Exhibit 9.2
[Exhibit A to Amendment No. 1 to Stockholders Agreement]
MERGER CONSIDERATION ADJUSTMENT AGREEMENT dated as of November 8, 1999 (this
"Agreement"), among RNYC Holdings Limited, a Gibraltar corporation ("Principal
Stockholder"), HSBC Holdings plc, an English public limited company ("HSBC") and
HSBC North America Inc., a Delaware corporation ("US Holdco").
WHEREAS HSBC, Republic New York Corporation, a Maryland
corporation ("the Company") and Safra Republic Holdings S.A., a Luxembourg
societe anonyme ("SRH"), have entered into a Transaction Agreement and Plan of
Merger dated as of May 10, 1999 (as amended by the Joinder Agreement dated as of
May 20, 1999 and by Amendment No. 1 to the Transaction Agreement and Plan of
Merger dated as of the date hereof (the "Merger Amendment Agreement")) (the
"Merger Agreement"), providing for, among other things, the merger of a wholly
owned subsidiary of US Holdco with and into the Company (the "Merger"),
following which the Company will be a wholly owned subsidiary of US Holdco;
WHEREAS Saban S.A., the Principal Stockholder, Congregation
Beit Xxxxxx, Xx. Xxxxxx X. Xxxxx ("Xx. Xxxxx"), HSBC and US Holdco entered into
a stockholder agreement dated as of May 10, 1999 (as amended by Amendment No. 1
to Stockholders Agreement dated as of the date hereof) (the "Stockholders
Agreement") relating to the Merger;
WHEREAS the Principal Stockholder and its affiliates own
approximately 29.5% of the outstanding common stock of the Company and will be
entitled to the consideration specified in the Merger Agreement upon
consummation of the Merger Agreement;
WHEREAS as an inducement and a condition to its entering into
the Merger Amendment Agreement and incurring the obligations set forth in the
Merger Agreement, HSBC has required the Principal Stockholder to enter into this
Agreement; and
WHEREAS, although none of the parties hereto believes, or has
any reason to believe, that any Principal Stockholder Entity has any obligation
or liability to any Person in connection with the Princeton Note Matter (as
defined in the Merger Agreement), the parties hereto are executing and
delivering this Agreement in order to assist with the consummation of the Merger
and the other transactions contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the obligations and
agreements contained herein, the sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used but not
defined in this Agreement shall have the respective meanings assigned to such
terms in the Merger Agreement. In addition, for purposes of this
Agreement:
"Account" means the account for the benefit of the Principal
Stockholder held at HSBC, its direct or indirect Subsidiary, or a branch of
either located or acting outside of the United States, designated by the
Principal Stockholder and reasonably acceptable to HSBC.
"Ancillary Expenses" means all legal fees, costs and expenses,
and investigative costs, incurred by any Relevant Party principally, directly or
indirectly, with respect to any claim involving or related to the Princeton Note
Matter, calculated on a pre-tax basis.
"Claim" means an amount of Losses for which a reduction in the
Merger Consideration (calculated in accordance with this Agreement) is sought to
be effected pursuant to a Request for Adjustment.
"Losses" means all losses, liabilities, claims, fines,
penalties, damages (including, without limitation, punitive and exemplary
damages and treble damages) and expenses (but (i) excluding legal fees, costs or
expenses, or investigative costs, incurred by any Relevant Party and (ii)
including indemnity payments (including indemnity payments with respect to legal
fees, expenses and investigative costs incurred by any Person required to be
indemnified under currently existing obligations by any Relevant Party) other
than indemnity payments under Section 16 of the Stockholder Agreement), suffered
or incurred by settlement, judgment or otherwise by any Relevant Party on a
pre-tax basis to the extent arising principally, directly or indirectly, from
any claim, action or proceeding involving or relating to the Princeton Note
Matter whether directly or by virtue of any obligation to so indemnify a Person;
in each case net of any net amounts received under currently existing insurance
policies or as a result of counterclaims, rights of set-off or similar
recoveries ("Offset") principally, directly or indirectly related to the
Princeton Note Matter.
"Principal Stockholder Entities" means any of (a)
notwithstanding any other provisions of this definition
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or this Agreement, Xx.
Xxxxx in any capacity (b) the Principal Stockholder or its affiliates or any of
their respective officers, directors, employees, stockholders and controlling
persons (including, without limitation to the generality, Saban S.A.) agents and
representatives, but excluding for the purposes of this clause (b) any
individual who is an officer, director, employee, agent or representative of a
Relevant Party when acting in his or her capacity as such. For the purpose of
this definition, "affiliates" of the Principal Stockholder shall not include the
Company or SRH or any of their respective direct or indirect Subsidiaries.
"Relevant Party" means the Company or any of its Subsidiaries
(including, without limitation, Republic New York Securities Corporation).
"Request for Adjustment" means a notice substantially in the
form of Exhibit A hereto delivered by US Holdco to the Principal Stockholder
pursuant to Section 5 hereof, which shall be executed by the President, the
Chief Executive Officer, or the Chief Financial Officer of US Holdco.
"taxes" shall mean all taxes, however denominated, including
any interest or penalties that may become payable in respect thereof, imposed by
any United States federal, state, local or non-United States ("foreign")
government or any agency or political subdivision of any such government, which
taxes shall include, without limiting the generality of the foregoing, all
income taxes (including, but not limited to, United Kingdom or United States
federal income taxes and state and local income taxes), excise taxes,
environmental taxes, franchise taxes, gross receipts taxes, value added taxes,
stamp taxes, transfer taxes, withholding taxes, and other obligations of the
same or of a similar nature and tax and taxation and similar terms shall be
construed accordingly.
"Taxpayer" means HSBC and its affiliate entities including
without limitation any Relevant Party.
SECTION 2. Termination. This Agreement shall terminate
automatically, without any action by the parties hereto, if the Merger Agreement
terminates prior to the Effective Time or if the Merger Agreement is amended in
a manner adverse to the Principal Stockholder without the Principal
Stockholder's consent.
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SECTION 3. Account Arrangements. (a) The Principal Stockholder
hereby instructs US Holdco, on the Principal Stockholder's behalf, to deposit in
the Account $180,000,0000 of the Merger Consideration to which it is entitled
under the Merger Agreement on the date on which such $180,000,000 would
otherwise have been paid to the Principal Stockholder. The Principal Stockholder
hereby agrees that it shall on delivery of the Certificates representing Company
Common Stock to the Exchange Agent direct the Exchange Agent to so deposit such
$180,000,000 of the Merger Consideration into the Account.
(b) The parties agree to treat the Principal Stockholder as
the beneficial owner of the Account, including any income derived from the
Account, for income tax purposes. Any withdrawal by US Holdco from the Account
or any payment made by the Principal Stockholder to US Holdco under the terms of
this Agreement shall be treated as a decrease in the Merger Consideration paid
by US Holdco to the Principal Stockholder and as not taxable to US Holdco or
HSBC. Any payment into the Account (other than the payment contemplated by
Section 3(a)) or to the Principal Stockholder by US Holdco under the terms of
this Agreement shall be treated as an increase in the Merger Consideration paid
by US Holdco to the Principal Stockholder.
(c) The Account shall bear interest for each six month period
at the London InterBank Offered Rate as quoted by HSBC at the beginning of each
six month period for accounts of a similar size. Such interest shall be credited
to the Account at the end of each six month period and shall be paid promptly
thereafter to the Principal Stockholder or its designee.
SECTION 4. Adjustment of Merger Consideration. (a) Subject to
Sections 4(b) to 4(i) (inclusive) and Section 5, from time to time following the
Effective Time, US Holdco may withdraw from the Account, amounts equal to 60% of
the first $300,000,000 of Losses incurred after the time that Losses and
Ancillary Expenses exceed $700,000,000 (calculated on a pre-tax basis), but in
no event more than $180,000,000 (the "Total Amount").
(b) The Principal Stockholder will not have any liability with
respect to the Princeton Note Matter under this Agreement or otherwise in excess
of the Total Amount and any obligation of the Principal Stockholder under this
Agreement shall be satisfied solely out of the Account.
(c) Except as otherwise specifically provided in this
Agreement and Section 15 of the Stockholders Agreement,
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HSBC and US Holdco each
acknowledges that it and its Subsidiaries, and to the full extent that HSBC or
US Holdco has the legal authority to do so, their respective officers,
directors, employees, stockholders (in their capacity as such) and
representatives will have no remedy against any Principal Stockholder Entity
with respect to any and all Losses arising directly or indirectly out of or
relating to the Princeton Note Matter. In furtherance of the foregoing, HSBC and
US Holdco each agrees, on behalf of itself and its Subsidiaries, and to the full
extent that either has the legal authority to do so, their respective officers,
directors, employees, stockholders (in their capacity as such) and
representatives, to waive any and all rights, claims and causes of action they
may have against any Principal Stockholder Entity, arising out of or relating
directly or indirectly to the Princeton Note Matter. Except in the case of any
Principal Stockholder Entity nothing herein is intended to waive any rights the
Company, US Holdco or HSBC (or any of their respective Subsidiaries) may have
against any other Person or any such Person in any other capacity.
(d) The final amount of the adjustment to the Merger
Consideration resulting from any Loss and US Holdco's right to withdraw from the
Principal Stockholder's Account provided under this Section 4 shall be (i)
increased to take account of any net tax cost incurred by the Taxpayer arising
from the receipt of payments hereunder (grossed up for such increase) and (ii)
reduced to take account of any net tax benefit actually realized by the Taxpayer
arising from the incurrence or payment of any such Loss. In computing the amount
of any such tax cost or tax benefit, the Relevant Parties shall be deemed to
recognize all other items of income, gain, loss deduction or credit before
recognizing any item arising from the receipt of any payment hereunder or the
incurrence or payment of any Loss; provided, however, that in calculating the
tax benefit in respect of any Loss, the deductibility or other tax effect of all
Losses in the aggregate will be allocated among such Losses on a pro-rata basis.
The amount of a tax benefit shall be determined on the date that the Taxpayer
receives an actual reduction in its tax liability (including a reduction in
estimated tax payments) and shall be subject to adjustment pursuant to the
remainder of this Section 4 if such tax benefit subsequently increases or
decreases.
(e) The Taxpayer shall claim a tax deduction (or, without
limitation, any other available tax benefits) for any Losses, without regard to
the adjustment to Merger Consideration made pursuant to this Agreement, except
to the extent that the Taxpayer has received an opinion of its
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independent tax
advisor that there would not be substantial authority for the claiming of such
deduction or other benefit. If the Taxpayer incurs a Loss prior to actually
realizing any tax benefit from such Loss, then the Claim shall initially be for
the full amount arising from the incurrence or payment of such Loss without
regard to any potential tax benefit from such Loss. However, if and to the
extent the Taxpayer actually realizes a tax benefit arising from the incurrence
or payment of such Loss under the principles of Section 2(d) then US Holdco
shall reimburse the Account at such time, or, if subsequent to the closure of
the Account, pay such amount to the Principal Stockholder or its designee. In
the event that a final determination is made whereby a tax benefit described in
the preceding sentence subsequently is disallowed, US Holdco may withdraw the
appropriate amount from the Account.
(f) If (i) the Taxpayer claims a tax benefit in respect of any
Loss, (ii) such claimed tax benefit reduces the amount to be repaid to US Holdco
from the Account under the terms of this Agreement, and (iii) a taxing authority
subsequently claims that such tax benefit was not available to the Taxpayer, the
Taxpayer will contest such contention; provided, however, that the Taxpayer
shall not be required to pursue a judicial proceeding to challenge such
contention if it has received an opinion of its independent tax advisor that it
is not at least more likely than not that the Taxpayer will succeed in the
contest.
(g) Subject to Section 4(h), US Holdco's right to deliver a
Request for Adjustment and to cause an adjustment to the Merger Consideration
pursuant to this Agreement shall end on the Termination Date. The Termination
Date shall be the third anniversary of the Closing Date unless at such date (i)
US Holdco has been notified of claims, demands or proceedings against any
Relevant Party or any Person required to be indemnified by any Relevant Party
under currently existing obligations that it reasonably believes could result in
an adjustment to the Merger Consideration pursuant to this Agreement or US
Holdco reasonably believes such claims, demands or proceedings will be asserted
or instituted or (ii) the amount of the adjustment to the Merger Consideration
resulting from any Loss has been reduced pursuant to Section 4(d) or (e) to
reflect a deduction or other tax benefit which is still subject to disallowance
and which US Holdco reasonably believes is reasonably likely to be challenged by
a relevant tax authority, in either of which events US Holdco may extend the
Termination Date for up to one year by delivering a written notice to the
Principal Stockholder signed by the President, Chief Executive Officer or Chief
Financial
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Officer of US Holdco to such effect and stating the extended
Termination Date. The extension right of the preceding sentence also may be
exercised with respect to any extended Termination Date, except that the
Termination Date shall not in any event be extended beyond the sixth anniversary
of the Closing Date.
(h) On the Termination Date, as it may have been extended
pursuant to Section 4(g), US Holdco shall deliver to the Principal Stockholder a
Certificate signed by the President, Chief Executive Officer or Chief Financial
Officer of US Holdco specifying (i) the unresolved actually instituted and
pending claims, demands or proceedings that could result in an adjustment to the
Merger Consideration pursuant to this Agreement, (ii) any Claim as to which
there is a dispute between the parties as to which US Holdco has delivered a
Request for Adjustment prior to the Termination Date, (iii) deductions or other
the tax benefits which have reduced the adjustment to the Merger Consideration
resulting from the amount of any Loss pursuant to Section 4(d) or (e) which are
still subject to disallowance and which US Holdco reasonably believes are
reasonably likely to be challenged by a relevant tax authority (the items
described in (i), (ii) and (iii) being called "Continuing Claims"), and (iv) the
amount remaining in the Account that US Holdco reasonably and in good faith
believes should be available to protect its rights to adjust the Merger
Consideration pursuant to this Agreement (the "Required Amount"). US Holdco's
right to deliver a Request for Adjustment and to adjust the Merger Consideration
pursuant to this Agreement after the Termination Date shall continue only with
respect to such Continuing Claims. Any amount held in the Account in excess of
the Required Amount will be paid to the Principal Stockholder or its designee
promptly after the Termination Date. To the extent any Continuing Claim is
resolved in a manner resulting in a Loss (or in the increase of a Loss), US
Holdco may withdraw from the Account an amount with respect to such Loss in
accordance with this Agreement as it applied to Losses prior to the Termination
Date. Upon final resolution of all Continuing Claims or, if there are not any
Continuing Claims at the Termination Date, after the Termination Date, all
remaining amounts in the Account will be paid promptly to the Principal
Stockholder or its designee and the Account will be closed.
(i) After the third anniversary of the Closing Date, US Holdco
shall periodically (and not less frequently than on each anniversary of the
Closing Date) determine whether the amount in the Account exceeds the amount US
Holdco reasonably and in good faith believes should be available to protect US
Holdco's right to adjust the Merger
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Consideration in accordance with this
Agreement, and, in the event it is so determined, the amount of any excess shall
be released to the Principal Stockholder or its designee.
SECTION 5. Adjustment Procedures. (a) In order for US Holdco
to effect a withdrawal from the Account under Section 4, US Holdco must deliver
a Request for Adjustment to the Principal Stockholder in the manner specified by
Section 6 and such Request for Adjustment must contain all applicable
information and representations and warranties required thereby.
(b) Unless the Principal Stockholder raises an objection to
the Claim described in such Request for Adjustment pursuant to Section 5(c), US
Holdco may withdraw no earlier than the day that is 30 days after the Request
for Adjustment was delivered in the manner specified by Section 6 an amount
equal to the amount of the Claim in such Request for Adjustment. US Holdco shall
not withdraw any amount from the Account if the Principal Stockholder has raised
any objections to the Claim made in the Request for Adjustment pursuant to
Section 5(c) until such time as such objections have been resolved pursuant to
Section 7(g) or otherwise.
(c) The Principal Stockholder may object to any Claim made in
such Request for Adjustment by notifying US Holdco of such objection no later
than the day that is 30 days after the Request for Adjustment has been delivered
in the manner specified by Section 6, except that the Principal Stockholder may
only so object for the following reasons:
(i) the Request for Adjustment is not in all material respects
in compliance with the requirements of Section 5(a) above;
or
(ii) the representations contained in the Request for
Adjustment are not accurate in all material respects.
(d) Any dispute that arises as a result of an objection raised
by the Principal Stockholder pursuant to Section 5(c) shall not constitute or
give rise to a Loss of any Relevant Party in respect of such dispute.
(e) After the Effective Time through the Termination Date, US
Holdco will provide quarterly written reports in reasonable detail as to all
matters about which it is aware (after making reasonable inquiry of Relevant
Parties) that is or may become subject to the provisions of
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this Agreement;
provided such reports shall not include any information the inclusion of which
in the good faith opinion of US Holdco's counsel threatens to constitute a
waiver of the attorney-client privilege, work product doctrine or other
protection from compulsory disclosure. On the request of the Principal
Stockholder the parties shall enter into a joint defense agreement or similar
arrangement to the extent that, in the good faith opinion of US Holdco's
counsel, such agreement or arrangement would be enforceable against adverse
Persons.
SECTION 6. Notices. All notices or other communications
required or permitted to be given hereunder shall be in writing and shall be
delivered by hand or sent by facsimile, or sent, postage prepaid, by registered,
certified or express mail, or overnight courier service and shall be deemed
given when received, as follows:
(a) if to the Principal Stockholder, to:
RNYC Holdings Limited
Neptune House
Marina Bay
Gibraltar
Attention: The Company Secretary
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
(b) if to HSBC, to:
HSBC Holdings plc
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Attention: Group Company Secretary
Fax: 000-00-000-000-0000
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with a copy to:
Xxxxxx Xxxxxxxx, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(c) if to US Holdco, to:
HSBC North America Inc.
0 XXXX Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
SECTION 7. Miscellaneous. (a) This Agreement and the rights
and obligations hereunder shall not be assignable or transferable by any party
without the prior written consent of the other parties hereto; provided,
however, that the rights and obligations of US Holdco may be assigned by
operation of law in respect of any merger or consolidation of US Holdco with the
Company, or any of HSBC's wholly-owned Subsidiaries. Any attempt to assign or
transfer in violation of this Section 7(a) shall be void.
(b) This Agreement is for the sole benefit of the parties
hereto and their permitted assigns and nothing herein expressed or implied shall
give or be construed to give to any person, other than the parties hereto and
such assigns, any legal or equitable rights hereunder.
(c) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
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(d) This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings relating to such subject
matter.
(e) If, and to the extent that any Relevant Party receives an
Offset not previously taken into account in determining the amount of Losses,
then US Holdco shall reimburse the Account, or, if subsequent to the closure of
the Account, pay the Principal Stockholder or its designee, an amount accounting
for such Offset (i.e., reflecting a recalculation the Losses incurred and
relevant to an adjustment hereunder that gives effect to such Offset). In
determining the effect of any Offset on the adjustments to the Merger
Consideration made under this Agreement, any Offset that can be specifically
linked to a particular Loss shall be applied against such Loss, any Offset that
cannot be specifically linked to a particular Loss but can be specifically
linked to a particular party shall be applied pro rata to all Losses
attributable to such party and all other Offsets shall be applied pro rata to
all Losses incurred.
(f) This Agreement shall be governed by and construed in
accordance with English law.
(g) (I) Any dispute, controversy or claim arising out of,
relating to or in connection with this Agreement, including, without limitation,
any dispute regarding its validity, or the performance or breach thereof, shall
be finally settled by arbitration administered by the American Arbitration
Association ("AAA"). The arbitration shall be conducted in accordance with the
International Arbitration Rules of the AAA in effect at the time of the
arbitration ("AAA Rules"), except as they may be modified herein or by agreement
of the parties. The place of arbitration shall be New York, New York.
(II) The arbitration shall be commenced by the service by one
party of a notice of arbitration in accordance with the AAA Rules. The
arbitration shall be conducted by a tribunal composed of three arbitrators. Each
of the Principal Stockholder and HSBC shall appoint one arbitrator and deliver
written notification of such appointment to the other parties and to the AAA
within thirty days of the date on which the arbitration commenced. In the event
either the Principal Stockholder or HSBC fails to deliver notification of its
appointment of an arbitrator to the other parties within such thirty-day period,
upon request of either the Principal Stockholder or HSBC the AAA
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shall appoint
such arbitrator within thirty days of the AAA's receipt of such request. The two
arbitrators appointed in accordance with the above provisions shall appoint the
third arbitrator and notify the parties in writing of such appointment within
thirty days of their appointment (or within thirty days of the appointment of
the second of them if the two appointments have not been simultaneous). If the
first two appointed arbitrators fail to notify the parties of the appointment of
the third arbitrator within such thirty-day period, then upon request of either
the Principal Stockholder or HSBC the AAA shall appoint the third arbitrator
within thirty days of the AAA's receipt of such request. The third arbitrator
shall serve as chairman of the tribunal.
(III) The arbitration proceedings shall be concluded within
120 days from the date the chairman of the tribunal has been appointed, and the
tribunal shall use its best efforts to issue the final award within fifteen days
after closure of the proceedings. The tribunal may extend these time limits only
if it determines that the interest of justice so requires. Each party agrees
that in the event the tribunal determines that such party breached Section 4 or
Section 5 in any material respect such party shall be obligated to reimburse the
other party for the fees and expenses (including reasonable attorney's fees and
expenses) incurred by such other party in connection with such breach and the
litigation relating to such breach.
(IV) The award rendered by the tribunal shall be final and
binding on the parties. Judgment on the award may be entered in any court of
competent jurisdiction.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
RNYC Holdings Limited,
by /s/Xxxxxx X. Xxxxxxxxx III
------------------------------
Name: Xxxxxx X. Xxxxxxxxx III
Title: Attoeney-In-Fact
HSBC NORTH AMERICA, INC.,
by /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
HSBC HOLDINGS PLC,
by /s/ Xxxxx Xxxx
------------------
Name: Xxxxx Xxxx
Title: Authorised Signatory
EXHIBIT A
REQUEST FOR ADJUSMENT
To: RNYC Holdings Limited
[Address]
Attention: [ ]
On behalf of HSBC North America Inc. ("US Holdco"), we hereby
notify you of a claim (the "Claim") for Losses to be withdrawn from the Account
under Section 4 of the Merger Consideration Adjustment Agreement dated as of
November 7, 1999 among RNYC Holdings Limited, HSBC Holdings plc and US Holdco
(the "Merger Consideration Adjustment Agreement"). Terms used but not defined in
this Request shall have the meanings assigned to such terms in the Merger
Consideration Adjustment Agreement.
In accordance with Section 5 of the Merger Consideration
Adjustment Agreement, the Company hereby represents and warrants as follows:
1. Amount. The amount of the Claim is $[ ].
2. Basis for Claim. Attached as Annex A hereto is a full,
complete and accurate description in all material respects, together with any
material applicable underlying documents (including, without limitation, court
orders, settlement agreements, fines and bills) of the factual circumstances
giving rise to the Losses to which the Claim relates.
3. Adjustment Limit. The Claim is being made subject to the
limits contained in Section 4 of the Merger Consideration Adjustment Agreement.
The payment of this Claim by RNYC Holdings Limited will not exceed any limits
contained in Section 4 of the Merger Consideration Adjustment Agreement.
HSBC NORTH AMERICA INC.,
by -----------------------
Name: [ ]
Title:
