 Gender. For the purposes of this Agreement, the words "he,"
"his" or "himself" shall be interpreted to include the masculine, feminine and
corporate, other entity or trust form.
ARTICLE II
COVENANTS TO SUPPORT THE ACQUISITION
Until the termination of this Article in accordance with Section 8.1, the
Founders agree as follows:
Section 2.1 Voting of Founders' Securities.
(a) The Founders agree that, from and after the date hereof and until this
Agreement is terminated pursuant to Article VIII, below, at any meeting of the
stockholders of AAMAC, however called, or in connection with any written consent
of the stockholders of AAMAC, in each case relating to any proposed action by
the stockholders of AAMAC with respect to the matters set forth in Section
2.1(a)(iii) below (each, a "Voting Event"):
(i) each Founder shall appear at or participate in, as applicable, each
such Voting Event or otherwise cause the Founders' Common Shares, and any
voting securities of AAMAC acquired by any Founder after the date hereof
and prior to the record date of such Voting Event (including voting
securities purchased pursuant to the 10b5-1 Agreements) (such shares,
together, the "Founders' Voting Shares"), to be counted as present thereat
for purposes of calculating a quorum; and
(ii) each Founder shall vote all of such Founders' Common Shares as
required by Section 1 of the Letter Agreement executed by such Founder;
and
(iii) subject to Section 2.1(a)(ii), each Founder shall vote (or cause to
be voted), in person or by proxy, all Founders' Voting Shares: (a) in
favor of the Voting Matters, including the Acquisition; (b) in favor of
any matter necessary or advisable to effect or further the transactions
contemplated by the Voting Matters; (c) against any action or agreement
submitted for adoption of the stockholders of AAMAC that would result in a
material breach of any covenant, representation or warranty or any other
obligation or agreement of AAMAC contained in the Purchase Agreement or of
the Founders' contained in this Agreement; and (d) against any action or
agreement that would reasonably be expected to adversely affect or delay
the Acquisition or other Voting Matters in any respect.
Section 2.2 No Restraint on Officer or Director Action. The agreements set
forth herein shall in no way restrict any such director or officer in the
exercise of his fiduciary duties as a director or officer of AAMAC. Each Founder
has executed this Agreement solely in his capacity as the Beneficial Owner of
Founders' Securities and no action taken by any such
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director or officer solely in such Person's capacity as a director or officer of
AAMAC shall be deemed to constitute a breach of any provision of this Agreement.
Section 2.3 10b5-1 Agreements. Hanover Overseas Limited, STC Investment
Holdings LLC and Solar Capital, LLC shall maintain the 10b5-1 Agreements in full
force and effect, and shall not alter, amend, grant any release under or
relinquish any rights relating to the 10b5-1 Agreements.
ARTICLE III
TRANSFER RESTRICTIONS
Section 3.1 Transfer Restrictions.
(a) No Founder may directly or indirectly Transfer, or publicly announce
an intention to effect any Transfer, prior to the Closing Date except to a
Permitted Transferee that executes a joinder to this Agreement agreeing to be
bound by the terms and conditions hereof.
(b) From and after the date hereof and until the termination of this
Article pursuant to Article VIII, each Founder agrees not to, with the exception
of the obligations undertaken pursuant to this Agreement, obligations existing
pursuant to the Letter Agreements and any Transfers permitted pursuant to
Section 3.1(a) above, (i) deposit any of his Founders' Securities into a voting
trust, enter into any voting arrangement or understanding, or otherwise
Transfer, whether by proxy, voting agreement or otherwise, the right to vote his
Founders Securities or (ii) take any action that would make any of his
representations or warranties contained herein untrue or incorrect or have the
effect of preventing, disabling or impeding such Founder from performing such
Founder's obligations under this Agreement.
ARTICLE IV
ASSIGNMENT; THIRD PARTY BENEFICIARIES
Section 4.1 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties except by the Founders to any Permitted Transferee
pursuant to the terms of Section 3.1(a) hereof. This Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
Section 4.2 Third Party Beneficiary. Except for the rights granted to
Halcyon Partner Vehicle pursuant to Section 7.2 of this Agreement, this
Agreement (including the documents and instruments referred to herein) is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE FOUNDERS
Each of the Founders hereby represents and warrants to Halcyon
Representative, severally and not jointly, as of the date hereof, as follows:
Section 5.1 Good Standing. In the case of Founders who are not natural
persons, such Founder is duly organized, validly existing and in good standing
under the laws of the jurisdiction where it is organized.
Section 5.2 Due Authorization; Binding Agreement. Each Founder has all
requisite legal capacity or other power and authority to enter into this
Agreement and to perform its obligations hereunder. In the case of Founders who
are not natural persons, the execution and delivery of this Agreement and the
performance by such Founder of its obligations hereunder have been duly
authorized by all necessary action. This Agreement has been duly executed and
delivered by each Founder and, assuming due authorization and valid execution
and delivery by the other parties hereto, constitutes a valid and binding
agreement of the Founder enforceable against the Founder in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and other similar laws
relating to or affecting creditors generally or general equity principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 5.3 No Conflicts.
(a) The execution and delivery by each Founder of this Agreement does not,
and the performance by each Founder of its obligations hereunder will not,
conflict with, or result in any breach or violation of, or constitute a default
(with or without notice or lapse of time, or both) under, or give rise to a
right of or result by its terms in the termination, amendment, cancellation or
acceleration of any obligation or the loss of a material benefit under or the
creation of a lien, charge, "put" or "call" right or other encumbrance on, or
the loss of, any of the Founder's Securities Beneficially Owned by such Founder
under or pursuant to (i), in the case of a Founder which is not a natural
person, any provision of the partnership agreement, operating agreement or other
organizational documents of such Founder or (ii) (A) any material contract to
which such Founder is a party or by which any of such Founder's properties or
assets is bound other than the Escrow Agreement or (B) any material permit,
concession, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to such Founder or such Founder's
properties or assets.
(b) Except for filings with the SEC under the Exchange Act and the
approval of Continental Stock Transfer & Trust Company and Citigroup Global
Markets Inc to amend the Escrow Agreement, no consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity or any other Person is required by or with respect to such Founder in
connection with the execution of this Agreement by such Founder and the
consummation by such Founder of the transactions contemplated hereby.
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Section 5.4 Ownership of the Founders' Securities. Such Founder is the
owner of record of the Founders' Securities set forth opposite such Founder's
name on Exhibit A. No Founder Beneficially Owns any shares of capital stock of
AAMAC or any options or other securities convertible into or exchangeable for
shares of capital stock of AAMAC, other than the Founders' Securities. Each
Founder has the sole right and power to vote and dispose of the Founders'
Securities Beneficially Owned by such Founder, and none of such Founders'
Securities is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting or Transfer of any of the Founders'
Securities, except for (i) this Agreement, (ii) the Letter Agreement executed by
such Founder, (iii) the Escrow Agreement (iv) and the Registration Rights
Agreement, true and complete copies of which have been provided previously to
the Halcyon Representative.
Section 5.5 Founders' Prior Agreements. Other than as a result of this
Agreement, each Founder and to such Founder's knowledge the parties thereto, is
not in breach or default, nor is there any fact, circumstance or event that,
with or without notice or lapse of time, or both, would result in any breach or
default under the terms of any 10b5-1 Agreement, the Warrant Agreement or the
Escrow Agreement. Each of the 10b5-1 Agreements, the Warrant Agreement and the
Escrow Agreement is a valid and binding obligation of the Founder which is a
party thereto and to the knowledge of each Founder, of each other party thereto,
and is in full force and effect.
Section 5.6 Litigation. With respect to each Founder, there is no Action
pending to which such Founder is a party or, to the knowledge of such Founder,
threatened against or by such Founder that restricts in any material respect or
prohibits (or, if successful, would reasonably be expected to restrict or
prohibit) the exercise by any party of its rights under this Agreement or the
performance by any party of its obligations under this Agreement.
Section 5.7 Accuracy of Representations; Reliance by Halcyon
Representative. The representations and warranties contained in this Agreement
are accurate in all respects as of the date of this Agreement. Each Founder
understands and acknowledges that the Halcyon Representative is entering into
the Purchase Agreement in reliance upon the Founders' execution and delivery of
this Agreement.
ARTICLE VI
FURTHER ASSURANCES
Section 6.1 Shareholders Agreement. The Founders agree that on or prior to
the Closing Date, the Founders shall enter into the Shareholders Agreement, as
contemplated by the Purchase Agreement and on the terms described therein.
Section 6.2 Further Assurances. AAMAC and the Founders shall, from time to
time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Halcyon
Representative may reasonably request for the purpose of effectively carrying
out the transactions or arrangements contemplated by this Agreement, including
effecting any amendment, if necessary, to the Escrow Agreement substantially in
the form attached hereto as Exhibit C.
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ARTICLE VII
ADJUSTMENTS AND OTHER AGREEMENTS
Section 7.1 Surrender and Cancellation of Founders' Securities. On the
Closing Date, the Founders shall deliver to AAMAC or its transfer agent, as may
be directed by AAMAC, 2,580,000 Founders' Common Shares in the proportion per
Founder set out in the column named "Cancellation Shares" on Exhibit B hereto
(the "Cancellation Shares"). Regardless of whether such delivery is completed,
on the Closing Date AAMAC or its transfer agent shall cancel such Cancellation
Shares in accordance with Section 2.2(d) of the Purchase Agreement. Without
limiting the provisions of Section 6.2, the Founders hereby agree to execute
such additional documents and to provide AAMAC or its transfer agent with any
further assurances as may be necessary to effect the cancellation or Transfer of
the Cancellation Shares.
Section 7.2 Termination Fee Securities.
(a) As provided for in Section 7.3 of the Purchase Agreement, upon the
occurrence of the events set forth therein, the Founders shall Transfer to
Halcyon Partner Vehicle 50% of the Founders' Common Shares (the "Termination Fee
Securities") set out on Exhibit B hereto; provided that actual title to the
Termination Fee Securities shall Transfer only at such moment when such shares
are releasable from escrow pursuant to the Escrow Agreement (without amendment
or waiver thereof).
(b) Upon the occurrence of the event triggering the right of Halcyon
Partner Vehicle to receive the Termination Fee Securities, the Founders shall
relinquish to Halcyon Partner Vehicle all rights (other than those expressly
limited by the existence of the Escrow Agreement) to the Termination Fee
Securities, and Halcyon Partner Vehicle shall be entitled to all distributions,
dividends, voting rights, economic rights and liquidation rights thereon. Each
Founder hereby grants his proxy to Halcyon Partner Vehicle to exercise all of
such Founder's voting rights in the Termination Fee Securities during such
period that Halcyon Partner Vehicle shall be entitled to the voting rights
thereto and the Termination Fee Securities remain in escrow. In connection
therewith the Halcyon Partner Vehicle hereby agrees to vote all Termination Fee
Securities in accordance with the votes cast by the holders of the IPO shares
(as defined in the Letter Agreements) in the event that AAMAC solicits approval
of its stockholders of an Initial Business Combination (as defined in the Letter
Agreements) and acknowledges that the Termination Fee Securities will not
participate in any liquidation distribution if the company fails to consummate
an Initial Business Combination and waives any rights in connection therewith.
With respect to cash dividends on the Termination Fee Securities during the
period that it remains in escrow, the Founders shall cause the full amount of
such cash dividends to be delivered to Halcyon Partner Vehicle or the partners
in the Halcyon Partner Vehicle within two Business Days of such cash dividend
being paid to the Founders by the escrow agent. Until the termination of the
escrow period and delivery of title to the Termination Fee Securities to Halcyon
Partner Vehicle, the Founders shall not Transfer the Termination Fee Securities.
(c) AAMAC and the Founders shall take all necessary steps to ensure that
the Termination Fee Securities and all distributions and dividends thereon are
each delivered to Halcyon Partner Vehicle at the earliest possible time,
provided that in no event shall such
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delivery occur later than two Business Days after such distributions and
dividends are received by the Founders.
Section 7.3 Adjustments to Prevent Dilution. In the event of a stock
dividend or distribution, or any change in the securities of AAMAC by reason of
any stock dividend, split-up, reclassification, recapitalization, combination or
the exchange of shares, the terms "Founders' Common Shares", "Sponsors'
Warrants", "Founders' Securities," "AAMAC Common Stock" and/or "Termination Fee
Securities" shall be deemed to refer to and include the Founders' Common Shares,
Sponsors' Warrants, Founders' Securities, AAMAC Common Stock and/or Termination
Fee Securities, as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Founders' Common Shares,
Sponsors' Warrants, Founders' Securities, AAMAC Common Stock and/or Termination
Fee Securities may be changed or exchanged.
ARTICLE VIII
TERMINATION
Section 8.1 Termination. This Agreement shall terminate, and no party
shall have any rights or obligations hereunder and this Agreement shall become
null and void and have no further effect upon the first to occur of (a) the
Closing Date and (b) the termination of the Purchase Agreement pursuant to
Article VII of the Purchase Agreement. Nothing in this Section 8.1 shall relieve
any party of liability for breach of this Agreement.
Section 8.2 Survival. If this Agreement is terminated pursuant to Section
8.1, this Agreement shall become void and of no further force and effect, except
for the provisions set forth in Sections 7.2 and 7.3 and Article IX.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Amendments. No amendment, modification, termination, or waiver
of any provision of this Agreement, and no consent to any departure by any
Founder or Halcyon Representative from any provision of this Agreement, shall be
effective unless it shall be in writing and signed and delivered by such Founder
and Halcyon Representative, and then it shall be effective only in the specific
instance and for the specific purpose for which it is given. Additionally, the
Escrow Agreement shall not be amended without Halcyon Representative's consent.
Section 9.2 Notices. All notices, requests, claims, demands and other
communications required or permitted to be given under the Agreement shall be in
writing and shall be deemed effectively given (a) upon personal delivery to the
party to be notified; (b) when received when sent by e-mail or fax by the party
to be notified; provided, however, that notices given by e-mail or fax shall not
be effective unless either (i) a duplicate copy of such e-mail or fax notice is
promptly given by one of the other methods described in this Section 9.2, or
(ii) the receiving party delivers a written confirmation of receipt for such
notice either by e-mail, fax or any other
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method described in this Section 9.2; (c) one Business Day (or three Business
Days in the case of notices to be received outside of the United States) after
deposit with a reputable overnight courier, prepaid for overnight delivery and
addressed as set forth in (d), provided that the sending party receives a
confirmation of delivery from the overnight courier service; or (d) three
Business Days after deposit with the U.S. Post Office, Royal Mail or other
governmental postal service, postage prepaid, registered or certified with
return receipt requested and addressed to the party to be notified at the
address indicated for such party below, or at such other address as such party
may designate by 10 days' advance written notice to the other parties given in
the foregoing manner.
Section 9.3 Interpretation. When a reference is made in this Agreement to
Sections or Articles, such reference shall be to a Section or Article of this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The term "it" when used as a reference to a
Founder which is an individual shall mean his or her, as appropriate.
Section 9.4 Remedies Cumulative. All rights, powers and remedies provided
in this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other right,
power or remedy by such party.
Section 9.5 Waivers. Except as otherwise specifically provided in this
Agreement, no Action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such Action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision contained in this Agreement shall
not operate or be construed as a waiver of any prior or subsequent breach of the
same or any other provision contained in this Agreement.
Section 9.6 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
Section 9.8 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York (without
reference to choice of law principles).
Section 9.9 Entire Agreement. This Agreement embodies the entire agreement
and understanding of the Founders and Halcyon Representative and supersedes all
prior agreements or understandings, with respect to the subject matter of this
Agreement.
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Section 9.10 Fees and Expenses. Subject to the provisions of Section 8.6
of the Purchase Agreement, all costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such expenses.
Section 9.11 Legal Counsel. The Founders acknowledge that they have each
had the opportunity to consult with their own attorneys prior to entering into
this Agreement.
Section 9.12 Specific Performance; Enforcement. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore, each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
Section 9.13 Consent to Jurisdiction.
(a) Each of the parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of (i) the courts of the State of New York sitting in
New York City and (ii) the United States District Court for the Southern
District of New York for the purposes of any Action arising out of or relating
to this Agreement, any provision hereof or thereof or the breach, performance,
validity or invalidity hereof or thereof. Each party agrees that service of any
process, summons, notice or document to the party at the address for notices
specified in Section 9.2 hereof, mailed by first class mail shall be effective
service of process upon such party for any Action brought against it in such
court with respect to any matters to which it has submitted to jurisdiction as
set forth above. Each of the parties irrevocably and unconditionally waives any
objection to the laying of venue of any Action arising out of or relating to
this Agreement, any provision hereof or thereof or the breach, performance,
validity or invalidity hereof or thereof in the courts referred to in this
section, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such Action brought in any such
court has been brought in an inconvenient forum. Notwithstanding the foregoing,
the parties agree that a final judgment in any Action or proceeding so brought
shall be conclusive and may be enforced by suit on the judgment in any
jurisdiction or in any other manner provided in law or in equity.
(b) EACH OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE
PARTIES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 9.14 Counterparts: Facsimile. This Agreement maybe executed in
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart. This Agreement may be executed by facsimile or
portable document format (pdf) signatures of the parties hereto.
[SIGNATURE PAGES TO FOLLOW]
11
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties as of the date written above.
HALCYON EMPLOYEES LP
solely in its capacity as Halcyon Representative
------------------------------------------------
Name:
Address:
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
(Signature Page to Founders' Agreement)
HANOVER OVERSEAS LIMITED
By:
------------------------------
Name:
Title:
Address:
STC INVESTMENT HOLDINGS LLC
By:
------------------------------
Name:
Title:
Address:
SOLAR CAPITAL, LLC
By:
------------------------------
Name:
Title:
Address:
JAKAL INVESTMENTS, LLC
By:
------------------------------
Name:
Title:
Address:
ALTERNATIVE ASSET MANAGEMENT
ACQUISITION CORPORATION
By:
------------------------------
Name:
Title:
Address:
By:
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Address:
By:
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Address:
By:
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address:
By:
------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Address:
By:
------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address:
EXHIBIT A
BENEFICIAL AND RECORD OWNERSHIP OF FOUNDERS' SECURITIES
-------------------------------------------------------
Equity Interests of Founders
----------------------------------- ------------------------ -------------------
AAMAC Common Stock AAMAC Warrants
----------------------------------- ------------------------ -------------------
Hanover Overseas Limited 2,910,938 1,067,250
----------------------------------- ------------------------ -------------------
STC Investment Holdings LLC 3,881,250 1,423,000
----------------------------------- ------------------------ -------------------
Solar Capital, LLC 1,293,750 712,000
----------------------------------- ------------------------ -------------------
Jakal Investments, LLC 983,250 712,000
----------------------------------- ------------------------ -------------------
▇▇▇▇ ▇. ▇▇▇▇▇ 970,312 355,750
----------------------------------- ------------------------ -------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ 51,750 --
----------------------------------- ------------------------ -------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 155,250 355,000
----------------------------------- ------------------------ -------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 51,750 --
----------------------------------- ------------------------ -------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 51,750 --
----------------------------------- ------------------------ -------------------
TOTAL 10,350,000 4,625,000
----------------------------------- ------------------------ -------------------
EXHIBIT B
CANCELLATION SHARES AND TERMINATION FEE SECURITIES
--------------------------------------------------
----------------------------------- ------------------------ -------------------
Termination Fee
Cancellation Shares Securities
(per Section 7.1) (per Section 7.2)
----------------------------------- ------------------------ -------------------
Hanover Overseas Limited 725,625 1,455,469
----------------------------------- ------------------------ -------------------
STC Investment Holdings LLC 967,500 1,940,625
----------------------------------- ------------------------ -------------------
Solar Capital, LLC 322,500 646,875
----------------------------------- ------------------------ -------------------
Jakal Investments, LLC 245,100 491,625
----------------------------------- ------------------------ -------------------
▇▇▇▇ ▇. ▇▇▇▇▇ 241,875 485,156
----------------------------------- ------------------------ -------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ 12,900 25,875
----------------------------------- ------------------------ -------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 38,700 77,625
----------------------------------- ------------------------ -------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 12,900 25,875
----------------------------------- ------------------------ -------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 12,900 25,875
----------------------------------- ------------------------ -------------------
TOTAL 2,580,000 5,175,000
----------------------------------- ------------------------ -------------------
EXHIBIT C
FORM OF ESCROW AGREEMENT AMENDMENT
----------------------------------
Alternative Asset Management Acquisition Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
March __, 2008
Continental Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to that certain Escrow Agreement, dated as of August 1,
2007 (the "Escrow Agreement"), by and among Alternative Asset Management
Acquisition Corp. (the "Company"), the initial stockholders of the Company named
therein and Continental Transfer & Trust Company. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the Escrow
Agreement.
The Company is considering entering into a definitive agreement with
respect to a potential Initial Business Combination. In connection with such
Initial Business Combination, the Initial Stockholders intend to enter into a
Founders' Voting and Support Agreement (the "Founders Agreement") which will
provide that the Initial Stockholders forfeit a certain number of Escrow Shares
upon consummation of the Initial Business Combination. Notwithstanding anything
to the contrary set forth in the Escrow Agreement, upon delivery by the Company
to the Escrow Agent of a copy of the Founders Agreement which has been executed
and delivered by the Initial Stockholders and notice from the Company that the
Initial Business Combination has been consummated, the Escrow Agent shall
deliver to the Company for cancellation, at no cost, the number of Escrow Shares
set forth in Exhibit B to the Founders Agreement under the column entitled
"Cancellation Shares."
Except as set forth herein, the Escrow Agreement is not amended or
modified in any respect and remains in full force and effect. If you are in
agreement with the foregoing, please execute this letter agreement where
indicated below and return it to the address set forth above.
[Signature Pages Follow]