TAX RECEIVABLE AGREEMENT by and among ARTIO GLOBAL INVESTORS INC. ARTIO GLOBAL HOLDINGS LLC RICHARD C. PELL and RUDOLPH-RIAD YOUNES dated as of [ ], 2009
by and
among
ARTIO
GLOBAL HOLDINGS LLC
XXXXXXX
X. XXXX
and
XXXXXXX-XXXX
XXXXXX
dated as of
[ ], 2009
PAGE
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ARTICLE
1
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DEFINITIONS
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Section
1.01. Definitions
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2
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Section
1.02. Other
Definitional and Interpretative Provisions
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9
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ARTICLE
2
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DETERMINATION OF CUMULATIVE REALIZED TAX BENEFIT
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Section
2.01. Basis
Adjustment
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9
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Section
2.02. Exchange Basis
Schedule
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10
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Section
2.03. Tax
Benefit Schedule
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10
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Section
2.04. Procedures,
Amendments
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10
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ARTICLE
3
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TAX BENEFIT PAYMENTS
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Section
3.01. Payments
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11
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Section
3.02. No
Duplicative Payments
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12
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Section
3.03. Pro
Rata Payments
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12
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Section
3.04. Opt
Out
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12
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ARTICLE
4
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TERMINATION
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Section
4.01. Early
Termination and Breach of Agreement
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13
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Section
4.02. Early
Termination Notice
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14
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Section
4.03. Payment
upon Early Termination
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15
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ARTICLE
5
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SUBORDINATION AND LATE PAYMENTS
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Section
5.01. Subordination
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15
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Section
5.02. Late
Payments by the Corporation
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15
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ARTICLE
6
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NO DISPUTES; CONSISTENCY; COOPERATION
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Section 6.01. Principal Participation in
the Corporation and AGH’s Tax Matters
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15
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Section
6.02. Consistency
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16
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Section
6.03. Cooperation
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16
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i
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MISCELLANEOUS
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Section
7.01. Notices
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16
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Section
7.02. Counterparts
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18
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Section
7.03. Entire
Agreement; No Third-Party Beneficiaries
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18
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Section
7.04. Governing
Law
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18
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Section
7.05. Severability
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18
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Section
7.06. Successors;
Assignment; Amendments; and Waivers
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19
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Section
7.07. Titles
and Subtitles
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20
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Section
7.08. Resolution of
Disputes
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20
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Section
7.09. Reconciliation
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22
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Section
7.10. Withholding
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23
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Section 7.11. Admission of the
Corporation into a Consolidated Group; Transfers
of Corporate Assets
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23
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Section
7.12. Confidentiality
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24
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Section
7.13. LLC
Agreement
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24
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Section
7.14. Partnerships
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24
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ii
This TAX
RECEIVABLE AGREEMENT (as amended from time to time, this “Agreement”), dated as of [ ],
2009, is hereby entered into by and among Artio Global Investors Inc., a
Delaware corporation (the “Corporation”), Artio Global Holdings LLC, a
Delaware limited liability company (“AGH”), Xxxxxxx X. Xxxx and
Xxxxxxx-Xxxx Xxxxxx.
RECITALS
WHEREAS,
the Principals (as defined below) hold Class A Units (“Units”) in AGH, which is
treated as a partnership for U.S. federal income tax purposes;
WHEREAS,
the Corporation is the managing member of, and holds Class A Units in,
AGH;
WHEREAS,
as a result of any Principal exchanging its Units (an “Exchange”, and each such date
an Exchange occurs, an “Exchange Date”) pursuant to
the Exchange Agreement (as defined below) with the Corporation for shares of
Class A common stock of the Corporation, par value $0.001 per share (“Class A Shares”), with the
concurrent cancellation of an equal number of shares of Class B common stock of
the Corporation, par value $0.001 per share (“Class B Shares”), the
Corporation is expected to incur lower Tax (as defined below) liabilities on an
ongoing basis with respect to the operations of AGH;
WHEREAS,
AGH and each of its direct and indirect subsidiaries that are treated as a
partnership for U.S. federal income tax purposes have or will have in effect an
election under Section 754 of the Internal Revenue Code of 1986, as amended (the
“Code”), for each
Taxable Year (as defined below) in which an Exchange occurs, which election is
expected to result in an adjustment to the Tax basis of the assets owned by AGH
and such subsidiaries, solely with respect to the Corporation; and
WHEREAS,
the parties to this Agreement desire to make certain arrangements to share any
tax benefits realized by the Corporation as a result of any
Exchange;
NOW,
THEREFORE, in consideration of the foregoing and the respective covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1
DEFINITIONS
Section
1.01. Definitions. As
used in this Agreement, the terms set forth in this Article 1 shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
“Advisory Firm” means [Insert Accounting Firm], or
any other accounting firm that is nationally recognized as being expert in Tax
matters and that is appointed by the Board and is reasonably acceptable to the
Principals.
“Advisory Firm Letter” means a
letter from the Advisory Firm stating that the relevant schedule, notice or
other information to be provided by the Corporation to the Applicable Principal
and all supporting schedules and work papers were prepared by the Corporation in
good faith.
“Affiliate” means, with respect
to any Person, any other Person that directly or indirectly, through one or more
intermediaries, Controls (as defined below), is Controlled by, or is under
common Control with, such first Person.
“Agreed Rate” means LIBOR plus
100 basis points.
“Agreement” is defined in the
preamble of this Agreement.
“Amended Schedule” is defined
in Section 2.04(b).
“Applicable Principal” means in
respect of that portion of any Tax Benefit Payment that arises from an Exchange
or a deemed Exchange pursuant to clause (v) of the definition of “Valuation Assumptions”, the
Exchanging Principal or Principal deemed to Exchange, as
applicable.
“Basis Adjustment” means the
adjustment to the Tax basis of an Exchange Asset as a result of an Exchange and
the payments made pursuant to this Agreement, as calculated under Section 2.01,
under Section 732(b) of the Code (in a situation where, as a result of one or
more Exchanges, AGH becomes an entity that is disregarded as separate from its
owner for Tax purposes) or Sections 743(b) and 754 of the Code (including in
situations where, following an Exchange, AGH remains in existence as an entity
for Tax purposes) or otherwise, as applicable, and, in each case, comparable
sections of state, local and foreign Tax laws. Notwithstanding any other
provision of this Agreement, the amount of any Basis Adjustment resulting from
an Exchange of one or more Units shall be determined without regard to any
Pre-Exchange Transfer of such Units and as if any such Pre-Exchange Transfer had
not occurred.
A “Beneficial Owner” of a
security means 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
2
“Board” means the board of
directors of the Corporation.
“Business Day” means Monday
through Friday of each week, except that a legal holiday recognized as such by
the government of the United States of America or the State of New York shall
not be regarded as a Business Day.
“Change of Control” means the
occurrence of any of the following events:
(i)
any “person” or “group” (as such terms are defined in Sections 13(d) and
14(d) of the Exchange Act) other than the Principals, Xxxxxx Xxxx Holding Ltd.
and their Permitted Transferees:
(A)
is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of 50% or more of the voting stock of
the Corporation;
(B)
in the context of a consolidation, merger or other corporate
reorganization in which the Corporation is not the surviving entity, 50% or more
of the voting stock generally entitled to elect directors of such surviving
entity (or in the case of a triangular merger, of the parent entity of such
surviving entity), calculated on a fully diluted basis; or
(C)
has obtained the power (whether or not exercised) to elect a majority of
the directors of the Corporation or its successors;
(ii)
the board
of directors of the Corporation or its successors shall cease to consist of a
majority of Continuing Directors;
(iii)
the
Corporation or its successors, alone or together with the Principals and their
respective Permitted Transferees, cease to own 50% or more of the equity
interests of AGH; or
(iv)
the sale
of all or substantially all the assets of the Corporation or AGH.
“Class A Shares” is defined in
the Recitals of this Agreement.
“Code” is defined in the
Recitals of this Agreement.
“Continuing Directors” means
the directors of the Corporation on the date of the pricing of the IPO and each
other director of the Corporation if such
3
“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.
“Corporation” is defined in the
Preamble of this Agreement.
“Corporation Return” means the
U.S. federal, state, local and/or foreign Tax Return, as applicable, of the
Corporation filed with respect to Taxes for any Taxable Year.
“Cumulative Net Realized Tax
Benefit” for a Taxable Year means the cumulative amount of Realized Tax
Benefits for all Taxable Years of the Corporation, up to and including such
Taxable Year, net of the cumulative amount of Realized Tax Detriments for the
same period. The Realized Tax Benefit and Realized Tax Detriment for each
Taxable Year shall be determined based on the most recent Tax Benefit Schedule
or Amended Schedule, if any, in existence at the time of such
determination.
“Default Rate” means LIBOR plus
300 basis points.
“Determination” shall have the
meaning ascribed to such term in Section 1313(a) of the Code or similar
provision of state, local and foreign Tax law, as applicable, or any other event
(including the execution of a Form 870−AD) that finally and conclusively
establishes the amount of any liability for Tax.
“Dispute” is defined in Section
7.08(a).
“Early Termination Date” means
the date of an Early Termination Notice for purposes of determining the Early
Termination Payment.
“Early Termination Notice” is
defined in Section 4.02.
“Early Termination Schedule” is
defined in Section 4.02.
“Early Termination Payment” is
defined in Section 4.03(b).
“Early Termination Rate” means
the long-term Treasury rate in effect on the applicable date.
“Exchange” is defined in the
Recitals of this Agreement; “Exchanged” and “Exchanging” shall have
correlative meanings.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
4
“Exchange Assets” means each
asset that is held by AGH, or by any of its direct or indirect subsidiaries that
is treated as a partnership or disregarded entity for purposes of the applicable
Tax, at the time of an Exchange.
“Exchange Basis Schedule” is
defined in Section 2.02.
“Exchange Date” is defined in
the Recitals of this Agreement.
“Exchange Payment” is defined
in Section 5.01.
“Expert” is defined in Section
7.09.
“Hypothetical Tax Liability”
means, with respect to any Taxable Year, the liability for Taxes of the
Corporation (or AGH, but only with respect to income realized by AGH the Tax
liability for which is allocable to the Corporation for such Taxable Year using
the same methods, elections, conventions and similar practices used on the
relevant Corporation Return) but using the Non-Stepped Up Tax Basis instead of
the Tax basis of the Exchange Assets and excluding any deduction attributable to
Imputed Interest.
“Imputed Interest” shall mean
any interest imputed under Section 1272, 1274 or 483 or other provision of the
Code and any similar provision of state, local and foreign Tax law with respect
to the Corporation’s payment obligations under this Agreement.
“Initiating Party” is defined
in Section 7.08(a).
“IPO” means the initial public
offering of the Class A Shares that is being consummated on the date
hereof.
“IRS” means the U.S. Internal
Revenue Service.
“LIBOR” means for each month
(or portion thereof) during any period, an interest rate per annum equal to the
rate per annum reported, on the date two days prior to the first day of such
month, as published by Reuters (or other commercially available source providing
quotations of LIBOR) for London interbank offered rates for U.S. dollar deposits
for such month (or portion thereof).
“LLC Agreement” means, with
respect to AGH, the Amended and Restated Limited Liability Company Agreement
dated [ ], 2009, among the Corporation and the Principals, as the same may be
amended from time to time in accordance with the terms thereof.
5
“Market
Value” means, with respect to the Class A Shares, on any given date: (i)
if the Class A Shares are listed for trading on the New York Stock Exchange, the
closing sale price per share of the Class A Shares on the New York Stock
Exchange on that date (or, if no closing sale price is reported, the last
reported sale price), (ii) if the Class A Shares are not listed for trading on
the New York Stock Exchange, the closing sale price (or, if no closing sale
price is reported, the last reported sale price) as reported on that date in
composite transactions for the principal national securities exchange registered
pursuant to Section 6(g) of the Exchange Act, on which the Class A Shares are
listed, (iii) if the Class A Shares are not so listed on a national securities
exchange, the last quoted bid price for the Class A Shares on that date in the
over-the-counter market as reported by Pink Sheets LLC or a similar
organization, or (iv) if the Class A Shares are not so quoted by Pink Sheets LLC
or a similar organization such value as the Board, in its sole discretion, shall
determine in good faith.
“Material Objection Notice” has
the meaning set forth in Section 4.02.
“Non-Stepped Up Tax Basis”
means, with respect to any asset at any time, the Tax basis that such asset
would have had at such time if no Basis Adjustment had been made.
“Notice” is defined in Section
7.01.
“Objection Notice” is defined
in Section 2.04(a).
“Opt Out Notice” is defined in
Section 3.04(a).
“Panel” is defined in Section
7.08(a).
“Payment Date” means any date
on which a payment is required to be made pursuant to this
Agreement.
“Permitted Transferee” shall
mean any of the Permitted Transferees (as defined in the LLC
Agreement).
“Person” means any individual,
corporation, firm, partnership, joint venture, limited liability company,
estate, trust, business association, organization, governmental entity or other
entity.
“Pre-Exchange Transfer” means
any transfer (including upon the death of a member) of one or more Units (i)
that occurs prior to an Exchange of such Units and (ii) to which Section 743(b)
of the Code applies.
“Principal” means each of
Xxxxxxx X. Xxxx and Xxxxxxx-Xxxx Xxxxxx, and any other Person that becomes a
Principal pursuant to Section 7.06.
“Realized Tax Benefit” means,
for a Taxable Year and for all Taxes collectively, the net excess, if any, of
the Hypothetical Tax Liability over the
6
“Realized Tax Detriment” means,
for a Taxable Year and for all Taxes collectively, the net excess, if any, of
the actual liability for Taxes of the Corporation (or AGH, but only with respect
to income realized by AGH the Tax liability for which is allocable to the
Corporation for such Taxable Year using the same methods, elections, conventions
and similar practices used on the relevant Corporation Return) over the
Hypothetical Tax Liability for such Taxable Year determined, for the avoidance
of doubt, using the “with or without” methodology. If all or a portion of the
actual liability for Taxes of the Corporation (or AGH, but only with respect to
income realized by AGH the Tax liability for which is allocable to the
Corporation for such Taxable Year using the same methods, elections, conventions
and similar practices used on the relevant Corporation Return) for the Taxable
Year arises as a result of an audit by a Taxing Authority of any Taxable Year,
such liability shall not be included in determining the Realized Tax Detriment
unless and until there has been a Determination.
“Reconciliation Dispute” has
the meaning set forth in Section 7.09.
“Reconciliation Procedures”
means those procedures set forth in Section 7.09.
“Responding Party” is defined
in Section 7.08(a).
“Schedule” means any Exchange
Basis Schedule or Tax Benefit Schedule and the Early Termination
Schedule.
“Senior Obligations” is defined
in Section 5.01.
“Subsidiaries” means, with
respect to any Person, as of any date of determination, any other Person as to
which such Person, owns, directly or indirectly, or otherwise controls more than
50% of the voting shares or other similar interests or the sole general partner
interest or managing member or similar interest of such Person.
7
“Tax Benefit Payment” is
defined in Section 3.01(b).
“Tax Benefit Schedule” is
defined in Section 2.03.
“Tax Return” means any return,
declaration, report or similar statement required to be filed with respect to
Taxes (including any attached schedules), including any information return,
claim for refund, amended return and declaration of estimated Tax.
“Taxable Year” means a Taxable
year of the Corporation as defined in Section 441(b) of the Code or comparable
section of state, local or foreign Tax law, as applicable (and, therefore, for
the avoidance of doubt, may include a period of less than 12 months for which a
Tax Return is prepared), in which there is a Basis Adjustment or increased
depreciation, amortization or interest deductions attributable to an
Exchange.
“Taxing Authority” means any
domestic, foreign, federal, national, state, county or municipal or other local
government, any subdivision, agency, commission or authority thereof, or any
quasi-governmental body exercising any Taxing authority or any other authority
exercising Tax regulatory authority.
“Treasury Regulations” means
the final, temporary and proposed regulations under the Code promulgated from
time to time (including corresponding provisions and succeeding provisions) as
in effect for the relevant Taxable period.
“Units” is defined in the
Recitals of this Agreement.
“Valuation Assumptions” means,
as of an Early Termination Date, or following a Change of Control, as
applicable, the assumptions that (i) in each Taxable Year ending on or after
such Early Termination Date, the Corporation will have sufficient Taxable income
to fully offset the deductions in such Taxable Year attributable to any Basis
Adjustment, increased depreciation or amortization deductions attributable to an
Exchange, and Imputed Interest, (ii) the U.S. federal income Tax rates and
state, local and foreign income Tax rates that will be in effect for each such
Taxable Year will be those specified for each such Taxable Year by the Code and
other law as in effect on the Early Termination Date, (iii) any loss carryovers
generated by any Basis Adjustment or Imputed Interest and available as of the
date of the Early Termination Schedule will be used by the Corporation on a pro
rata basis from the date of the Early Termination Schedule through the scheduled
expiration date of such loss carryovers, (iv) any non- amortizable assets will
be disposed of on the fifteenth anniversary of the Early
8
Section
1.02. Other Definitional and
Interpretative Provisions. The words “hereof”, “herein” and “hereunder”
and words of like import used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement. References to
Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits
and Schedules of this Agreement unless otherwise specified. All Exhibits and
Schedules annexed hereto or referred to herein are hereby incorporated in and
made a part of this Agreement as if set forth in full herein. Any capitalized
terms used in any Exhibit or Schedule but not otherwise defined therein, shall
have the meaning as defined in this Agreement. Any singular term in this
Agreement shall be deemed to include the plural, and any plural term the
singular. Whenever the words “include”, “includes” or “including” are used in
this Agreement, they shall be deemed to be followed by the words “without
limitation”, whether or not they are in fact followed by those words or words of
like import. “Writing”, “written” and comparable terms refer to printing, typing
and other means of reproducing words (including electronic media) in a visible
form. References to any agreement or contract are to that agreement or contract
as amended, modified or supplemented from time to time in accordance with the
terms thereof. References to any Person include the successors and permitted
assigns of that Person. References from or through any date mean, unless
otherwise specified, from and including or through and including,
respectively.
ARTICLE
2
DETERMINATION OF CUMULATIVE REALIZED TAX BENEFIT
Section
2.01. Basis
Adjustment.
(a) Exchange Assets. For
purposes of this Agreement, as a result of an Exchange, AGH (and each direct and
indirect subsidiary of AGH that is treated as a partnership for U.S. federal
income tax purposes) shall be entitled to a Basis Adjustment for each Exchange
Asset with respect to the Corporation, the amount of which Basis Adjustment will
be the excess, if any, of (i) the sum of (x) the Market Value of the Class A
Shares, cash or the amount of any other consideration transferred to the
Applicable Principal pursuant to the Exchange as payment for the exchanged
Units, to the extent attributable to such Exchange Assets, plus (y) the amount
of payments made pursuant to this Agreement with
9
(b) Imputed Interest. For
the avoidance of doubt, payments made under this Agreement shall not be treated
as resulting in a Basis Adjustment to the extent such payments are treated as
Imputed Interest.
Section
2.02. Exchange Basis
Schedule. Within 45 calendar days after the filing of the U.S. federal
income Tax return of the Corporation for each Taxable Year, the Corporation
shall deliver to each Principal a schedule (the “Exchange Basis Schedule”) that
shows, in reasonable detail, for purposes of federal income Taxes, (a) the
actual unadjusted Tax basis of the Exchange Assets as of each applicable
Exchange Date, (b) the Basis Adjustment with respect to the Exchange Assets as a
result of the Exchanges effected in such Taxable Year, calculated in the
aggregate, (c) the period or periods, if any, over which the Exchange Assets are
amortizable and/or depreciable and (d) the period or periods, if any, over which
each Basis Adjustment is amortizable and/or depreciable (which, for
non-amortizable assets, shall be based on the Valuation Assumptions). The
parties expect that all or substantially all of the Basis Adjustment with
respect to the Exchange Assets will relate to good will and/or going concern
value, which adjustment will be amortized over 15 years for U.S. federal income
tax purposes.
Section
2.03. Tax Benefit
Schedule. Within 45 calendar days after the filing of the U.S. federal
income Tax return of the Corporation for any Taxable Year in which there is a
Realized Tax Benefit or Realized Tax Detriment, the Corporation shall provide to
each Principal a schedule showing, in reasonable detail, the calculation of the
Realized Tax Benefit or Realized Tax Detriment for such Taxable Year (a “Tax Benefit Schedule”). The
Tax Benefit Schedule will become final as provided in Section 2.04(a) and may be
amended as provided in Section 2.04(b) (subject to the procedures set forth in
Section 2.04(b)). Notwithstanding any other provision of this Agreement, the
Corporation may seek, at its own expense, an opinion from a nationally
recognized law firm regarding whether any Basis Adjustment with respect to
Exchange Assets will result in any amortization or depreciation being available
to the Corporation, and the Corporation shall be permitted to rely on such
opinion in creating any Tax Benefit Schedule.
Section
2.04. Procedures,
Amendments.
10
(b)
Amended Schedule. The
applicable Schedule for any Taxable Year may be amended
from time to time by the Corporation (i) in connection with a Determination
affecting such Schedule, (ii) to correct material inaccuracies in the Schedule
identified as a result of the receipt of additional factual information relating
to a Taxable Year after the date the Schedule was provided to the Applicable
Principal, (iii) to comply with the Expert’s determination under the
Reconciliation Procedures, (iv) to reflect a material change in the Realized Tax
Benefit or Realized Tax Detriment for such Taxable Year attributable to a
carryback or carryforward of a loss or other Tax item to such Taxable Year, (v)
to reflect a material change in the Realized Tax Benefit or Realized Tax
Detriment for such Taxable Year attributable to an amended Tax Return filed for
such Taxable Year, or (vi) to adjust the Exchange Basis Schedule to take into
account payments made pursuant to this Agreement (such Schedule, an “Amended Schedule”).
ARTICLE
3
TAX BENEFIT PAYMENTS
Section
3.01. Payments.
(a)
Within ten business days of a Tax Benefit Schedule that was delivered to
an Applicable Principal becoming final in accordance with Section 2.04(a), the
Corporation shall pay to the Applicable Principal for such Taxable Year the Tax
Benefit Payment determined pursuant to Section 3.01(b). Each such Tax Benefit
Payment shall be made by wire transfer of immediately available
11
(b)
A “Tax Benefit
Payment” means an amount, not less than zero, equal to 85% of the sum of
the Net Tax Benefit and the Interest Amount. The “Net Tax Benefit” for each
Taxable Year shall be an amount equal to the excess, if any, of the Cumulative
Net Realized Tax Benefit as of the end of such Taxable Year over the total
amount of payments previously made under this Section 3.01, excluding payments
attributable to the Interest Amount; provided, however, that for the
avoidance of doubt, no Principal shall be required to return any portion of any
previously received Tax Benefit Payment under any circumstances. The “Interest Amount” for a given
Taxable Year shall equal the interest on the Net Tax Benefit for such Taxable
Year calculated at the Agreed Rate from the due date (without regard to
extensions) for filing the Corporation Return with respect to Taxes for the most
recently ended Taxable Year until the Payment Date. The Net Tax Benefit and the
Interest Amount shall be determined separately with respect to each separate
Exchange. Notwithstanding the foregoing, for each Taxable Year ending on or
after the date of a Change of Control, all Tax Benefit Payments, whether paid
with respect to Units that were Exchanged (i) prior to the date of such Change
of Control or (ii) on or after the date of such Change of Control, shall be
calculated by utilizing the assumptions in clauses (i), (iii) and (iv) of the
definition of Valuation Assumptions, substituting in each case the term “the
closing date of a Change of Control” for an “Early Termination
Date”.
Section
3.02. No Duplicative
Payments. It is intended that the provisions of this Agreement will not
result in duplicative payment of any amount (including interest) required under
this Agreement. It is also intended that the provisions of this Agreement will
result in 85% of the Corporation’s Cumulative Net Realized Tax Benefit, and the
Interest Amount thereon, being paid to the Principals pursuant to this
Agreement. The provisions of this Agreement shall be construed in the
appropriate manner to achieve these fundamental results.
Section
3.03. Pro Rata
Payments. For the avoidance of doubt, to the extent that (i) the
Corporation’s deductions with respect to any Basis Adjustment are limited in a
particular Taxable Year or (ii) the Corporation lacks sufficient funds to
satisfy or is prevented under any credit agreement or other arrangement from
satisfying its obligations to make all Tax Benefit Payments due in a particular
Taxable Year, the limitation on the deduction, or the Tax Benefit Payments that
may be made, as the case may be, shall be taken into account or made for the
Applicable Principal in the same proportion as Tax Benefit Payments would have
been made absent the limitations in clauses (i) and (ii) of this Section 3.03,
as applicable.
Section
3.04. Opt
Out.
12
(b)
This
Agreement shall not apply to any Exchange which is covered by an Opt Out Notice
delivered pursuant to Section 3.04(a) (and which Opt Out Notice has not been
revoked as described in that section), and all computations hereunder, including
the computation of any Tax Benefit Payments and determination of any amounts
attributable to any Principal, shall be made without taking into account
Exchanges covered by any such Opt Out Notice. For the avoidance of doubt, an
Applicable Principal who makes an election pursuant to Section 3.04(a) shall
remain entitled to payments under this Agreement with respect to any Exchanges
for which no election has been made pursuant to Section 3.04(a).
ARTICLE
4
TERMINATION
Section
4.01. Early
Termination and Breach of Agreement.
(a)
The Corporation may terminate this Agreement with respect to all of the Units
held (or previously held and Exchanged) by all Principals at any time by paying
to the Principals the Early Termination Payment; provided, however, that this Agreement
shall terminate only upon the receipt of the Early Termination Payment by all
Principals, and provided, further, that the Corporation
may withdraw any notice to execute its termination rights under this Section
4.01(a) prior to the time at which any Early Termination Payment has been paid.
Upon payment of the Early Termination Payments by the Corporation, neither the
Principals nor the Corporation shall have any further payment obligations under
this Agreement, other than for any (i) Tax Benefit Payment agreed by the
Corporation acting in good faith and the Applicable Principal to be due and
payable but unpaid as of the Early Termination Notice and (ii) Tax Benefit
Payment due for the Taxable Year ending with or including the date of the Early
Termination Notice (except to the extent that the amount described in clause
(ii) is included in the Early Termination Payment). For the avoidance of doubt,
if an Exchange occurs after the Corporation makes the Early Termination Payments
with respect to all Principals, the Corporation shall have no obligations under
this Agreement with respect to such Exchange, and its only obligations under
this
13
(b)
In the
event that the Corporation breaches any of its material obligations under this
Agreement, whether as a result of failure to make any payment when due, failure
to honor any other material obligation required hereunder or by operation of law
as a result of the rejection of this Agreement in a case commenced under the
Bankruptcy Code, Title 11, U.S.C., or otherwise, then all obligations hereunder
shall be accelerated and such obligations shall be calculated as if an Early
Termination Notice had been delivered on the date of such breach and shall
include, but shall not be limited to, (i) the Early Termination Payment
calculated as if an Early Termination Notice had been delivered on the date of a
breach, (ii) any Tax Benefit Payment agreed by the Corporation acting in good
faith and any Applicable Principal to be due and payable but unpaid as of the
date of a breach, and (iii) any Tax Benefit Payment due for the Taxable Year
ending with or including the date of a breach. Notwithstanding the foregoing, in
the event that the Corporation breaches this Agreement, the Principals shall be
entitled to elect to receive the amounts set forth in clauses (i), (ii) and
(iii) above or to seek specific performance of the terms hereof. The parties
agree that the failure to make any payment due pursuant to this Agreement within
three months of the date such payment is due shall be deemed to be a breach of a
material obligation under this Agreement for all purposes of this Agreement, and
that it shall not be considered to be a breach of a material obligation under
this Agreement to make a payment due pursuant to this Agreement within three
months of the date such payment is due.
(c)
The
Corporation, AGH and each of the Principals hereby acknowledge that, as of the
date of this Agreement, the aggregate value of the Tax Benefit Payments cannot
reasonably be ascertained for U.S. federal income Tax or other applicable Tax
purposes.
Section
4.02. Early Termination
Notice. If the Corporation chooses to exercise its right of early
termination under Section 4.01 above, the Corporation shall deliver to each
present or former Principal a notice of such intention to exercise such right
(“Early Termination
Notice”) and a schedule (the “Early Termination Schedule”)
specifying the Corporation’s intention to exercise such right and showing in
reasonable detail the calculation of the Early Termination Payment. The Early
Termination Schedule shall become final and binding on all parties unless an
Applicable Principal, within 30 calendar days after receiving the Early
Termination Schedule, provides the Corporation with notice of a material
objection to such Schedule made in good faith (“Material Objection Notice”).
If the parties, for any reason, are unable to successfully resolve the issues
raised in such notice within 30 calendar days after receipt by the Corporation
of the Material Objection Notice, the Corporation and the relevant Principal
shall employ the Reconciliation Procedures as described in Section 7.09 of this
Agreement.
14
(a)
Within
ten Business Days after the Early Termination Schedule has become final and
binding, the Corporation shall pay to each Applicable Principal an amount equal
to the Early Termination Payment. Such payment shall be made by wire transfer of
immediately available funds to a bank account designated by the Applicable
Principal.
(b)
The
“Early Termination
Payment” as of the date of the delivery of an Early Termination Schedule
shall equal with respect to the Applicable Principal the present value,
discounted at the Early Termination Rate as of such date, of all Tax Benefit
Payments that would be required to be paid by the Corporation to the Applicable
Principal beginning from the Early Termination Date and assuming that the
Valuation Assumptions are applied.
ARTICLE
5
SUBORDINATION AND LATE PAYMENTS
Section
5.01. Subordination.
Notwithstanding any other provision of this Agreement to the contrary, any Tax
Benefit Payment or Early Termination Payment required to be made by the
Corporation to the Principals under this Agreement (an “Exchange Payment”) shall rank
subordinate and junior in right of payment to any principal, interest or other
amounts due and payable in respect of any obligations in respect of indebtedness
for borrowed money of the Corporation and its Subsidiaries (“Senior Obligations”) and shall
rank pari passu with
all current or future unsecured obligations of the Corporation that are not
Senior Obligations.
Section
5.02. Late Payments by the
Corporation. The amount of all or any portion of any Exchange Payment not
made to any Principal when due (without regard to Section 5.01) under the terms
of this Agreement shall be payable together with any interest thereon, computed
at the Default Rate and commencing from the date on which such Exchange Payment
was due and payable.
ARTICLE
6
NO DISPUTES; CONSISTENCY; COOPERATION
Section
6.01. Principal Participation
in the Corporation and AGH’s Tax Matters. Except as otherwise
provided herein, the Corporation shall have full responsibility for, and
sole discretion over, all Tax matters concerning the Corporation and AGH,
including the preparation, filing or amending of any Tax Return and defending,
contesting or settling any issue pertaining to Taxes. Notwithstanding the
foregoing, the Corporation shall notify each relevant
15
Section
6.02. Consistency.
Except upon the written advice of an Advisory Firm or except to the extent the
Corporation’s reporting as described herein may cause the gain recognized by an
Applicable Principal from an Exchange to be treated as ordinary income or
short-term capital gain, the Corporation and the Applicable Principal agree to
report and cause to be reported for all purposes, including U.S. federal, state,
local and foreign Tax purposes and financial reporting purposes, all Tax-related
items (including the Basis Adjustment and each Tax Benefit Payment) in a manner
consistent with that specified by the Corporation in any Schedule required to be
provided by or on behalf of the Corporation under this Agreement. Any Dispute
concerning such advice shall be subject to the terms of Section 7.09. In the
event that an Advisory Firm is replaced, such replacement Advisory Firm shall be
required to perform its services under this Agreement using procedures and
methodologies consistent with the previous Advisory Firm, unless (a) otherwise
required by law or (b) the Corporation and the Applicable Principal agree to the
use of other procedures and methodologies.
Section
6.03. Cooperation. The
Applicable Principal shall (a) furnish to the Corporation in a timely manner
such information, documents and other materials as the Corporation may
reasonably request for purposes of making any determination or computation
necessary or appropriate under this Agreement, preparing any Tax Return or
contesting or defending any audit, examination or controversy with any Taxing
Authority, (b) make itself available to the Corporation and its representatives
to provide explanations of documents and materials and such other information as
the Corporation or its representatives may reasonably request in connection with
any of the matters described in clause (a) above, and (c) reasonably cooperate
in connection with any such matter described in clause (a) above. The
Corporation shall reimburse the Applicable Principal for any reasonable
third-party costs and expenses incurred pursuant to this Section
6.03.
ARTICLE
7
MISCELLANEOUS
Section
7.01. Notices. Any
notice, request, claim, demand, approval, consent, waiver or other communication
required or permitted to be given to any
16
If to the
Corporation, to:
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
with a
copy to:
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention: Xxxxx
Xxxxxx, Esq.
Xxxxxxx
X. Xxxxxx, Esq.
if to
AGH, to:
Artio
Global Holdings, LLC
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
with a
copy to:
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile:
(000) 000-0000
Attention: Xxxxx
Xxxxxx, Esq.
Xxxxxxx
X. Xxxxxx, Esq.
if to
Xxxxxxx X. Xxxx, to:
Xxxxxxx
X. Xxxx
c/o Artio
Global Holdings, LLC
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
with a
copy to:
17
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile: (000)
000-0000
Attention: Xxxx
X. Xxxxxx, Esq.
Xxxxx X.
Gerkis, Esq.
if to
Xxxxxxx-Xxxx Xxxxxx, to:
Xxxxxxx-Xxxx
Xxxxxx
c/o Artio
Global Holdings, LLC
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
with a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile: (000)
000-0000
Attention: Xxxx
X. Xxxxxx, Esq.
Xxxxx X.
Gerkis, Esq.
Section
7.02. Counterparts.
This Agreement may be executed (including by facsimile transmission) with
counterpart signature pages or in any number of counterparts, each of which
shall be deemed to be an original and all of which shall, taken together, be
deemed to be one and the same instrument.
Section
7.03. Entire Agreement; No
Third-Party Beneficiaries. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person other than the parties hereto and
their respective heirs, successors, legal representatives and permitted assigns,
any rights or remedies hereunder.
Section
7.04. Governing Law.
This Agreement shall be governed by, construed and enforced in accordance with,
the laws of the State of New York, without regard to the conflict of laws
principles thereof that would mandate the application of the laws of another
jurisdiction.
Section
7.05. Severability. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, all other terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the economic or legal
18
Section
7.06. Successors;
Assignment; Amendments; and Waivers.
(a)
No
Principal may assign this Agreement to any person without the prior written
consent of the Corporation; provided, however, that (i) to the
extent Units are transferred in accordance with the terms of the LLC Agreement,
the transferring Principal shall have the option to assign to the transferee of
such Units the transferring Principal’s rights under this Agreement with respect
to such transferred Units, as long as such transferee has executed and
delivered, or, in connection with such transfer, executes and delivers, a
joinder to this Agreement, in form and substance substantially similar to
Exhibit A to this Agreement, agreeing to become a “Principal” for all purposes
of this Agreement, except as otherwise provided in such joinder, and (ii) once
an Exchange has occurred, any and all payments that may become payable to a
Principal pursuant to this Agreement with respect to the Exchanged Units may be
assigned to any Person or Persons as long as any such Person has executed and
delivered, or, in connection with such assignment, executes and delivers, a
joinder to this Agreement, in form and substance substantially similar to
Exhibit A to this Agreement, agreeing to be bound by Section 7.12 and
acknowledging specifically the terms of Section 7.06(b). For the avoidance of
doubt, if a Principal transfers Units but does not assign to the transferee of
such Units such Principal’s rights under this Agreement with respect to such
transferred Units, such Principal shall continue to be entitled to receive the
Tax Benefit Payments arising in respect of a subsequent Exchange of such
Units.
(b)
Notwithstanding
the foregoing provisions of this Section 7.06, no transferee described in clause
(i) of the first sentence of Section 7.06(a) shall have the right to enforce the
provisions of Section 2.04, 4.02, or 6.02 of this Agreement, and no assignee
described in clause (ii) of the first sentence of Section 7.06(a) shall have any
rights under this Agreement except for the right to enforce its right to receive
payments under this Agreement.
(c)
No
provision of this Agreement may be amended unless such amendment is approved in
writing by each of the Corporation and AGH and by Principals who would be
entitled to receive at least two-thirds of the Early Termination Payments
payable to all Principals hereunder if the Corporation had exercised its right
of early termination on the date of the most recent Exchange prior to such
amendment (excluding, for purposes of this sentence, all payments made to any
Principal pursuant to this Agreement since the date of such most recent
Exchange); provided,
however, that no such
amendment shall be effective
19
(d)
Except as otherwise specifically provided herein, all of the terms and
provisions of this Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and their respective
successors, permitted assigns, heirs, executors, administrators and legal
representatives. The Corporation shall require and cause any direct or indirect
successor (whether by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Corporation, by written
agreement, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
if no such succession had taken place. Notwithstanding anything to the contrary
herein, in the event a Principal transfers his Units to a Permitted Transferee,
excluding any other Principal, such Principal shall have the right, on behalf of
such transferee, to enforce the provisions of Sections 2.04, 4.02 or 6.02 with
respect to such transferred Units.
Section
7.07. Titles and
Subtitles. The titles of the sections and subsections of this Agreement
are for convenience of reference only and are not to be considered in construing
this Agreement.
Section
7.08. Resolution of
Disputes.
(a)
Any and all claims, disputes and other disagreements arising hereunder
(each, a “Dispute”)
which are not governed by Section 7.09, including any ancillary claims of any
party, arising out of, relating to or in connection with the validity,
negotiation, execution, interpretation, performance or non- performance of this
Agreement (including the validity, scope and enforceability of this Section 7.08
and Section 7.09) shall be governed by this Section 7.08. The parties hereto
shall attempt in good faith to resolve all Disputes by negotiation. If a Dispute
between the parties hereto cannot be resolved in such manner, such Dispute
shall, at the request of any party, after providing written notice to the other
party or parties to the Dispute, be submitted to arbitration in New York in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect. The proceeding shall be confidential. The party
initially asserting the Dispute (the “Initiating Party”) shall
notify the other party (the “Responding Party”) of the name
and address of the arbitrator chosen by the Initiating Party and shall
specifically describe the Dispute in issue to be submitted to arbitration.
Within 30 days of receipt of such notification, the Responding Party shall
notify the Initiating Party of its answer to the Dispute, any counterclaim which
it wishes to assert in the arbitration and the name and address of the
arbitrator chosen by the Responding Party. If the Responding Party does not
appoint an arbitrator during such 30-day period, appointment of the second
arbitrator shall be made by the American Arbitration Association upon request
of
20
the Initiating Party. The two arbitrators so chosen or appointed
shall choose a third arbitrator, who shall serve as president of the panel of
arbitrators (the “Panel”) thus composed. If the
two arbitrators so chosen or appointed fail to agree upon the choice of a third
arbitrator within 30 days from the appointment of the second arbitrator, the
third arbitrator will be appointed by the American Arbitration Association upon
the request of the arbitrators or either of the parties. In all cases, the
arbitrators must be persons who have substantial experience in tax matters and
are lawyers admitted to the practice of law in the State of New York. The
arbitrators will act by majority decisions. Any decision of the arbitrators
shall (i) be rendered in writing and shall bear the signatures of at least two
arbitrators, and (ii) identify the members of the Panel, and the time and place
of the award granted. Absent fraud or manifest error, any such decision of the
Panel shall be final, conclusive and binding on the parties to the arbitration
and enforceable by a court of competent jurisdiction. The expenses of the
arbitration shall be borne equally by the parties to the arbitration; provided,
however, that each party shall pay for and bear the costs of its own experts,
evidence and legal counsel, unless the arbitrator rules otherwise in the
arbitration. The parties shall complete all discovery within 30 days after the
Panel is composed, shall complete the presentation of evidence to the Panel
within 15 days after the completion of discovery, and a final decision with
respect to the matter submitted to arbitration shall be rendered within 15 days
after the completion of presentation of evidence. The parties hereto shall cause
to be kept a record of the proceedings of any matter submitted to arbitration
hereunder. Performance under this Agreement shall continue if reasonably
possible during any arbitration proceedings. In addition to monetary damages,
the arbitrator shall be empowered to award equitable relief, including an
injunction and specific performance of any obligation under this Agreement. The
arbitrator is not empowered to award damages in excess of compensatory damages,
and each party hereby irrevocably waives any right to recover punitive,
exemplary or similar damages with respect to any Dispute. The award shall be the
sole and exclusive remedy between the parties regarding any claims,
counterclaims, issues, or accounting presented to the arbitral tribunal.
Judgment upon any award may be entered and enforced in any court having
jurisdiction over a party or any of its assets.
(b)
Notwithstanding the provisions of Section 7.08(a), the Corporation may
bring an action or special proceeding in any court of competent jurisdiction for
the purpose of compelling a party to arbitrate, seeking temporary or preliminary
relief in aid of an arbitration hereunder, and/or enforcing an arbitration award
and, for the purposes of this Section 7.08(b), each Principal (i) expressly
consents to the application of Section 7.08(c) to any such action or proceeding,
(ii) agrees that proof shall not be required that monetary damages for breach of
the provisions of this Agreement would be difficult to calculate and that
remedies at law would be inadequate, and (iii) irrevocably appoints the
Corporation as such Principal’s agent for service of process in connection with
any such action or proceeding and agrees that service of process upon such
agent, who shall promptly advise such Principal in writing of any such service
of
21
(c)
The parties hereto agree that any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection
with, this Agreement or the transactions contemplated hereby that is brought in
accordance with Section 7.08(b) shall be brought and maintained exclusively in
the United States District Court for the Southern District of New York or the
Supreme Court of the State of New York located in the County of New York. Each
of the parties irrevocably consents to submit to the personal jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding. Process in any such suit, action or proceeding in
such courts may be served, and shall be effective, on any party anywhere in the
world, whether within or without the jurisdiction of any such court, by any of
the methods specified for the giving of Notices pursuant to Section 7.01. Each
of the parties irrevocably waives, to the fullest extent permitted by law, any
objection or defense that it may now or hereafter have based on venue,
inconvenience of forum, the lack of personal jurisdiction and the adequacy of
service of process (as long as the party was provided Notice in accordance with
the methods specified in Section 7.01) in any suit action or proceeding brought
in such courts. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING SEEKING TO ENFORCE ANY
PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section
7.09. Reconciliation.
In the event that the Corporation and the relevant Principal are unable to
resolve a disagreement with respect to the matters governed by Sections 2.04,
4.02 and 6.02 within the relevant period designated in this Agreement (“Reconciliation Dispute”), the
Reconciliation Dispute shall be submitted for determination to a nationally
recognized expert (the “Expert”) in the particular
area of disagreement mutually acceptable to both parties. The Expert shall be a
partner in a nationally recognized accounting firm or a law firm (other than the
Advisory Firm), and the Expert shall not, and the firm that employs the Expert
shall not, have any material relationship with either the Corporation or the
relevant Principal or other actual or potential conflict of interest. If the
parties are unable to agree on an Expert within 15 days of receipt by the
respondent(s) of written notice of a Reconciliation Dispute, the Expert shall be
appointed by the International Chamber of Commerce Centre for Expertise. The
Expert shall resolve any matter relating to the Exchange Basis Schedule or an
amendment thereto or the Early Termination Schedule or an amendment thereto
within 30 calendar days and shall resolve any matter relating to a Tax Benefit
Schedule or an amendment thereto within 15 calendar days or as soon thereafter
as is reasonably practicable, in each case after the matter has been submitted
to the Expert for resolution. Notwithstanding the preceding sentence, if the
matter is not resolved before any payment that is the subject of a
disagreement
22
Section
7.10. Withholding. The
Corporation shall be entitled to deduct and withhold from any payment payable
pursuant to this Agreement such amounts as the Corporation is required to deduct
and withhold with respect to the making of such payment under the Code or any
provision of state, local or foreign Tax law. To the extent that amounts are so
withheld and paid over to the appropriate Taxing Authority by the Corporation,
such withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the Applicable Principal.
Section
7.11. Admission of the
Corporation into a Consolidated Group; Transfers of Corporate
Assets.
(a)
If the
Corporation becomes a member of an affiliated or consolidated group of
corporations that files a consolidated income Tax return pursuant to Sections
1501, et seq. of the
Code or any corresponding provisions of state, local or foreign law, then: (i)
the provisions of this Agreement shall be applied with respect to the group as a
whole; and (ii) Tax Benefit Payments, Early Termination Payments and other
applicable items hereunder shall be computed with reference to the consolidated
Taxable income of the group as a whole.
(b)
If any
entity that is obligated to make an Exchange Payment hereunder transfers one or
more assets to a corporation with which such entity does not file a consolidated
Tax return pursuant to Section 1501 of the Code, such entity, for purposes of
calculating the amount of any Exchange Payment (e.g., calculating the gross
income of the entity and determining the Realized Tax Benefit of such entity)
due hereunder, shall be treated as having disposed of such asset in a fully
Taxable transaction on the date of such contribution. The consideration deemed
to be received by such entity shall be equal to the fair market value of the
contributed asset, plus (i) the amount of debt to which such asset is subject,
in the case of a contribution of an encumbered asset or (ii) the
23
Section
7.12. Confidentiality.
(a)
Each
Principal and assignee acknowledges and agrees that the information of the
Corporation and of its Affiliates is confidential and, except in the course of
performing any duties as necessary for the Corporation and its Affiliates, as
required by law or legal process or to enforce the terms of this Agreement, such
person shall keep and retain in the strictest confidence and not disclose to any
Person any confidential matters, acquired pursuant to this Agreement, of the
Corporation and its Affiliates and successors, concerning AGH and its Affiliates
and successors or the other Principals, learned by the Principal heretofore or
hereafter. This Section 7.12(a) shall not apply to (i) any information that has
been made publicly available by the Corporation or any of its Affiliates,
becomes public knowledge (except as a result of an act of such Principal in
violation of this Agreement) or is generally known to the business community and
(ii) the
disclosure of information to the extent necessary for a Principal to prepare and
file his or her Tax returns, to respond to any inquiries regarding the same from
any Taxing authority or to prosecute or defend any action, proceeding or audit
by any Taxing authority with respect to such returns. Notwithstanding anything
to the contrary herein, each Principal and assignee (and each employee,
representative or other agent of such Principal or assignee, as applicable) may
disclose to any and all Persons, without limitation of any kind, the Tax
treatment and Tax structure of the Corporation, AGH, the Principals and their
Affiliates, and any of their transactions, and all materials of any kind
(including opinions or other Tax analyses) that are provided to the Principals
relating to such Tax treatment and Tax structure.
(b)
If a
Principal or assignee commits a breach, or threatens to commit a breach, of any
of the provisions of Section 7.12(a), the Corporation shall have the right and
remedy to have the provisions of Section 7.12(a) specifically enforced by
injunctive relief or otherwise by any court of competent jurisdiction without
the need to post any bond or other security, it being acknowledged and agreed
that any such breach or threatened breach shall cause irreparable injury to the
Corporation or any of its Subsidiaries or the other Principals and the accounts
and funds managed by the Corporation and that money damages alone shall not
provide an adequate remedy to such Persons. Such rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies available at law
or in equity.
Section
7.13. LLC Agreement.
This Agreement shall be treated as part of the partnership agreement of AGH as
described in Section 761(c) of the Code and Sections 1.704−1(b)(2)(ii)(h) and
1.761−1(c) of the Treasury Regulations.
Section
7.14. Partnerships. The
Corporation hereby agrees that, to the extent it acquires a general partnership
interest, managing member interest or
24
[Signature
page follows.]
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Title:
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ARTIO
GLOBAL HOLDINGS LLC
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Xxxxxxx
X. Xxxx
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EXHIBIT
A
JOINDER
This
JOINDER (this “Joinder”)
to the Tax Receivable Agreement (as defined below), dated as of ____________, by
and among Artio Global Investors Inc., a Delaware corporation (the “Corporation”), Artio Global
Holdings LLC, a Delaware limited liability company (“AGH”) and ______________
(“Permitted Transferee”).
WHEREAS,
on ____________, the Permitted Transferee acquired (the “Acquisition”) ___ Units in AGH
and the corresponding shares of Class B common stock of the Corporation
(collectively, “Interests” and, together with
all other Interests hereinafter acquired by the Permitted Transferee from
Transferor and its Permitted Transferees (as defined in the Tax Receivable
Agreement dated as of ________, 2009 (as the same may be amended from time to
time, the “Tax Receivable Agreement”), among
the Corporation, AGH and the other parties thereto), the “Acquired Interests”) from
______________ (“Transferor”); and
WHEREAS,
Transferor, in connection with the Acquisition, has required Permitted
Transferee to execute and deliver this Joinder pursuant to Section 7.06 of the
Tax Receivable Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the respective covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound, Permitted Transferee hereby agrees as follows:
Section
1.1. Definitions. To
the extent capitalized words used in this Joinder are not defined in this
Joinder, such words shall have the respective meanings set forth in the Tax
Receivable Agreement.
Section
1.2. Joinder. Permitted
Transferee hereby acknowledges and agrees to become a “Principal” (as defined in
the Tax Receivable Agreement) for all purposes of the Tax Receivable Agreement,
including but not limited to, being bound by Sections 2.04, 4.02, 6.01, 6.02 and
7.12 of the Tax Receivable Agreement, with respect to the Acquired Interests,
and any other Interests Permitted Transferee acquires hereafter. Permitted
Transferee hereby acknowledges the terms of Section 7.06(b) of the Tax
Receivable Agreement.
Section
1.3. Notice. Any
notice, request, consent, claim, demand, approval, waiver or other communication
hereunder to Permitted Transferee shall be delivered or sent to Permitted
Transferee at the address set forth on the signature page hereto in accordance
with Section 7.01 of the Tax Receivable Agreement.
Section
1.4. Governing Law.
THIS JOINDER SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS
[Signature
page follows.]
| [PERMITTED TRANSFEREE] | |||
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Name:
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Address:
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Address
for Notices:
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Signature
Page for Joinder by ____________
to
the Tax Receivable Agreement
