Download OM Asset Management plc (Form: 8-K, Received: 10

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 15, 2014
OM Asset Management plc
(Exact name of registrant as specified in its charter)
England and Wales
(State or other jurisdiction
of incorporation)
6282
(Primary Standard Industrial
Classification Code Number)
98-1179929
(IRS Employer
Identification Number)
5th Floor, Millennium Bridge House
2 Lambeth Hill
London EC4V 4GG, United Kingdom
+44-20-7002-7000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01
Entry into a Material Definitive Agreement
On October 8, 2014, Old Mutual (US) Holdings Inc. entered into a seed capital management agreement (the “Seed Capital Management
Agreement”) with Old Mutual plc (the “Parent”) and certain of its affiliates, Millpencil Limited, Millpencil (U.S.) LP, and MPL (UK) Limited.
A detailed description of the Seed Capital Management Agreement is included in Amendment No. 7 to the Registration Statement on Form
S-1, filed with the Securities and Exchange Commission (the “SEC”) on October 3, 2014 (the “IPO Registration Statement”), under the caption
“Certain Relationships and Related Party Transactions—Relationship with Our Parent and OMGUK Following This Offering—Seed Capital
Management Agreement”. Such description is hereby incorporated by reference into this Item 1.01. A copy of the Seed Capital Management
Agreement is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K, and is hereby incorporated by reference into this Item 1.01.
On October 8, 2014, OM Asset Management plc (the “Company”) entered into a co-investment deed (the “Co-Investment Deed”) with
OM Group (UK) Limited (“OMGUK”). A detailed description of the Co-Investment Deed is included in the IPO Registration Statement, under
the caption “Certain Relationships and Related Party Transactions—Relationship with Our Parent and OMGUK Following This
Offering—Co-Investment Deed.” Such description is hereby incorporated by reference into this Item 1.01. A copy of the Co-Investment Deed
is filed herewith as Exhibit 10.2 to this Current Report on Form 8-K, and is hereby incorporated by reference into this Item 1.01.
On October 8, 2014, the Company entered into an intellectual property license agreement (the “Intellectual Property License
Agreement”) with the Parent and Old Mutual Life Assurance Company (South Africa) Ltd. A detailed description of the Intellectual Property
License Agreement is included in the IPO Registration Statement, under the caption “Certain Relationships and Related Party
Transactions—Relationship with Our Parent and OMGUK Following This Offering—Intellectual Property Licensing Agreement.” Such
description is hereby incorporated by reference into this Item 1.01. A copy of the Intellectual Property License Agreement is filed herewith as
Exhibit 10.3 to this Current Report on Form 8-K, and is hereby incorporated by reference into this Item 1.01.
On October 8, 2014, the Company entered into a deferred tax asset deed (the “Deferred Tax Asset Deed”) with OMGUK. A detailed
description of the Deferred Tax Asset Deed is included in the IPO Registration Statement, under the caption “Certain Relationships and Related
Party Transactions—Relationship with Our Parent and OMGUK Following This Offering—Deferred Tax Asset Deed.” Such description is
hereby incorporated by reference into this Item 1.01. A copy of the Deferred Tax Asset Deed is filed herewith as Exhibit 10.4 to this Current
Report on Form 8-K, and is hereby incorporated by reference into this Item 1.01.
On October 8, 2014, the Company entered into a registration rights agreement (the “Registration Rights Agreement”) with the Parent and
OMGUK. A detailed description of the Registration Rights Agreement is included in the IPO Registration Statement, under the caption
“Certain Relationships and Related Party Transactions—Relationship with Our Parent and OMGUK Following This Offering—Parent
Registration Rights Agreement.” Such description is hereby incorporated by reference into this Item 1.01. A copy of the Registration Rights
Agreement is filed herewith as Exhibit 10.5 to this Current Report on Form 8-K, and is hereby incorporated by reference into this Item 1.01.
On October 8, 2014, the Company entered into a shareholder agreement (the “Shareholder Agreement”) with the Parent. A detailed
description of the Shareholder Agreement is included in the IPO Registration Statement, under the caption “Certain Relationships and Related
Party Transactions—Relationship with Our Parent and OMGUK Following This Offering—Shareholder Agreement.” Such description is
hereby incorporated by reference into this Item 1.01. A copy of the Shareholder Agreement is filed herewith as Exhibit 10.6 to this Current
Report on Form 8-K, and is hereby incorporated by reference into this Item 1.01.
On October 15, 2014, the Company entered into a revolving credit agreement (the “Revolving Credit Agreement”) with certain lenders
and Citibank, N.A., as administrative agent, with Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated as
joint book runners and joint lead arrangers. A detailed description of the Revolving Credit Agreement is included in the IPO Registration
Statement, under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Capital Resources
and Liquidity—Future Capital Needs.” Such description is hereby incorporated by reference into this Item 1.01. A copy of the Revolving
Credit Agreement is filed herewith as Exhibit 10.7 to this Current Report on Form 8-K, and is hereby incorporated by reference into this
Item 1.01.
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Item 8.01
Other Events.
On October 15, 2014, the Company issued a press release announcing the completion of the offering of 22,000,000 ordinary shares, all of
which were sold by OMGUK, one of its affiliates. A copy of the press release, which has been furnished as Exhibit 99.1 to this Current Report
on Form 8-K, is incorporated herein by reference.
Item 9.01
Financial Statements and Exhibits
10.1
Seed Capital Management Agreement, dated October 8, 2014, by and among Old Mutual (US) Holdings Inc., Old Mutual plc and
certain of its affiliates, Millpencil Limited, Millpencil (U.S.) LP, and MPL (UK) Limited.
10.2
Co-Investment Deed, dated October 8, 2014, by and between OM Asset Management plc and OM Group (UK) Limited.
10.3
Intellectual Property License Agreement, dated October 8, 2014, by and among OM Asset Management plc, Old Mutual plc, and
Old Mutual Life Assurance Company (South Africa) Ltd.
10.4
Deferred Tax Asset Deed, dated October 8, 2014, by and between OM Asset Management plc and OM Group (UK) Limited.
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10.5
Registration Rights Agreement, dated October 8, 2014, by and among OM Asset Management plc, Old Mutual plc, and OM Group
(UK) Limited.
10.6
Shareholder Agreement, dated October 8, 2014, by and between OM Asset Management plc and Old Mutual plc.
10.7
Revolving Credit Agreement, dated October 15, 2014, by and among OM Asset Management plc, certain lenders, and Citibank
N.A., as administrative agent, with Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint
book runners and joint lead arrangers.
99.1
Press Release, dated October 15, 2014.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this form to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: October 17, 2014
OM ASSET MANAGEMENT PLC
By: /S/ STEPHEN H. BELGRAD
Name: Stephen H. Belgrad
Title: Executive Vice President and Chief Financial Officer
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Exhibit 10.1
Execution Copy
SEED CAPITAL MANAGEMENT AGREEMENT
This Seed Capital Management Agreement (the “ Agreement ”) is made and entered into as of this 8th day of October, 2014, by and
among MILLPENCIL LIMITED, a company limited by shares organized under the laws of England and Wales and located at 5th Floor,
Millennium Bridge House, 2 Lambeth Hill, London EC4V 4GG, United Kingdom (together with its successors and permitted assigns, “
Millpencil ”), MILLPENCIL (US) LP, a Delaware limited partnership (together with its successors and permitted assigns, “ MPL ”), with a
registered office address of 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, OLD MUTUAL (US) HOLDINGS INC., a
Delaware corporation (together with its successors, “ OM(US)H ”), located at 200 Clarendon Street, 53rd Floor, Boston, MA 02116, OLD
MUTUAL PLC, a company limited by shares organized under the laws of England and Wales and located at 5th Floor, Millennium Bridge
House, 2 Lambeth Hill, London EC4V 4GG, United Kingdom (together with its successors and permitted assigns, “ OM plc ”) and MPL (UK)
Limited, a company limited by shares organized under the laws of England and Wales and located at Millennium Bridge House, 2 Lambeth
Hill, London EC4V 4GG, United Kingdom (together with its successors and permitted assigns, “ MPLUK2 ”).
W I T N E S S E T H:
WHEREAS, prior to the date hereof, OM(US)H, Millpencil, MPL and MPLUK2 have been indirect, wholly-owned subsidiaries of
OM plc;
WHEREAS, as a result of the contemplated initial public offering (“ IPO ”) of securities of OM Asset Management plc, a company
limited by shares organized under the laws of England and Wales (“ OMAM ”), OM(US)H will cease to be wholly owned, indirectly (but will
remain majority owned, indirectly) by OM plc;
WHEREAS, OM plc has funded the Seed Capital Investments (as hereinafter defined);
WHEREAS, Millpencil, MPL, MPLUK2 and OM plc are desirous of having OM(US)H continue to manage, through its Affiliates, the
Seed Capital Investments after the completion of the IPO and through January 15, 2018 upon the terms and conditions hereinafter set forth (the
“ Services ”); and
WHEREAS, OM(US)H is amenable to managing the Seed Capital Investments, through its Affiliates, through such date upon the
terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the agreement and obligations set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:
Section 1.
Definitions .
(a) Unless the content otherwise requires, the terms defined in this Section 1(a) shall, for the purpose of this Agreement, have the
meaning herein specified.
“ Affiliate ” means any corporation, limited liability company, partnership, association, business, trust, joint venture, business entity or
other entity of any kind or nature, of which more than twenty percent (20%) of either the equity interests or the voting control is, directly or
indirectly through Subsidiaries or otherwise, beneficially owned by OMAM, or of which OMAM or any Subsidiary serves as the general
partner (in the case of a limited partnership) or the manager or managing member (in the case of a limited liability company).
“ Agreement ” means this Seed Capital Management Agreement, including all Schedules hereto, as amended, supplemented or
restated from time to time.
“ Applicable Law ” means any federal, state, regional, county, local, provincial or foreign law, statute, ordinance, code, treaty, rule,
regulation, administrative interpretation, order, decree, writ, injunction, directive, judgment, policy, guideline or other requirement of any
Governmental Authority applicable to the Person in question.
“ Budget ” means, with respect to each year, a budget in form and substance approved by OM plc, including the anticipated dollar
amount of Seed Capital Investments to be made or maintained in such year in each asset class including (i) U.S. and EAFE (i.e., Europe,
Australasia and the Far East) equities; (ii) real estate; (iii) emerging market equities; (iv) high-yield fixed income; and (v) investment grade
fixed income.
“ Business Day ” means any day other than a Saturday, Sunday or holiday on which banking institutions in Boston, Massachusetts or
London, England are required to be closed.
“ End Date ” means January 15, 2018 unless on or before such date OM plc and OM(US)H have entered into a definitive agreement
with respect to the purchase of all of the equity of MPLUK2, in which event the End Date shall be the date of the closing of such transaction or
the Business Day following the date of the termination of the definitive agreement with respect to such transaction unless OM plc shall have
requested an extension of this Agreement pursuant to Section 5, in which case this Agreement shall be deemed to be so extended.
“ Fund ” means any pooled investment vehicle for which any Affiliate of OM(US)H, directly or indirectly, provides investment
advisory or sub-advisory services, or serves as the general partner, managing member or in any similar capacity (including any master or feeder
fund, parallel fund or other alternative investment vehicle or third party co-investment vehicle).
“ Governmental Authority ” means any federal, state, county, regional, local, provincial or foreign government or political subdivision
thereof, or any agency, division, district, department, commission, regulatory or administrative body or instrumentality of any such government
or political subdivision, or any self-regulatory organization, and any securities exchange, or other non-governmental regulating authority (to the
extent that the rules, regulations or orders of such authority have the force of law), or any arbitrator, tribunal or court of competent jurisdiction.
“ Interim Period ” means the period commencing on the date of this Agreement and ending on the End Date.
“ IPO ” has the meaning set forth in the recitals to this Agreement.
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“ LCIA Court ” has the meaning set forth in Section 10(g).
“ Millpencil ” has the meaning set forth in the preamble to this Agreement.
“ Minority Period ” means the period beginning on the date on which OM plc ceases to be the beneficial owner (as defined in
Rule 16a-1 under the Securities Exchange Act of 1934, as amended), directly or indirectly, of at least 50.1% of the outstanding ordinary shares
of OMAM.
“ MPL ” has the meaning set forth in the preamble to this Agreement.
“ MPLUK2 ” has the meaning set forth in the preamble to this Agreement.
“ OMAM ” has the meaning set forth in the recitals to this Agreement.
“ OM plc ” has the meaning set forth in the preamble to this Agreement.
“ OM(US)H ” has the meaning set forth in the preamble to this Agreement.
“ Person ” means any individual, partnership, limited liability company, corporation, association, sole proprietorship, business trust,
joint venture, governmental entity, business entity or other entity of any kind.
“ Seed Capital Investments ” means (i) the investments made by MPL and Millpencil (with funds provided by OM plc) in the
mandates managed by Affiliates of OM(US)H (including in separate accounts or Funds managed by Affiliates of OM(US)H as set forth in a
separate letter delivered by OM(US)H to OM plc on or prior to the date of this Agreement, together with cash reserved for such investments as
set forth in such letter; (ii) the investments made by Millpencil, MPL and MPLUK2 with the proceeds of redemptions or withdrawals of the
investments set forth in a separate letter delivered by OM(US)H to OM plc on or prior to the date of this Agreement into existing or new
mandates managed by Affiliates of OM(US)H (including separate accounts or Funds managed by Affiliates of OM(US)H) in accordance with
the terms of this Agreement, together with the proceeds of redemptions or withdrawals of such reinvestments; and (iii) interest, dividends or
distributions from the investments described in items (i) and (ii), in each case in accordance with a Budget approved in accordance with
Section 4. For the avoidance of doubt, Seed Capital Investments may not include co-investment capital required to satisfy a capital
requirement for the launch of a new Fund.
“ Services ” has the meaning set forth in the recitals to this Agreement.
“ Subsidiary ” means, with respect to a Person, any corporation, limited liability company, partnership, association, business, trust,
joint venture, business entity or other entity of any kind or nature, of which more than fifty percent (50%) of either the equity interests or the
voting control is, directly or indirectly through Subsidiaries or otherwise, beneficially owned by such Person, or of which such Person or any
Subsidiary serves as the general partner (in the case of a limited partnership) or the manager or managing member (in the case of a limited
liability company).
“ Transfer ” has the meaning set forth in Section 3.
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(b) The headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. 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. The phrase “date of this Agreement” shall mean October
8, 2014. References to Sections and Schedules are to Sections and Schedules of this Agreement as such Sections or Schedules may be or are
amended from time to time in accordance with the terms and provisions of this Agreement, unless otherwise expressly provided in this
Agreement. Any capitalized terms used in any Schedule but not otherwise defined therein shall have the respective meanings set forth in this
Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term shall be deemed to include the
singular. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the antecedent may
require. 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. If, pursuant to this Agreement,
any Person is required to take an action on a date that is not a Business Day, the date of such required action shall be the next following
Business Day. It is the intention of the parties that every covenant, term and provision of this Agreement shall be construed simply according
to its fair meaning and not strictly for or against any party, it being understood and agreed that the parties to this Agreement are sophisticated
and have had adequate opportunity and means to retain counsel to represent their respective interests and to otherwise negotiate the terms and
provisions of this Agreement. Accordingly, the parties hereby waive, to the fullest extent permitted by Applicable Law, the benefit of any
Applicable Law that would require that in cases of uncertainty, the language of a contract should be strictly construed against, or most strongly
construed against, the party who drafted such language. All references in this Agreement to amounts of money or amounts to be paid by any
Person to any other Person shall mean such amounts in United States dollars.
Section 2.
Management of Seed Capital Investments .
(a) Subject to the terms and conditions of this Agreement, Millpencil, MPL and MPLUK2 hereby appoint OM(US)H as their agent
and attorney-in-fact with respect to the management, through its Affiliates, of the Seed Capital Investments during the Interim Period. During
the Interim Period, OM(US)H will have the authority, on behalf of and in the name of Millpencil, MPL and MPLUK2, to redeem or withdraw
some or all of the Seed Capital Investments and reinvest the proceeds thereof (but not more than the proceeds thereof) in new Seed Capital
Investments selected by OM(US)H, subject to the approval rights of OM plc under this Agreement and subject to the requirement that the
proceeds from the redemption or withdrawal of Seed Capital Investments shall be invested exclusively in Seed Capital Investments that are
securities that can be sold or disposed of in the ordinary course of business on any Business Day on a securities exchange or in the
over-the-counter market. In furtherance, and not in limitation of the foregoing, OM(US)H shall have the authority to hold, own, purchase or
otherwise acquire or Transfer or otherwise dispose of, the Seed Capital Investments in accordance with the terms of this Agreement; provided ,
however , that nothing contained herein shall (i) require Millpencil, MPL or MPLUK2 to make additional contributions for purposes of Seed
Capital Investments other than the reinvestment of proceeds from the redemption or withdrawal of Seed Capital Investments as provided above
and the reinvestment of interest, dividends and distributions from Seed Capital Investments; or (ii) permit OM(US)H or any of its
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Affiliates to borrow against, pledge, hypothecate or grant a security interest in a Seed Capital Investment without the prior written consent of
OM plc.
(b) Except as provided in this Section 2 with respect to reinvestment of the proceeds of withdrawals or redemptions of Seed Capital
Investments and the reinvestment of interest, dividends and distributions from Seed Capital Investments and as provided in Section 3 with
respect to the Transfer of Seed Capital Investments, prior to the End Date, neither Millpencil, MPL nor MPLUK2 shall withdraw or redeem
any Seed Capital Investment except as otherwise provided in a separate letter delivered by OM(US)H to OM plc on or prior to the date of this
Agreement. Millpencil, MPL and MPLUK2 shall take all steps reasonably requested by OM(US)H to effectuate the purposes of this Section 2,
including executing documents reasonably requested by OM(US)H in connection with making, redeeming or withdrawing Seed Capital
Investments.
(c) On or before December 31, 2014, Millpencil shall assign to MPLUK2 or its designee (i) all of the Seed Capital Investments which
have theretofore been managed by OM(US)H under this Agreement on behalf of Millpencil and, upon such transfer, MPLUK2 or its designee
shall succeed to all of Millpencil’s rights, and assume all of Millpencil’s obligations thereafter arising under Sections 2 and 3 of this Agreement
with respect to such Seed Capital Investments; and (ii) all of Millpencil’s general partnership interest in MPL (which represents 99% of the
outstanding equity of MPL), free and clear of all liens, claims and encumbrances. On or prior to January 15, 2018, OM plc shall assign to a
newly-formed Subsidiary of MPLUK2 all of its limited partnership interest in MPL (which represents 1% of the equity of MPL), free and clear
of all liens, claims and encumbrances.
(d) If there is a change in Applicable Law with respect to the treatment of the Seed Capital Investments, the parties, in good faith,
will discuss the appropriate actions, including appropriate revisions to this Agreement, that may be necessary to accommodate such change
and, if such change cannot be accommodated other than by returning the Seed Capital Investments to OM plc or holding them in the form of
cash or cash equivalents, then OM(US)H shall so return or hold such Seed Capital Investments as directed by OM plc.
(e) Notwithstanding anything contained in this Agreement to the contrary, OM(US)H may use its own assets or that of its
Subsidiaries to make seed capital investments without the approval of OM plc, subject to such other agreements or arrangements with respect
to the governance of OM(US)H to which OM(US)H is subject. In connection with the preparation of the Budget for each year during the
Interim Period, OM(US)H shall share with OM plc its current portfolio of seed capital investments and its plans for seed capital investments for
the coming year. For the avoidance of doubt, the policies and procedures adopted by the board of directors of OMAM shall apply to the
activities of OM(US)H and its Affiliates hereunder until the end of the Minority Period, and such policies and procedures as in effect at the end
of the Minority Period shall be deemed to continue to apply until the End Date.
Section 3.
Transfer of Seed Capital Investments .
During the term of this Agreement, neither MPL nor MPLUK2 may sell, assign, transfer, pledge, hypothecate, gift, exchange, option
or encumber (each, a “ Transfer ”) any of the Seed
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Capital Investments other than a Transfer between MPL and MPLUK2, a Transfer contemplated by Section 2(b) or a Transfer to OM plc or its
Subsidiaries: provided , however , that in the event of any such Transfer to OM plc or any of its Subsidiaries, OM plc shall take all necessary
action such that the Transferee is eligible to make the Seed Capital Investments and that on or before January 15, 2018, the Seed Capital
Investments are held by MPL or MPLUK2 to the extent necessary to accomplish the purpose set forth in Section 5 of this Agreement. Subject
to Section 5, on or after the End Date, MPL and MPLUK2 may withdraw or redeem any Seed Capital Investment upon 30 days’ notice to
OM(US)H (which notice may be given before the End Date).
Section 4.
Budget .
(a) Each year during the Interim Period, OM(US)H will manage the Seed Capital Investments in accordance with the Budget for such
year subject to the rights of, and limitations on, OM(US)H to change the Seed Capital Investments within each asset class, and between such
asset classes in the course of a year with the prior written approval of OM plc. The Budget for the balance of 2014 has been delivered by
OM(US)H to OM plc, and approved by OM plc, on or prior to the date of this Agreement. On or before December 15 of each year during the
Interim Period, OM(US)H shall submit to OM plc its recommended Budget with respect to the subsequent calendar year and the parties shall
meet to discuss the proposed Budget so submitted. OM(US)H and OM plc shall thereafter engage in good faith discussions with respect to the
Budget with the goal of having a final Budget agreed to no later than the last Business Day of February of the year for which the Budget
applies. No new Budget shall be effective unless it is approved by both OM(US)H and OM plc; provided, that, in the event that agreement on
a new Budget is not reached prior to the last day of February of the year for which the Budget applies, then OM plc shall determine the Budget
for such year.
(b) In preparing the Budget and implementing this Agreement, the parties shall give due regard to the following objectives regarding
the Seed Capital Investments:
(i)
growth of the Millpencil, MPL and MPLUK2 business and creation of new products and mandates;
(ii)
providing positive returns for OM plc on the Seed Capital Investments, including the reinvestment of the
proceeds of Seed Capital Investments into other Seed Capital Investments;
(iii)
the marketability and liquidity of the Seed Capital Investments, including Seed Capital Investments made with
the proceeds of other Seed Capital Investments; and
(iv)
in the Budget for the final year of the Interim Period, constructing and/or maintaining a portfolio of Seed
Capital Investments so as to facilitate its conversion to cash or cash equivalents as contemplated by Section 5.
Notwithstanding anything contained in this Section 4(b) to the contrary, the parties acknowledge that the actual return, if any, on the Seed
Capital Investments is unknown and that OM(US)H does not represent that any specific return on the Seed Capital Investments will be
achieved or that losses will not be incurred on the Seed Capital Investments.
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Section 5.
Status of Seed Capital Investments at End Date .
On or before September 30, 2017, OM(US)H and OM plc will discuss whether they intend that on January 15, 2018 (a) all of the Seed
Capital Investments held by MPL and MPLUK2 shall be in the form of cash or cash equivalents, or (b) OM(US)H (or OMAM or a Subsidiary
of OMAM) and OM plc shall have entered into a mutually agreeable definitive agreement with respect to the purchase of all of the equity of
MPLUK2. At any time after such discussions are completed and prior to January 15, 2018, or prior to the occurrence of the closing under such
definitive agreement (if any), OM(US)H shall (unless otherwise provided in such definitive agreement), at the request of OM plc, either
(i) cause all Seed Capital Investments held by MPL and MPLUK2 to be held in the form of cash or cash equivalents and such Seed Capital
Investments may be withdrawn by MPL and MPLUK2 or (ii) continue to manage all Seed Capital Investments held by MPL and MPLUK2,
subject to the other provisions of this Agreement, for such reasonable period of time as will permit the orderly sale or disposition thereof, but in
no event longer than the period requested by OM plc; provided , however , that in the event either such option is exercised, the definitive
agreement (if any) with respect to the purchase of MPLUK2 shall terminate automatically with no liability on the part of any party thereto. If,
by January 15, 2018, there is no such definitive agreement and OM plc has not made the request described above, then OM(US)H shall take the
action described in clause (ii) of the immediately preceding sentence until such time as OM plc requests that it no longer do so and that it cause
all Seed Capital Investments to be held in the form of cash or cash equivalents and withdrawn by MPL and MPLUK2.
Section 6.
Reporting Obligations of OM(US)H; Access .
(a) Within 30 days after the end of each calendar quarter and within 30 days after the End Date, OM(US)H shall provide to OM plc a
written report which sets forth the changes to the Seed Capital Investments since the end of the preceding quarter. OM(US)H shall provide such
other information with respect to the Seed Capital Investments as reasonably requested from time to time by OM plc.
(b) Representatives of OM plc shall be entitled to attend all seed capital meetings of OMAM as observers.
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Section 7. Representation and Warranties . OM(US)H hereby represents and warrants to OM plc, Millpencil, MPL and MPLUK2, that
OM(US)H and its Affiliates that manage Seed Capital Investments have all permits, licenses and authorizations required by Applicable Law to
permit them to perform the Services under this Agreement (and OM(US)H hereby covenants to maintain, and cause such Affiliates to maintain,
all such permits, licenses and authorizations throughout the term of this Agreement).
Section 8. Term and Termination . Unless otherwise agreed in writing by the parties, this Agreement will continue in effect until the End
Date; provided , however , that OM plc may terminate this Agreement at any time if OM(US)H or any Affiliate managing Seed Capital
Investments fails to maintain any material permit, license or authorization required by Applicable Law to permit it to perform its obligations
under this Agreement.
Section 9. Other Activities . Except as otherwise provided herein, in any other agreement between the parties or in policies adopted by the
OMAM board of directors, nothing contained in this Agreement shall in any way preclude OM(US)H, its Subsidiaries or any of their respective
officers, employees, agents, representatives, members, shareholders or partners from engaging in any business activities or from performing
any services for its of their own account or for the account of others, including for Persons that may be in competition with the business of
Millpencil, MPL, MPLUK2 or OM plc.
Section 10. Miscellaneous .
(a) Amendments, Modifications and Waivers . This Agreement may be amended, modified or supplemented only by written
agreement executed by the parties. Any failure of a party to comply with any obligation, covenant or agreement contained in this agreement
may be waived by the party entitled to the benefits thereof only by a written instrument duly executed by the party granting such waiver, but
such waiver or failure to insist upon strict compliance with such obligation, covenant or agreement shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure of compliance.
(b) Notices . Unless otherwise provided in this Agreement, all notices, consents and other communications provided for hereunder
shall be dated and in writing (excluding email) and shall be deemed to have been given (i) when delivered, if delivered personally, sent by
confirmed telecopy or sent by registered or certified mail, return receipt requested, postage prepaid, provided that such delivery is completed
during normal business hours of the recipient, failing which such notice shall be deemed to have been given on the next Business Day, (ii) on
the next Business Day if sent by overnight courier and delivered on such Business Day within ordinary business hours and, if not, the next
Business Day following delivery; and (iii) when received, if received during normal business hours and, if not, the next Business Day after
receipt, if delivered by means other than those specified above. Such notices shall be delivered to the address set forth below, or to such other
address as a party shall have furnished to the other party in accordance with this Section.
If to OM(US)H, to:
Old Mutual (US) Holdings Inc.
8
200 Clarendon Street , 53 rd Floor
Boston, Massachusetts 02116
Attention: General Counsel
If to Millpencil, MPL, MPLUK2 or OM plc, to:
Old Mutual plc
5 th Floor, Millennium Bridge House
2 Lambeth Hill
London EC4V 4GG, United Kingdom
Attention: Group Company Secretary
(c) Binding Effect . This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto, their
successors in interest and respective permitted assigns.
(d) Severability . In the event that any one or more of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended
that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law. To the extent that any such
provision is so held to be invalid, illegal or unenforceable, the parties shall in good faith use commercially reasonable endeavours to find and
effect an alternative means to achieve the same or substantially the same result as that contemplated by such provision.
(e) Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(f) Governing Law . This Agreement (together with any non-contractual obligations arising out of it) shall be construed and
enforced in accordance with, and the rights and duties of the parties shall be governed by, the law of England and Wales.
(g) Arbitration .
(i)
Any dispute arising out of or in connection with this Agreement, including any question regarding its
existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of
International Arbitration (“ LCIA Court ”) which are deemed to be incorporated by reference into this clause, save as modified herein:
(ii)
The seat of arbitration shall be London, England.
(iii)
There shall be three arbitrators, one nominated by the claimant and one nominated by the respondent within
15 days of respondent’s receipt of the claimant’s request for arbitration. If OM plc, Millpencil, MPL and MPLUK2 are co-claimants
or co-respondents to the arbitration, they shall be treated as one party for the purposes of the nomination of an arbitrator. If any party
has not appointed its arbitrator within the 15-day
9
period specified herein, such appointment shall be made by the LCIA Court upon the written request of a party within 15 days of such
request. The LCIA Court shall appoint the chairman within 15 days of the nomination of the other two members of the tribunal. The
hearing shall be held no later than one-hundred-and-twenty days following the appointment of the third arbitrator.
(iv)
In terms of procedure, the parties agree that:
(A)
The Request shall be treated as the Claimant(s)’ Statement of Case.
(B)
The Statement of Defense shall be sent to the Registrar within 15 days of receipt of notice of
appointment of the third arbitrator.
(C)
A case management hearing shall take place within 10 days of receipt of the Statement of Defense to
determine the procedure leading up to the hearing. The parties shall seek to agree to the procedure between them, consistent with the
provisions of this Section 10(g).
(D)
Statement of Defense.
The Statement of Reply (if any) shall be sent to the Registrar within 15 days of receipt of the
(E)
The Statement of Reply to Counterclaim (if any) shall be sent to the Registrar within 15 days of
receipt of the Statement of Reply.
(F)
The arbitral tribunal shall exercise its power to order the parties to supply copies of any documents in
their possession, custody or power that are relevant to the subject matter of the dispute taking into account the parties’ desire that the
arbitration be conducted expeditiously and cost effectively. All disclosure of documents shall be completed within 60 days of the
appointment of the third arbitrator.
(G)
The parties agree that they shall have the right to be heard orally on the merits of the dispute.
(H)
By agreeing to arbitration, the parties do not intend to deprive a court of its jurisdiction to issue a
pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award.
Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have
full authority to grant provisional remedies, to direct the parties to request that any court modify or vacate any temporary or
preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that
effect. For the purpose of any provisional relief contemplated hereunder, the parties hereby submit to the non-exclusive jurisdiction of
the English Courts. Each party unconditionally and irrevocably waives any objections which they may have now or in the future to the
jurisdiction of the English Courts including objections by reason of lack of personal jurisdiction, improper venue, or inconvenient
forum.
10
(I)
The award shall be in writing, shall state the findings of fact and conclusions of law on which it is
based, shall be final and binding and shall be the sole and exclusive remedy between the parties regarding any claims or counterclaims
presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction.
(J)
The parties will bear equally all fees, costs, disbursements and other expenses of the arbitration, and
each party shall be solely responsible for all fees, costs, disbursements and other expenses incurred in the preparation and prosecution
of their own case; provided that in the event that a party fails to comply with the orders or decision of the arbitral tribunal, then such
noncomplying Party shall be liable for all costs and expenses (including attorney fees) incurred by the other party in its effort to obtain
either an order to compel, or an enforcement of an award, from a court of competent jurisdiction.
(K)
The arbitral tribunal shall have no authority to award punitive, exemplary or multiple damages or any
other damages not measured by the prevailing parties’ actual damages.
(L)
All notices by one party to another in connection with the arbitration shall be in accordance with the
provisions of Section 10(b) hereof, except that all notices for a demand for arbitration made pursuant to this Section 10(g) must be
made by personal delivery or receipted overnight courier. This agreement to arbitrate shall be binding upon the successors and
permitted assigns of each party. This Agreement and the rights and obligations of the parties shall remain in full force and effect
pending the award in any arbitration proceeding hereunder.
(h) Confidentiality . Except to the extent necessary to compel arbitration or in connection with arbitration of any dispute under this
Agreement, or for enforcement of an arbitral award, information concerning (i) the existence of an arbitration pursuant to Section 10(g), (ii) any
documentary or other evidence given by a party or a witness in the arbitration or (iii) the arbitration award may not be disclosed by the tribunal
administrator, the arbitrators, any party or its counsel to any Person not connected with the proceeding unless required by law or by a court or
competent regulatory body, and then only to the extent of disclosing what is legally required. A party filing any document arising out of or
relating to any arbitration in court shall seek from the court confidential treatment for such document and provide notice thereof to the
non-disclosing party.
(i) Conduct During Dispute Resolution . The parties shall continue the performance of their respective obligations under this
Agreement that are not the subject of dispute during the resolution of any dispute or agreement, including during any period of arbitration,
unless and until this Agreement is terminated or expires in accordance with its terms and conditions.
(j) Contracts (Rights of Third Parties) Act . A Person who is not a party to this Agreement shall not have any rights under the
Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.
11
(k) Entire Agreement . This Agreement, including any schedules or exhibits hereto, embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter covered by this Agreement. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter. Specifically, Millpencil, MPL and OM(US)H agree that the
management agreement dated July 22, 2009, as amended on June 8, 2010 and March 14, 2011, is hereby terminated.
(l) No Assignment . Neither this Agreement nor any of the rights, interests or obligations of any party under this Agreement may be
assigned by such party without the prior written consent of the other parties, except that OM plc, Millpencil, MPL, and MPLUK2 may assign
this Agreement or their respective rights and interests under this Agreement to OM plc or any of its Subsidiaries provided that the assignor and
assignee execute and deliver such documents that may be required generally for the assignment of any separate account or Fund managed by
OM(US)H or any of its Subsidiaries.
(m) Remedies .
(i)
The parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage
would result, no adequate remedy at law would exist and damages would be difficult to determine in the event that any provision of
this Agreement is not performed in accordance with its specific terms or is otherwise breached. Therefore, in addition to, and not in
limitation of, any other remedy available to any party, and notwithstanding the provisions of Section 10(g), an aggrieved party under
this Agreement is entitled to specific performance of the terms hereof and immediate injunctive relief, without the necessity of proving
the inadequacy of money damages as a remedy. No party shall be required to obtain or furnish any bond or similar instrument in
connection with or as a condition to obtaining or seeking any such remedy. For the avoidance of doubt, nothing in this Agreement
shall diminish the availability of specific performance of the obligations under this Agreement or any other injunctive relief.
(ii)
Such remedies, and any and all other remedies provided for in this Agreement, shall be cumulative in nature
and not exclusive and shall be in addition to any other remedies whatsoever which any party may otherwise have. Each of the parties
hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure
suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the parties.
Each party hereby further agrees that in the event of any action by the other party for specific performance or injunctive relief, it will
not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such
breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
(n) Further Assurances . Each party shall, on being required to do so by any other party, perform or procure the performance of all
such acts and/or execute and/or deliver or procure the execution and/or delivery of all such documents (in each case at its own expense), as may
be required by law or as any other party may from time to time reasonably require in order to implement and give full effect to this Agreement.
12
IN WITNESS WHEREOF, the parties hereto have executed this Seed Capital Management Agreement as of the date first above
stated.
Old Mutual (US) Holdings Inc.
By: /s/ Stephen H. Belgrad
Millpencil Limited
By: /s/ Robert Coxon
Millpencil (US) LP
By Millpencil Limited, its General Partner
By: /s/ Paul Forsythe
MPL (UK) Limited
By: /s/ Robert Coxon
Old Mutual plc
By: /s/ Martin C. Murray
Exhibit 10.2
Execution Copy
OCTOBER 8, 2014
OM GROUP (UK) LIMITED
OM ASSET MANAGEMENT PLC
CO-INVESTMENT DEED
TABLE OF CONTENTS
Page
1.
DEFINITIONS
1
2.
DETERMINATION OF AFTER-TAX AMOUNTS
4
3.
PAYMENTS
6
4.
RECONCILIATION
7
5.
CONSENT AND INFORMATION RIGHTS; OTHER TERMS
7
6.
TERMINATION
8
7.
LATE PAYMENTS
8
8.
NOTICES
8
9.
ARBITRATION
9
10.
ASSIGNMENT; AMENDMENTS; WAIVERS; AND SUCCESSORS
11
11.
WITHHOLDING
12
12.
CONFIDENTIALITY
12
13.
NO JOINT VENTURE
12
14.
COUNTERPARTS
12
15.
ENTIRE DEED; NO THIRD-PARTY BENEFICIARIES
12
16.
GOVERNING LAW
13
17.
SEVERANCE
13
18.
REMEDIES
13
19.
FURTHER ASSURANCES
14
SCHEDULE 1
FORMAT OF CO-INVESTMENTS SCHEDULE
16
i
This CO-INVESTMENT DEED is made on October 8, 2014
BETWEEN:
(1)
OM GROUP (UK) LIMITED a company incorporated and registered in England and Wales with company number 3591572
whose registered office is at 5th Floor, Millennium Bridge House, 2 Lambeth Hill, London EC4V 4GG (together with its successors
and permitted assigns, “ OMGUK ”); and
(2)
OM ASSET MANAGEMENT PLC a company incorporated and registered in England and Wales with company number
09062478 whose registered office is at 5th Floor, Millennium Bridge House, 2 Lambeth Hill, London EC4V 4GG (together with its
successors, “ OMAM ”).
WHEREAS
(A)
As of the date of this Deed, OMGUK beneficially owns all of the issued share capital of OMAM. Each of OMGUK and OMAM
is a party to the Shareholder Agreement.
(B)
On June 30, 2014, OMAM filed the Registration Statement pursuant to which (as amended) OMGUK will offer for sale to the
public a certain number of its ordinary shares of OMAM.
(C)
Immediately following the closing of the IPO, the OMAM Subsidiaries will own the Pre-IPO Co-Investments and will expect to
receive amounts in respect of the Pre-IPO Co-Investments.
(D)
In anticipation of the IPO, and pursuant to the Shareholder Agreement, the parties will enter into this Deed in order to establish
arrangements whereby, subject to completion of the IPO, OMGUK would be entitled to receive cash payments from OMAM in
respect of amounts realised by the OMAM Subsidiaries in respect of the Pre-IPO Co-Investments.
IT IS AGREED as follows:
1.
1.1
DEFINITIONS
Defined terms used in this Deed shall have the same meanings as provided in the DTA, save that the following terms set forth in
this clause 1 shall have the following meanings:
“ After-Tax Amounts ” means, as of the end of a Subject Taxable Year with respect to OMAM or any OMAM Subsidiary, (i) the
Co-Investment Amounts in respect of such Subject Taxable Year, plus or minus (ii) the received Co-Investment Tax Liability with
respect to such Subject Taxable Year(1).
“ Amended Co-Investments Schedule ” is defined in clause 2.3.
“ Co-Investment Adjustment Amount ” is defined in clause 3.4.
“ Co-Investment Amounts ” means all amounts that have been received by OMAM or the OMAM Subsidiaries from or in respect of
the Pre-IPO Co-Investments in a Subject Taxable Year, in cash or other property (provided that if property other than cash is received,
the
(1) For the purposes of calculating the amount of any After-Tax Amounts, the amount of tax chargeable on any distribution will take account
of any foreign tax credits and other tax assets in relation to the Pre-IPO Co-Investments, including any tax losses realized in respect of the
Pre-IPO Co-Investments.
amount of such property for these purposes shall be its market value on the date of receipt by OMAM or the relevant OMAM
Subsidiary), in respect of all Post-IPO Tax Periods, including (without limitation) any distributions, disposal (including redemption)
proceeds and carried interest payments from or in respect of the Pre-IPO Co-Investments, but provided that the Co-Investment
Amounts shall not include any amounts paid to OMAM or any of the OMAM Subsidiaries as management, performance or incentive
fees in their capacity as manager of any Pre-IPO Co-Investments.
“ Co-Investment Tax Liability ” in respect of any Subject Taxable Year means the net income or net loss for a Subject Taxable Year
in respect of the Co-Investment Amounts received during such Subject Taxable Year, after taking into account the income, profits,
gains, losses and any Relief with respect to such Co-Investment Amounts, multiplied by the Tax Rate applicable in such Subject
Taxable Year. For these purposes, a Tax liability shall be a negative number and a Tax benefit shall be a positive number.
“ Co-Investments Schedule ” is defined in clause 2.1.
“ Deed ” means this co-investment deed.
“ DTA ” means the deferred tax asset deed entered into on or about the date hereof between OMAM and OMGUK.
“ Expert ” has the meaning set forth in clause 4.1.
“ OMAM Subsidiaries ” collectively means OMAM US, Inc. and its Subsidiaries (including OMUSH), and individually means any
of OMAM US, Inc. or any of the Subsidiaries of OMAM US, Inc.
“ OMAM US, Inc. ” means OMAM US, Inc., a Delaware corporation, which is a direct, wholly-owned subsidiary of OMAM.
“ OM plc ” means Old Mutual plc, a company incorporated and registered in England and Wales with company number 3591559.
“ Pre-IPO Co-Investments ” means the limited partnership interests and limited liability company interests owned by OMAM and
the OMAM Subsidiaries prior to completion of the IPO, as set forth in a separate letter delivered by OMAM to OMGUK on or prior to
the date of this Deed.
“ Quarterly Estimated After-Tax Amount ” means A multiplied by B
where:
A
B
means all amounts that have been received by OMAM or the OMAM Subsidiaries from or in respect of the Pre-IPO
Co-Investments, in cash or other property (provided that if property other than cash is received, the amount of such property
for these purposes shall be its market value on the date of receipt by OMAM or the relevant OMAM Subsidiary), including
(without limitation) any distributions, disposal (including redemption) proceeds and performance or incentive fees (including,
without limitation, carried interest) from or in respect of the Pre-IPO Co-Investments, during the three month period ending
on the last day of the month preceding the relevant payment date; and
is 80%.
2
“ Reconciliation Dispute ” has the meaning set forth in clause 4.1.
“ Relief ” means any allowance, credit, deduction, exemption, loss, asset, attribute or set-off in respect of Tax or relevant to the
computation of any income, profits or gains for the purposes of any Tax, or any repayment or saving of Tax (including any repayment,
supplement or interest in respect of Tax).
“ Schedule ” has the meaning set forth in clause 2.5.
“ Subsidiaries ” means, with respect to a Person, any corporation, limited liability company, partnership, association, business, trust,
joint venture, business entity or other entity of any kind or nature, of which more than fifty percent (50%) of either the equity interests
or the voting control is, directly or indirectly through Subsidiaries or otherwise, beneficially owned by such Person, or of which such
Person, or of which such Person or any Subsidiary serves as the general partner (in the case of a limited partnership) or the manager or
managing member (in the case of a limited liability company); provided that (i) no Fund or any Subsidiary of a Fund shall be a
Subsidiary for the purposes of this Deed; (ii) the Company and its Subsidiaries will not be deemed to be Subsidiaries of OM plc or
OMGUK, and OMGUK and OM plc and their affiliates (other than the Company and its Subsidiaries) will not be deemed to be
Subsidiaries of the Company; and (iii) for the purposes of this definition, notwithstanding anything to the contrary contained herein,
each of Heitman LLC and Investment Counselors of Maryland, LLC shall be considered “Subsidiaries” of the Company.
“ Tax Rate ” means the highest effective marginal combined federal, state, local or foreign tax rate in effect in a particular Subject
Taxable Year, applicable to the particular income or gain attributable to the Co-Investment Amounts (taking into account (i) the
deductibility of state and local income taxes for U.S. federal income tax purposes, and (ii) the deductibility of local income taxes for
state tax purposes).
“ True-Up Payment ” is defined in clause 3.3.
1.2
In this Deed (except where the context otherwise requires):
(a)
any reference to a clause is to the relevant clause of this Deed and any reference to a sub-clause is to the relevant
sub-clause of the clause in which it appears;
(b)
the table of contents and clause, schedule and paragraph headings are included for convenience only and shall not affect
the interpretation of this Deed;
(c)
use of the singular includes the plural and vice versa;
(d)
use of any gender includes the other genders;
(e)
any reference to “Persons” includes natural persons, firms, partnerships, companies, corporations, associations,
organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having
separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
(f)
a reference to a “party” is a reference to a party to this Deed and, subject to clause 10, a reference to a “party”
includes a reference to that party’s successors in title and that party’s permitted transferees (if any);
(g)
if a period of time is specified and it dates from a given day or the day of an act or event, it shall be calculated
exclusive of that day;
3
(h)
if a party must do something on a given day, they must do it by 5:00pm on that day (unless this Deed expressly states
otherwise). If they do the thing after 5.00pm on a day they are treated as not having done it until the next day. A reference
to a time of day is a reference to London time;
a reference to “writing” does not include email;
(i)
(j)
a reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders,
regulations, instruments or other subordinate legislation made under the relevant statute;
(k)
any reference to a statute, statutory provision, subordinate legislation, code or guideline (“legislation”) is a reference to
such legislation as amended and in force from time to time and to any legislation which re-enacts, rewrites or consolidates
(with or without modification) any such legislation ;
(l)
a reference to a governmental authority includes any successor to that governmental authority;
(m)
any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal
status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to
include a reference to what most nearly approximates in that jurisdiction to the English legal term;
(n)
the ejusdem generis rule shall not apply and accordingly general words introduced by the word “other” or any similar
word, or followed by the words “including”, “includes”, “include”, “in particular” or any similar words, shall not be given a
restricted meaning because they are preceded or followed by more specific words;
(o)
any reference to another document or any provisions of that document shall be construed as a reference to it as it is in
force for the time being and as amended in accordance with the terms of the document or, as the case may be, with the
agreement of the relevant parties or the consent of a specified party; and
(p)
it is the intention of the parties that every covenant, term and provision of this Deed shall be construed simply
according to its fair meaning and not strictly for or against any party, it being understood and agreed that the parties to this
Deed are sophisticated and have had adequate opportunity and means to retain counsel to represent their respective interests
and to otherwise negotiate the terms and provisions of this Deed. Accordingly, the parties hereby waive, to the fullest extent
permitted by applicable law, the benefit of any applicable law that would require that in cases of uncertainty, the language of
a contract should be strictly construed against, or most strongly construed against, the party who drafted such language.
2.
DETERMINATION OF AFTER-TAX AMOUNTS
2.1
Subject to clause 2.2, on each Schedule Delivery Date, OMAM shall provide to OMGUK:
a schedule (a “ Co-Investments Schedule ”) in the format set out in Schedule 1 showing in reasonable detail:
(a)
(i)
the calculation of the After-Tax Amounts for each OMAM Subsidiary for each relevant Subject Taxable
Year;
4
(b)
2.2
(ii)
the amounts previously paid in respect of the relevant Subject Taxable Year pursuant to clause 3.2; and
(iii)
where relevant, any Co-Investment Adjustment Amount; and
all supporting information (including working papers and valuation reports) reasonably necessary to support the
calculation of the amounts set forth on the Co-Investments Schedule.
In calculating the After-Tax Amounts in respect of the Straddle Period:
(a)
the relevant Subject Taxable Year shall on a notional basis be split into two periods, one beginning before, and ending
immediately on (and including) the closing date of the IPO and the second beginning on the day immediately following the
closing date of the IPO;
(b)
the After-Tax Amounts in respect of the relevant Subject Taxable Year will be allocated between the portion of the
Straddle Period ending on and including the closing date of the IPO and the portion beginning on the day immediately
following the closing date of the IPO on the basis of the number of days in each period, with the After-Tax Amounts
attributable to the latter period being included for the purposes of clause 2.1(a)(i) above; and
(c)
the relevant Co-Investments Schedule shall include adequate details of any allocation process referred to in
clause 2.2(b) above.
2.3
A Co-Investments Schedule provided in accordance with clause 2.1 shall be amended from time to time by OMAM:
(a)
in connection with a Determination affecting such Schedule;
(b)
to correct inaccuracies in the Schedule;
(c)
to comply with the Expert’s determination in connection with a Reconciliation Dispute or any award under clause 9.2;
or
(d)
to reflect a change (relative to the amounts in the original Co-Investments Schedule) in the After-Tax Amounts for a
Subject Taxable Year attributable to an amendment to a Tax Return filed for a relevant Subject Taxable Year (such amended
Co-Investments Schedule, an “ Amended Co-Investments Schedule ”).
2.4
OMAM shall also amend a Co-Investments Schedule at the request of OMGUK to reflect any of the events noted in clause 2.3
and in accordance with the procedures set forth in clauses 2.5 and 2.6.
2.5
OMAM shall provide any Amended Co-Investments Schedule to OMGUK as soon as practicable and in any event within 30
Business Days of the occurrence of an event referred to in clauses (a) to (d) of clause 2.3, and any such Amended Co-Investments
Schedule shall be subject to the approval procedures described in clause 2.6.
2.6
Whenever OMAM delivers to OMGUK a Co-Investments Schedule or an Amended Co-Investments Schedule (for the purposes
of this clause 2.6, a “ Schedule ”) pursuant to this Deed, OMAM shall also:
5
(a)
deliver to OMGUK schedules, valuation reports, if any, and working papers providing reasonable detail regarding the
preparation of the Schedule and an Advisory Firm report in form and substance reasonably satisfactory to OMGUK, if
requested by OMGUK, related to such Schedule (the cost and expense of which shall be borne equally by OMGUK and
OMAM); and
(b)
allow OMGUK reasonable access to the appropriate representatives at each relevant OMAM Subsidiary and at the
Advisory Firm in connection with a review of such Schedule. OMGUK will have 15 Business Days after receiving the
relevant Schedule to provide OMAM with a notice of objection in relation to such Schedule made in good faith. If the parties,
for any reason, are unable to successfully resolve the issues raised in any notice within 30 Business Days of receipt by
OMAM of such notice then the Reconciliation Procedures shall be applied.
3.
PAYMENTS
3.1
Subject to clauses 3.2 and 3.3, OMAM shall for no consideration annually pay to OMGUK cash amounts equal to the After-Tax
Amounts in respect of each Subject Taxable Year as calculated under this Deed. The After-Tax Amounts shall be identified in a
Co-Investments Schedule or Amended Co-Investments Schedule within 10 Business Days of the date upon which the relevant
Co-Investments Schedule or Amended Co-Investments Schedule (as applicable) becomes final as regards the After-Tax Amounts in
question in accordance with clauses 2.6 and 4.
3.2
OMAM will pay to OMGUK cash amounts equal to the Quarterly Estimated After-Tax Amounts, as installments of the
anticipated After-Tax Amounts in respect of each relevant Subject Taxable Year, on 15 March, 15 June, 15 September and 15
December in that Subject Taxable Year. The first such payment shall be made on the later of 15 December 2014 and 30 calendar days
following the closing of the IPO.
3.3
To the extent the payment required under clause 3.1 has not yet been satisfied in respect of any relevant Subject Taxable Year by
payments made under clause 3.2, as of November 30, 2015, and each November 30 thereafter, OMAM, utilizing such information as it
reasonably possesses as of such date (including the amounts set forth on the Tax Return for the immediately preceding Subject
Taxable Year, if such Tax Return has been filed or substantially prepared as of such date), shall make a payment to OMGUK equal to
the excess of the After-Tax Amounts in respect of the immediately preceding Subject Taxable Year over the aggregate of the
payments previously made under clause 3.2 in respect of such Subject Taxable Year (the “ True-Up Payment ”). Any such True-Up
Payment shall be treated as reducing OMAM’s liability to make payment to OMGUK under clause 3.1 above to the extent that such
payment relates to the After-Tax Amounts identified in the relevant Co-Investments Schedule or Amended Co-Investments Schedule.
3.4
Subject to clauses 3.5 and 3.6, if:
(a)
a Co-Investments Schedule indicates that the cumulative payments made pursuant to clause 3.2 and True-Up Payments
made pursuant to clause 3.3 (if any) in relation to a relevant Subject Taxable Year exceeds (or are less than) the After-Tax
Amounts in relation to that Subject Taxable Year; or
(b)
an Amended Co-Investments Schedule indicates that any amounts paid to OMGUK pursuant to clause 3.1 above in
respect of a Subject Taxable Year were in excess of (or were less than) the After-Tax Amounts for the relevant Subject
Taxable Year,
6
the amount of the difference (the “ Co-Investment Adjustment Amount ”) shall be itemised in the relevant Co-Investments Schedule
or Amended Co-Investments Schedule and set off against, or reduce or increase, any future payments that would otherwise be due to
be paid by OMAM to OMGUK under this Deed until the Co-Investment Adjustment Amount has been exhausted through set-off or
application in this manner.
3.5
If any Relief arises to OMAM or any of the OMAM Subsidiaries in respect of a Pre-IPO Co-Investment which has not been
taken into account in calculating the After-Tax Amounts for any Taxable Year, but which has been used by OMAM or any of the
OMAM Subsidiaries to reduce any liability to Tax in respect of a Taxable Year, OMAM shall make a cash payment to OMGUK in an
amount equal to the amount of the Tax saved by such Relief by no later than 30 November in the year following that Taxable Year.
3.6
Each payment made pursuant to this Deed shall be made by wire transfer of immediately available funds to a bank account of
OMGUK or OMAM (as applicable) previously designated by the relevant party.
4.
RECONCILIATION
4.1
If OMAM and OMGUK are unable to resolve a disagreement with respect to the matters governed by clause 2.6 within the
relevant period designated in this Deed (such disagreement, a “ Reconciliation Dispute ”), the Reconciliation Dispute shall be
submitted for determination to an expert (the “ Expert ”) in the particular area of disagreement mutually acceptable to both
parties. The Expert shall be, or shall be a partner in, a major United States accounting firm or a law firm and the Expert shall not,
and/or the firm that employs the Expert shall not, have any material relationship with either OMAM or OMGUK or other actual or
potential conflict of interest.
4.2
If the parties are unable to agree on an Expert within 15 Business 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 within 15 Business Days or as soon thereafter as is reasonably practicable, in each case after the matter has
been submitted to the Expert for resolution.
4.3
If the reconciliation provisions contemplated by this clause 4 are utilized, the fees of the Expert shall be paid in proportion to the
manner in which the Reconciliation Dispute is resolved, such that, for example, if the entire dispute is resolved in favor of OMAM,
OMGUK shall pay all of the fees of the Expert, or if the items in dispute are resolved 50% in favor of OMAM and 50% in favor of
OMGUK, each of OMAM and OMGUK shall pay 50% of the fees of the Expert. The Expert shall finally determine any
Reconciliation Dispute and the determinations of the Expert pursuant to this clause 4 shall be binding on OMAM and OMGUK and
may be entered and enforced in any court having jurisdiction.
5.
5.1
CONSENT AND INFORMATION RIGHTS; OTHER TERMS
OMAM will, and will procure that each of the OMAM Subsidiaries will, on an ongoing basis, provide OMGUK with all
information that OMAM reasonably believes may be relevant to the Pre-IPO Co-Investments or the determination of the
Co-Investment Amounts or After-Tax Amounts, as well as any other information in relation to the Pre-IPO Co-Investments as may
reasonably be requested by OMGUK.
7
5.2
Notwithstanding the provisions of clause 5.1, OMAM will, and will procure that each of the OMAM Subsidiaries will, provide
OMGUK, upon its reasonable request, with any information available to it in connection with any proposed disposal of any Pre-IPO
Co-Investments.
5.3
The parties agree that the prior written consent of OMGUK shall be required prior to the transfer, assignment, pledge or other
disposal of any Pre-IPO Co-Investments by any of the OMAM Subsidiaries.
5.4
For the avoidance of doubt, the policies and procedures adopted by the board of directors of OMAM shall apply to the activities
of OMAM and the OMAM Subsidiaries hereunder until the Majority Holder Date (as defined in the Shareholder Agreement).
6.
TERMINATION
If the IPO has not closed before 30 November 2014, the provisions of this Deed shall terminate on that date and the parties shall have
no further obligations or rights under this Deed from (and including) such date, save that those clauses, the survival of which is
necessary for the interpretation or enforcement of this Deed, shall continue to have effect.
7.
LATE PAYMENTS
The amount of all or any portion of any payment not made to OMGUK or OMAM when due under the terms of this Deed shall be
payable together with any interest thereon, computed at the Default Rate and commencing from the date on which such payment was
due and payable.
8.
8.1
NOTICES
Any notice, request, consent and other communication given or made to any party under this Deed shall be in writing and may be
served by hand delivering it or sending it by prepaid first class recorded delivery (including without limitation special delivery) or first
class registered post or fax to the address and for the attention of the relevant party set out in clause 8.2 (or as otherwise notified by
that party under this clause). Any notice shall be deemed to have been received:
(a)
if hand delivered or sent by prepaid first class recorded or registered post or prepaid international recorded airmail, at
the time of delivery; and
(b)
if sent by first class post (other than by prepaid recorded or registered post), two days from the date of posting; and
(c)
in the case of fax, at the time of transmission,
provided that if deemed receipt occurs before 9.00a.m. on a Business Day the notice shall be deemed to have been received at
9.00a.m. on that day, and if deemed receipt occurs after 5.00p.m. on a Business Day, or on any day which is not a Business Day, the
notice shall be deemed to have been received at 9.00a.m. on the next Business Day.
8.2
The addresses and fax numbers of the parties for the purposes of clause 8.1 are:
If to OMAM, to:
c/o Old Mutual (US) Holdings Inc.
200 Clarendon Street, 53rd Floor
8
Boston, MA 02116
Attention: Steve Belgrad, CFO
Phone No: 617-369-7371
Email: [email protected]
with a copy to:
Bingham McCutchen LLP
399 Park Avenue
New York, New York 10022
(T) (212) 705-7000
(F) (212) 752-5378
Attention: Floyd I. Wittlin, Esq.
Email: [email protected]
if to OMGUK, to:
Old Mutual plc
5th Floor, Millennium Bridge House
2 Lambeth Hill
London EC4V 4GG, United Kingdom
Attention:
Phone No:
E-mail:
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Ralph Arditi
Phone No: 212-735-3860
Email: [email protected]
or such other address or fax number as may be notified in writing from time to time by the relevant party to the other party. Any
change to the place of service shall take effect five Business Days after notice of the change is received or (if later) on the date (if any)
specified in the notice as the date on which the change is to take place.
8.3
9.
Notice given under this Deed shall not be validly served if sent by email.
ARBITRATION
9.1
[Reserved]
9.2
Arbitration
Any dispute arising out of or in connection with this Deed, including any question regarding its existence, validity or termination,
shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (the “ LCIA
Court ”) which are deemed to be incorporated by reference into this clause, save as modified herein:
9
(i)
(ii)
The seat of arbitration shall be London, England.
There shall be three arbitrators, one nominated by the claimant and one nominated by the respondent within
fifteen (15) days of respondent’s receipt of the claimant’s request for arbitration. If any party has not appointed its
arbitrator within the 15-day period specified herein, such appointment shall be made by the LCIA Court upon the
written request of a party within 15 days of such request. The LCIA Court shall appoint the chairman within 15 days
of the nomination of the other two members of the tribunal. The hearing shall be held no later than
one-hundred-and-twenty days following the appointment of the third arbitrator.
(iii)
In terms of procedure, the parties agree that:
(A)
(B)
The Statement of Defence shall be sent to the Registrar within 15 days of receipt of notice of
appointment of the third arbitrator.
(C)
A case management hearing shall take place within 10 days of receipt of the Statement of Defence to
determine the procedure leading up to the hearing. The parties shall seek to agree to the procedure
between them, consistent with the provisions of this clause 9.2.
(D)
The Statement of Reply (if any) shall be sent to the Registrar within 15 days of receipt of the
Statement of Defence.
(E)
The Statement of Reply to Counterclaim (if any) shall be sent to the Registrar within 15 days of
receipt of the Statement of Reply.
(F)
The arbitral tribunal shall exercise its power to order the parties to supply copies of any documents in
their possession, custody or power that are relevant to the subject matter of the dispute taking into account
the parties’ desire that the arbitration be conducted expeditiously and cost effectively. All disclosure of
documents shall be completed within sixty (60) days of the appointment of the third arbitrator.
(G)
(iv)
The Request shall be treated as the Claimant(s)’ Statement of Case.
The parties agree that they shall have the right to be heard orally on the merits of the dispute.
By agreeing to arbitration, the parties do not intend to deprive a court of its jurisdiction to issue a pre-arbitral
injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any
award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the
arbitral tribunal shall have full authority to grant provisional remedies, to direct the parties to request that any court
modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of
any party to respect the arbitral tribunal’s orders to that effect. For the purpose of any provisional relief
contemplated hereunder, the parties hereby submit to the non-exclusive jurisdiction of the English Courts. Each
party unconditionally and irrevocably waives any objections which they may have now or in the future to the
jurisdiction of the English Courts including objections by reason of lack of personal jurisdiction, improper venue, or
inconvenient forum.
10
9.3
(v)
The award shall be in writing, shall state the findings of fact and conclusions of law on which it is based, shall
be final and binding and shall be the sole and exclusive remedy between the parties regarding any claims or
counterclaims presented to the arbitral tribunal. Judgment upon any award may be entered in any court having
jurisdiction.
(vi)
The parties will bear equally all fees, costs, disbursements and other expenses of the arbitration, and each party
shall be solely responsible for all fees, costs, disbursements and other expenses incurred in the preparation and
prosecution of their own case; provided that in the event that a party fails to comply with the orders or decision of
the arbitral tribunal, then such noncomplying party shall be liable for all costs and expenses (including attorney fees)
incurred by the other party in its effort to obtain either an order to compel, or an enforcement of an award, from a
court of competent jurisdiction.
(vii)
The arbitral tribunal shall have no authority to award punitive, exemplary or multiple damages or any other
damages not measured by the prevailing parties’ actual damages.
(viii)
All notices by one party to another in connection with the arbitration shall be in accordance with the provisions
of clause 8 hereof, except that all notices for a demand for arbitration made pursuant to this clause 9.2(viii) must be
made by personal delivery or receipted overnight courier. This agreement to arbitrate shall be binding upon the
successors and permitted assigns of each party. This Deed and the rights and obligations of the parties shall remain
in full force and effect pending the award in any arbitration proceeding hereunder.
Confidentiality
Except to the extent necessary to compel arbitration or in connection with arbitration of any dispute under this Deed, or for
enforcement of an arbitral award, information concerning (i) the existence of an arbitration pursuant to this clause 9, (ii) any
documentary or other evidence given by a Party or a witness in the arbitration, or (iii) the arbitration award, may not be disclosed by
the tribunal administrator, the arbitrators, any Party or its counsel to any Person not connected with the proceeding unless required by
law or by a court or competent regulatory body, and then only to the extent of disclosing what is legally required. A Party filing any
document arising out of or relating to any arbitration in court shall seek from the court confidential treatment for such document and
provide notice thereof to the non-disclosing Party.
9.4
Conduct during Dispute Resolution
The Parties shall continue the performance of their respective obligations under this Deed that are not the subject of dispute during the
resolution of any dispute or agreement, including during any period of arbitration, unless and until this Deed is terminated or expires
in accordance with its terms and conditions.
10.
10.1
ASSIGNMENT; AMENDMENTS; WAIVERS; AND SUCCESSORS
Neither this Agreement nor any of the rights, interests or obligations of any party under this Agreement may be assigned by such
party without the prior written consent of the other party, except that OMGUK may assign this Agreement or its rights and interests
under this Agreement to OM plc or any OMAM Subsidiary.
11
10.2
No amendment, modification, supplement or variation of this Deed (or any document entered into pursuant to or in connection
with this Deed) shall be valid unless it is in writing and signed by or on behalf of each of the parties to this Deed. For the avoidance of
doubt, no amendment, modification, supplement or variation of this Deed shall be valid if made by e-mail. Any failure of a Party to
comply with any obligation, covenant or agreement contained in this Agreement may be waived by the Party entitled to the benefits
thereof only by a written instrument duly executed by the Party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant or agreement shall not operate as a waiver of, or estoppel with respect to, any subsequent
or other failure of compliance.
10.3
All of the terms and provisions of this Deed shall be binding upon, shall inure to the benefit of and shall be enforceable by the
parties hereto and their respective successors and permitted assigns. OMAM 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 OMAM, by written
agreement, expressly to assume and agree to perform this Deed in the same manner and to the same extent that OMAM would be
required to perform if no such succession had taken place.
11.
WITHHOLDING
Either party shall be entitled to deduct and withhold from any payment payable pursuant to this Deed such amounts as that party is
required by law to deduct and withhold with respect to the making of such payment. To the extent that amounts are so withheld and
paid over to the appropriate Taxing Authority by the relevant party, such withheld amounts shall be treated for all purposes of this
Deed as having been paid to the other party.
12.
CONFIDENTIALITY
Each party undertakes hereafter it will treat all information provided to it by any other party with the same degree of care as such party
treats its own information of the same nature; provided that each party hereto may disclose to any and all persons, without limitation
of any kind, the tax treatment and tax structure of the transactions described in this Deed for the relevant party, and all materials of any
kind (including opinions or other tax analyses) that are provided to such party relating to such tax treatment and tax structure.
13.
NO JOINT VENTURE
Nothing in this Deed is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to
authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise
to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any
obligation or liability and the exercise of any right or power).
14.
COUNTERPARTS
This Deed may be executed in any number of counterparts, including electronic counterparts, and by the parties to it on separate
counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. The Deed is
not effective until each party has executed at least one counterpart.
15.
15.1
ENTIRE DEED; NO THIRD-PARTY BENEFICIARIES.
This Deed, including any Schedules hereto, constitutes the entire agreement and understanding of the parties relating to the
subject matter of this Deed. Each of the parties acknowledges and agrees that in entering into this Deed, it has not relied on any
statement,
12
representation, warranty, understanding, undertaking, promise or assurance of any person (whether party to this Deed or not) which is
not expressly set out in this Deed.
15.2
The parties acknowledge that they have been independently advised and, having regard to the circumstances and to the other
provisions of this Deed, they consider this clause 15 to be fair and reasonable.
15.3
Nothing in this Deed, express or implied, is intended to or shall confer upon any person other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies hereunder. A person who is not a party to this Deed shall have no
right under the Contracts (Rights of Third parties) Act 1999 to rely upon or enforce any term of this Deed. This clause 15 shall not
affect any right or remedy of a third party which exists or is available apart from that Act.
16.
GOVERNING LAW
The validity, construction and performance of this Deed (and any claim, dispute or matter arising under or in connection with it or its
enforceability) and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in
accordance with the law of England and Wales.
17.
SEVERANCE
17.1
If any provision of this Deed shall be found to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Deed which shall remain in full force and effect.
17.2
If any provision of this Deed is so found to be invalid, illegal or unenforceable but would be valid, legal or enforceable if some
part of the provision were deleted, the provision in question shall apply with such deletion(s) as may be necessary to make it valid.
17.3
The parties shall, in the circumstances referred to in clause 17.1, and if clause 17.2 does not apply, in good faith use commercially
reasonable endeavours to find and effect an alternative means to achieve the same or substantially the same result as that contemplated
by the invalid, illegal or unenforceable provision.
18.
REMEDIES
18.1
The parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage would result, no
adequate remedy at law would exist and damages would be difficult to determine in the event that any provision of this Deed is not
performed in accordance with its specific terms or is otherwise breached. Therefore, in addition to, and not in limitation of, any other
remedy available to any party, and notwithstanding the provisions of clause 8.1, an aggrieved Party under this Deed is entitled to
specific performance of the terms hereof and immediate injunctive relief, without the necessity of proving the inadequacy of money
damages as a remedy. Neither party shall be required to obtain or furnish any bond or similar instrument in connection with or as a
condition to obtaining or seeking any such remedy. For the avoidance of doubt, nothing in this Deed shall diminish the availability of
specific performance of the obligations under this Deed or any other injunctive relief.
18.2
Such remedies, and any and all other remedies provided for in this Deed, shall be cumulative in nature and not exclusive and shall
be in addition to any other remedies whatsoever which any party may otherwise have. Each of the parties hereby acknowledges and
agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute
performance, and that injunctive relief and/or specific performance
13
will not cause an undue hardship to the parties. Each party hereby further agrees that in the event of any action by the other party for
specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific
performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are
adequate or any other grounds.
19.
FURTHER ASSURANCES
Each party shall, on being required to do so by any other party, perform or procure the performance of all such acts and/or execute
and/or deliver or procure the execution and/or delivery of all such documents (in each case at its own expense), as may be required by
law or as any other party may from time to time reasonably require in order to implement and give full effect to this Deed.
[Signature page follows.]
14
IN WITNESS WHEREOF, this document has been executed as a Deed and is delivered and takes effect on the date first written
above.
EXECUTED AND DELIVERED
AS A DEED by
OM ASSET MANAGEMENT PLC
acting by its authorised signatory
)
)
)
)
In the presence of:
)
Signature of witness:
/s/ Vance Chapman
Name of witness (print):
Vance Chapman
Witness Address:
41 Lothbury
/s/ Julian Roberts
(authorised signatory)
London EC2R 7HF
EXECUTED AND DELIVERED
AS A DEED by
OM GROUP (UK) LIMITED
acting by its authorised signatory
)
)
)
)
In the presence of:
)
/s/ Martin C. Murray
Signature of witness:
/s/ Sophie Donnithorne-Tait
Name of witness (print):
Sophie Donnithorne-Tait
Witness Address:
41 Lothbury
London EC2R 7HF
(authorised signatory)
Exhibit 10.3
Execution Copy
INTELLECTUAL PROPERTY LICENSE AGREEMENT
AMONG
OLD MUTUAL PLC,
OLD MUTUAL LIFE ASSURANCE COMPANY (SOUTH AFRICA) LTD.
AND
OM ASSET MANAGEMENT PLC
DATED AS OF OCTOBER 8, 2014
TABLE OF CONTENTS
Page
ARTICLE I
Section 1.1
ARTICLE II
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
ARTICLE III
Section 3.1
Section 3.2
Section 3.3
ARTICLE IV
Section 4.1
Section 4.2
Section 4.3
Section 4.4
ARTICLE V
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Section 5.5
Section 5.6
ARTICLE VI
Section 6.1
Section 6.2
Section 6.3
ARTICLE VII
Section 7.1
DEFINITIONS
Definitions
LICENSES AND OTHER RIGHTS OF PUBCO
Use of Servicemarks
Visual Identity; No Reasonable Likelihood of Confusion
Domain Names
Pubco Marks and Rebranded Marks
Social Media
OWNERSHIP OF THE SERVICEMARKS
Pubco And Its Subsidiaries Not To Jeopardize Registration
No Ownership Of Servicemarks By Pubco Or Its Subsidiaries
Acknowledgement as to Servicemarks; Cooperation
INFRINGEMENT OF SERVICEMARKS
1
1
5
5
9
10
10
10
11
11
11
11
11
Notification of Infringement
Notification of Allegations
Conduct of Proceedings by the Licensors
Assistance in Proceedings
11
11
12
12
WARRANTIES; INDEMNITIES; DISCLAIMERS
12
Representations and Warranties
Indemnification
Reservation of Rights
No Obligation To Provide Technology
Release of Information
Damages Inadequate
DISPUTE RESOLUTION
Arbitration
Confidentiality
Conduct During Dispute Resolution
TERM
Term
12
13
13
13
13
14
14
14
16
16
16
16
TABLE OF CONTENTS
(continued)
Page
Section 7.2
Section 7.3
ARTICLE VIII
Section 8.1
Section 8.3
Section 8.4
Section 8.5
Section 8.6
Section 8.7
Section 8.8
Section 8.9
Section 8.10
Section 8.11
Section 8.12
Section 8.13
Section 8.14
Section 8.15
Termination
Survival
17
17
MISCELLANEOUS
17
Notices
Contracts (Rights of Third Parties) Act
Subsidiary or Affiliate Action
Confidential Information
Interpretation; Effect
Severability
Applicable Law
Amendment, Modification and Waiver
Assignment
Counterparts
Further Assurances
No Joint Venture
Compliance with Law
Bribery Act
17
18
19
19
19
20
20
20
20
20
20
21
21
21
ii
INTELLECTUAL PROPERTY LICENSE AGREEMENT
This INTELLECTUAL PROPERTY LICENSE AGREEMENT (this “ Agreement ”), dated as of October 8, 2014 (the “ Effective
Date ”), is made and entered into by and among:
(1) Old Mutual plc, a company incorporated and registered in England and Wales, with company number 3591559 (together with its
successors and permitted assigns, “ OM plc ”), and
(2) solely for the purposes of the Servicemarks owned by it as described below, Old Mutual Life Assurance Company (South Africa)
Ltd., a limited liability company formed under the laws of South Africa (together with its successors and permitted assigns, “ OMLAC” ), on
the one hand, (OMLAC and OM plc each being a “ Licensor” and together “ Licensors ”) and
(3) OM Asset Management plc, a company incorporated and registered in England and Wales, with company number 09062478
(together with its successors and permitted assigns, “ Pubco ”), on the other hand.
RECITALS
WHEREAS, an initial public offering of Pubco (“ IPO ”), an indirect wholly-owned Subsidiary of OM plc, will take place and Pubco
will indirectly own the business of Old Mutual (US) Holdings Inc. (“ OMUSH ”) on or about the Effective Date hereof;
WHEREAS, OMLAC is an indirect, wholly-owned Subsidiary of OM plc;
WHEREAS, Pubco and its Subsidiaries (collectively, “ Licensees ”) use and desire to continue to use certain intellectual property
rights of the Licensors in connection with their respective businesses and the IPO; and
WHEREAS, the Licensors each desire to grant a license to certain intellectual property rights under the terms and conditions as set
forth in this Agreement to Licensees for use by each of them in connection with their respective businesses and the IPO.
NOW THEREFORE, in consideration of the premises and covenants set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, each of the Parties hereby agrees as follows:
ARTICLE I
DEFINITIONS
Section 1.1
Definitions . As used herein, including for purposes of the Preamble and the Recitals hereof, the following terms have
the respective meanings set forth below:
(a)
“ Affiliates ” with respect to any Person, means any other Person directly or indirectly controlling, controlled by or
under common control with, such Person. For purposes of this definition, “ control, ” (including, with correlative meanings, the terms “
controlled by ” and
1
“ under common control with ”) when used with respect to any Person, means the possession directly or indirectly of the power to direct or
cause the direction of the management or policies of such Person, whether through ownership of voting securities or partnership or other
ownership interests, by contract or otherwise.
“ Agreement ” has the meaning set forth in the Preamble hereto.
“ Applicable Law ” means any domestic or foreign statute, law (including the common law), ordinance, rule, regulation, published
regulatory policy or guideline, order, judgment, injunction, decree, award or writ of any court, tribunal or other regulatory authority, arbitrator,
governmental authority, or other Person having jurisdiction, or any consent, exemption, approval or license of any governmental authority that
applies in whole or in part to a Party and, with respect to Pubco, includes the rules of any exchange or quotation system on which the securities
of Pubco are listed or traded from time to time.
“ Business ” means the business conducted by the Licensees of providing, either directly or through one or more Affiliates, any
investment advisory, investment and Fund administration, and other related services, including, without limiting the generality of the foregoing,
(i) the management of an investment account or Fund (or portions thereof or a group of investment accounts or Funds); (ii) the giving of advice
with respect to the investment and/or reinvestment of assets or Funds (or any group of subadvisory assets or Funds); (iii) otherwise acting as an
“investment adviser” within the meaning of the U.S. Investment Advisers Act of 1940; (iv) rendering investment advice for a fee or other
compensation, directly or indirectly, within the meaning of Section 3(21)(A)(ii) of the U.S. Employee Retirement Income Security Act of 1974;
or (v) acting as a trustee, general partner, manager, or managing member of any Person that is affiliated with the provider of the services
described in items (i) through (iv).
“ Business Day ” means any day except (i) a Saturday, (ii) a Sunday, (iii) any day on which the principal office of Pubco or OM plc is
not open for business, and (iv) any other day on which commercial banks in the United Kingdom or New York, USA are authorized or
obligated by law or executive order to close.
“ Closing ” means the closing of the initial public offering of Pubco.
“ Closing Date ” means the date of the Closing.
“ Effective Date ” has the meaning set forth in the Preamble to this Agreement.
“ Entering Party ” has the meaning set forth in Section 2.2(a).
“ Existing Party ” has the meaning set forth in Section 2.2(a).
“ Fund ” means any investment company, mutual fund, business development company, partnership, fund, closed-end fund, unit
investment trust, offshore fund, common or collective fund or collective trust, hedge fund or other pooled investment vehicle, whether or not
registered under the Investment Company Act of 1940 or Securities Act of 1933 (or similar provisions of applicable law of any jurisdiction
other than the United States).
2
“ Governmental Authority ” means any domestic, foreign or supranational court, tribunal, arbitral or administrative agency or
commission or other governmental authority or instrumentality, or any industry self-regulatory authority.
“ LCIA Court ” has the meaning set forth in Section 6.1.
“ Licensees ” has the meaning set forth in the Recitals to this Agreement.
“ Licensor ” has the meaning set forth in the Preamble to this Agreement and “ Licensors ” means both of the Licensors together.
“ Losses ” means all losses, claims, damages, liabilities, obligations (including settlements, judgments, fines and penalties), costs and
expenses (including reasonable attorneys’ fees, court costs and other litigation expenses) but excluding any loss of goodwill, loss of business,
loss of revenue, loss of profits, diminution in value, lost opportunity costs, and any other indirect, incidental, special, expectation,
consequential, exemplary or punitive damages (other than such damages actually paid to third parties in connection with any action or other
claim or demand brought by an unaffiliated third party).
“ Notice ” has the meaning set forth in Section 8.1.
“ Old Mutual Domain Names ” means the Perpetual Old Mutual Domain Name and the Transitional Old Mutual Domain Names.
“ OM Logo ” has the meaning set forth in the definition of “Transitional Servicemarks.”
“ OM plc ” has the meaning set forth in the Preamble to this Agreement.
“ OMLAC ” has the meaning set forth in the Preamble to this Agreement.
“ OMUSH ” has the meaning set forth in the Recitals to this Agreement.
“ Party ” means OM plc, OMLAC and Pubco individually; and “ Parties ” means OM plc, OMLAC and Pubco, collectively.
“ Perpetual License ” has the meaning set forth in Section 2.1(a)(ii).
“ Perpetual Old Mutual Domain Name ” means the domain name omam.com, as listed in Schedule 1, which is under the control of
either of the Licensors and/or their Subsidiaries as of the Closing Date.
“ Perpetual Servicemarks ” means those trademarks, service marks, trade names, trade dress, logos, corporate names and other source
or business identifiers and any registrations, applications, renewals and extensions of, or associated with, any of the foregoing which include
the term “OMAM”, and all goodwill associated with or symbolized by any of the foregoing.
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“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, association or other business entity
and any trust, unincorporated organization or political subdivision thereof.
“ Pubco ” has the meaning set forth in the Preamble to this Agreement.
“ Rebranded Marks ” has the meaning set forth in Section 2.4.
“ Re-Direct Domain ” has the meaning set forth in Section 2.3(b).
“ Relevant Requirements ” has the meaning set forth in Section 8.15(a)(i).
“ Restylized Marks ” has the meaning set forth in Section 2.1(a)(ii)(B)(1).
“ Servicemarks ” means the Perpetual Servicemarks and the Transitional Servicemarks.
“ Subsidiary ” with respect to a Person, any corporation, limited liability company, partnership, association, business, trust, joint
venture, business entity or other entity of any kind or nature, of which more than fifty percent (50%) of either the equity interests or the voting
control is, directly or indirectly through Subsidiaries or otherwise, beneficially owned by such Person, or of which such Person or any
Subsidiary serves as the general partner (in the case of a limited partnership) or the manager or managing member (in the case of a limited
liability company); provided that (i) no Fund or any Subsidiary of a Fund shall be a Subsidiary for the purposes of this Agreement; (ii) Pubco
and its Subsidiaries will not be deemed to be Subsidiaries of OM plc or OMLAC, and OMLAC and OM plc will not be deemed to be Affiliates
or Subsidiaries of Pubco; and (iii) for purposes of this definition, unless expressly stated otherwise, each of Heitman LLC and Investment
Counselors of Maryland, LLC shall be considered “Subsidiaries” of Pubco.
“ Territory ” means world-wide. Notwithstanding anything to the contrary contained herein “Territory” includes those areas of the
world where the Servicemarks are currently in use, as well as those areas where Pubco receives consent from OM plc (which consent shall not
be unreasonably withheld) to use such Servicemarks in the future.
“ Transitional License ” has the meaning set forth in Section 2.1(a)(i).
“ Transitional Old Mutual Domain Names ” means the domain names listed in Schedule 1, which contain the terms “Old Mutual”,
“OM” and/or “OMAM” (except such Perpetual Old Mutual Domain Name which contains the term “OMAM”) under the control of either of
the Licensors and/or their Subsidiaries as of the Closing Date.
“ Transitional Servicemarks ” means those trademarks, service marks, trade names, trade dress, logos, corporate names and other
source or business identifiers and any registrations, applications, renewals and extensions of, or associated with, any of the foregoing which
include the terms “Old Mutual,” “OM” and/or the OM 3 anchor design logo:
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(the “ OM Logo ”), and all copyrights therein and all goodwill associated with or symbolized by any of the foregoing.
“ Transition Period ” means the period commencing on the Closing Date and ending six (6) months after the date on which OM plc
ceases to directly or indirectly own more than 50% of the outstanding shares of Pubco.
“ Visual Identity ” means the visible elements of a brand of a Party and its Affiliates, including its or their respective name, logo,
primary and secondary colors, form, and other visual elements that symbolize source, identity and image.
ARTICLE II
LICENSES AND OTHER RIGHTS OF PUBCO
Section 2.1
(a)
Use of Servicemarks .
Grant of Licenses .
(i)
Transitional License. Subject to the terms and conditions of this Agreement, each Licensor hereby grants to
Licensees a limited, non-exclusive, fully paid-up, royalty-free, non-transferable, non-sublicensable license, solely in the
Territory and during the Transition Period, to use such Transitional Servicemarks as are owned by each such Licensor in the
Licensees’ corporate and trade names, businesses and activities, including any advertising or promotional materials, and
including in connection with the operation of the Business and in connection with the IPO, provided, however, that the
license granted hereunder specifically excludes the right for Licensees to use the Transitional Servicemarks as the name of a
Fund or in connection with any products or services provided by a Fund (the “Transitional License”). For the avoidance of
doubt, in the event the Licensees desire to use the Transitional Servicemarks as the name of a Fund, or for any products or
services provided by a Fund sponsored, operated or managed by the Licensees, Licensees must obtain OM plc’s prior written
approval for any such use in the jurisdictions in which OM plc owns the Transitional Servicemarks, and OMLAC’s prior
written approval for any such use in the jurisdictions in which OMLAC owns the Transitional Servicemarks, and (in each
case), where such approval is given, use of the Transitional Servicemarks in relation to the name of a Fund, or for any
products or services provided by a Fund sponsored, operated or managed by the Licensees, shall be subject to the terms and
conditions of this Agreement as if the exclusion referred to under this Section 2.1(a)(i) does not apply
thereto. Notwithstanding anything to the contrary in this Section 2.1(a) or Section 2.4 below, Licensees shall have the
perpetual right to
5
use the name “OM Asset Management” as all or part of Licensees’ corporate names or trade names.
(ii)
Perpetual License.
(A)
License Grant . Subject to the terms and conditions of this Agreement, each Licensor hereby grants
to Licensees a perpetual (unless terminated pursuant to Section 7.2 below), non-exclusive, fully paid-up,
royalty-free, non-transferable, non-sublicensable license, solely in the Territory, to use such Perpetual
Servicemarks as are owned by each such Licensor in the Licensees’ corporate and trade names, businesses
and activities, including any advertising or promotional materials, (1) in connection with the operation of
the Business, (2) in connection with the IPO and (3) as a ticker symbol on the New York Stock Exchange
(the “ Perpetual License ”). For the avoidance of doubt, in the event the Licensees desire to use the
Perpetual Servicemarks as the name of a Fund, or for any products or services provided by a Fund
sponsored, operated or managed by the Licensees, Licensees must obtain OM plc’s prior written approval
for any such use in the jurisdictions in which OM plc owns the Perpetual Servicemarks, and OMLAC’s
prior written approval for any such use in the jurisdictions in which OMLAC owns the Perpetual
Servicemarks, and (in each case), where such approval is given, use of the Perpetual Servicemarks in
relation to the name of a Fund, or for any products or services provided by a Fund sponsored, operated or
managed by the Licensees shall be subject to the terms and conditions of this Agreement.
(B)
Coexistence . Prior to the end of the Transition Period, Pubco shall revise the stylization of the
Perpetual Servicemarks licensed hereunder such that they are visually distinct from the stylization, design
and logos of Licensors’ registered servicemarks (the “ Restylized Marks ”). All Restylized Marks must be
approved in writing by Licensors prior to the adoption or use by Licensees, provided, however, that such
approval by Licensors of the Restylized Marks shall not be unreasonably withheld or delayed. Licensees’
failure to comply with this Section 2.1(ii)(B)(1) shall not be deemed a material breach of this Agreement if
such failure to comply is a result of Licensors’ failure to timely approve the Restylized Marks submitted by
Pubco to Licensors for approval. Upon approval of the Restylized Marks by Licensors, Licensees’
obligations under Sections 2.1(b)(i) and 2.1(b)(ii) shall terminate.
(b)
Certain Obligations of Licensees . Notwithstanding anything to the contrary in this Section 2.1, and without limiting its
obligations under Section 8.4 hereof, Pubco will, and will procure that all other Licensees:
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(i)
use the Servicemarks only in accordance with the respective Licensor’s branding guidelines in effect as of the
Effective Date of this Agreement (as such branding guidelines may be amended by the Licensors from time to time
thereafter) and consistent with Licensee’s use prior to the Closing Date, provided that such obligation shall not apply in
respect of the Perpetual Servicemarks with effect from the end of the Transition Period although, for the avoidance of doubt,
Section 2.1(a)(ii)(B) shall apply;
(ii)
herein;
ensure that the Servicemarks, as they are displayed, are not altered in any way, except as expressly provided
(iii)
ensure that they will not take any action that could reasonably be expected to impair the value of or goodwill
associated with the Servicemarks. During the Transition Period, each of OM plc and OMLAC has the right to inspect
Licensees’ business operations (in accordance with the provisions of Section 2(d) below) to ensure compliance with the
relevant Licensor’s standards of quality;
(iv)
cease all use of the Transitional Servicemarks upon expiration of the Transition Period, provided that,
following the end of the Transition Period, Licensees will be permitted to make historical reference to their affiliation with
the Licensors, solely to the extent required under Applicable Law to describe the historical performance of Licensees’
Business or to identify that Licensees were formerly operating under the name of the relevant Transitional Servicemarks or
unless as otherwise provided herein, provided, further that (A) any such use of “Old Mutual” must be strictly as a reference to
such former affiliation, or former corporate or trade name, and not as a trademark or service mark; and (B) Licensees shall be
permitted to continue use of “OM Asset Management” as all or part of Licensees’ corporate names or trade names.
(v)
upon written request by Licensors, destroy any physical materials displaying the Transitional Servicemarks
remaining in Licensees’ possession promptly following expiration of the Transition Period, and an authorized officer of
Pubco shall certify to OM plc in writing that to the knowledge of the certifying officer, after reasonable inquiry, such
destruction has taken place;
(vi)
make clear to all third parties that Pubco or its Subsidiaries, rather than either of the Licensors or any of its
other Subsidiaries, is the party entering into or conducting any contractual relationship with such third party;
(vii)
pay to each Licensor a sum of £2.50 (the receipt and adequacy of which is hereby acknowledged by each
Licensor) as consideration for the rights granted to the Licensees under this Agreement; and
(viii)
assist the Licensors in recording or registering this Agreement in any jurisdiction where such recordation or
registration is required or recommended under the trademark law of such jurisdiction.
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(c)
Certain Obligations of the Licensors . Notwithstanding anything to the contrary in this Section 2.1, each of the
Licensors agrees to cooperate with Licensees, at Licensors’ expense, to take commercially reasonable steps to seek to eliminate or minimize
any actual consumer confusion arising from the Licensors’ activity during the Transition Period.
(d)
Inspection . In relation to each Licensee using the Transitional Servicemarks, during the Transition Period and the
Perpetual Servicemarks in perpetuity, each Licensor shall have the right during a Licensee’s normal business hours, upon reasonable notice to
Pubco and its applicable Subsidiaries and in a manner not unreasonably disruptive to Pubco’s and its Subsidiaries’ properties or business
operations, to inspect for compliance with Section 2.1 through Section 2.5, any and all uses of the Servicemarks by Pubco and its Subsidiaries,
including inspection of any and all materials on which the Servicemarks are displayed in the possession or control of Pubco and its
Subsidiaries. Any noncompliance with Section 2.1 through Section 2.5 shall be corrected by Pubco and/or its respective Subsidiary as soon as
reasonably practical, but no later than twenty (20) Business Days following receipt by Pubco of written notice from one of the Licensors.
(e)
Disclaimer . As soon as reasonably practical, but no later than thirty (30) days following the Effective Date, Pubco and
its Subsidiaries shall post on their respective website landing pages, and any other page that consistently receives deep link or landing traffic on
which the Servicemarks are displayed, the following statement: “OM Asset Management plc is a publicly traded corporation, and it and its
subsidiaries are currently using trademarks including the “OLD MUTUAL” name, OM, OMAM, OM ASSET MANAGEMENT, OM 3
Anchor Design Logo and associated trademarks of Old Mutual plc and Old Mutual Life Assurance Company (South Africa) Ltd. under
license.” As soon as reasonably practical, but no later than thirty (30) days following the termination of the Transitional License, Pubco and its
Subsidiaries shall revise the foregoing statement on their respective website landing pages, and any other page that consistently receives deep
link or landing traffic on which the “OM Asset Management” corporate names or trade names or the Perpetual Servicemarks are displayed, and
post (i) the following statement: “OM Asset Management plc, a publicly traded corporation, was previously associated with the Old Mutual
Group but is no longer associated with or affiliated to the Old Mutual Group”; and (ii) a statement advising visitors to the website that
information on Old Mutual products in the United Kingdom and South Africa (and any other country where the Licensors have ownership of,
or other rights to use, a domain name including the word “omam”) can be found at the Old Mutual websites in those countries, which
statement shall provide a link to one or more of such Old Mutual websites in the United Kingdom, South Africa or any other relevant country.
In order for Pubco and its Subsidiaries to comply with the obligation set forth in this Section 2.1(e)(ii), Licensors shall, prior to the end of the
Transition Period, provide to Pubco a list of countries in which Licensors have ownership of, or other rights to use, a domain name including
the word “omam” and hyperlinks to such Old Mutual websites in the United Kingdom and South Africa and any other relevant countries. For
the avoidance of doubt, Licensees shall not be deemed to be in breach of this Section 2.1(e)(ii) if Licensees’ failure to include a particular
country where Licensors’ have ownership of, or other rights to use, a domain name including the word “omam” or a hyperlink to the relevant
Old Mutual websites in such countries is due to Licensors’ failure to provide Licensees with the list of relevant countries and/or hyperlinks.
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(f)
Change of Name .
(i)
Timely during the Transition Period, Pubco and its Subsidiaries shall file (at their own cost and expense)
before the relevant Governmental Authority throughout the Territory the necessary documents so as to amend or terminate
any registration or certificate of assumed name, fictitious name or d/b/a filings containing the name “Old Mutual” so as to
cause such assumed name, fictitious name or d/b/a filings to be changed to eliminate the name “Old Mutual” therefrom. For
the avoidance of doubt, Pubco and its Subsidiaries shall not be required to amend or terminate any registration or certificate
of assumed name, fictitious name or d/b/a filings containing the names “OMAM” or “OM Asset Management”.
(ii)
Pubco and its Subsidiaries agree, that after the Closing Date neither Pubco nor any of its Subsidiaries will
expressly, or willingly by implication, do business as or represent themselves as either of the Licensors or any of a Licensor’s
other Affiliates, and the personnel of Pubco or its Subsidiaries shall not, and shall have no authority to, as of the Closing
Date, hold themselves out as officers, employees or agents of either of the Licensors.
(iii)
Pubco shall not and shall cause its Subsidiaries not to purport to, or represent that it or they may, bind or do
business as either of the Licensors or any of their Affiliates.
Section 2.2
Visual Identity; No Reasonable Likelihood of Confusion .
(a)
If any Party or any of its Subsidiaries either conducts new activities or enters into a market or jurisdiction (the “
Entering Party ”) where another Party or any of its Subsidiaries is already commercially active (the “ Existing Party ”), the Entering Party
agrees (i) to evaluate the likelihood of customer confusion or brand dilution posed by such proposed Servicemarks on the Existing Party’s
Visual Identity in such market or jurisdiction and (ii) to take all necessary steps to distinguish itself and its branding from the Existing Party
and to ensure that its branding is not confusingly similar with branding of the Existing Party in the sole reasonable discretion of the Existing
Party.
(b)
Each Party acknowledges and agrees that the existing activities of the businesses of Pubco or its Subsidiaries and the
Licensors or their Subsidiaries do not create any consumer confusion and each Party and its respective Subsidiaries can continue to operate
their respective businesses as such businesses were operated prior to Closing, provided that, each Party and its respective Subsidiaries
implements appropriate source or business identifiers and/or disclaimers on its products, advertisements or other materials to make clear to a
third party which Party or Subsidiary is providing a particular product or service. For the avoidance of doubt, each Party and its respective
Subsidiaries shall have five (5) Business Days after Closing to implement all such changes on electronic products, advertisements and other
materials, and shall have sixty (60) days after Closing to implement all such changes on printed products, advertisements and other materials.
9
(c)
Notwithstanding the above, (i) nothing in this Section 2.2 shall limit the right of each Licensor or its Subsidiaries to use
such Licensor’s Servicemarks, or other elements of its worldwide corporate Visual Identity, in any jurisdiction, at any time and (ii) this
Section 2.2 shall not apply to new Funds launched by any Licensor or its Subsidiaries except in such cases where such Licensors have
previously consented to the use by Pubco, its Subsidiaries or Affiliates in connection with a Fund.
Section 2.3
Domain Names .
(a)
Subject to the obligations of Section 2.1, during the Transition Period, Licensees shall have continued rights to use the
Old Mutual Domain Names and to manage and direct the use of and content on the websites associated with the Old Mutual Domain Names.
(b)
Prior to the expiration of the Transition Period, Pubco (on behalf of itself and each of the other Licensees) shall register
a domain name that does not feature the terms “Old Mutual” (the “ Re-Direct Domain ”) and shall establish and register a website at the
Re-Direct Domain.
(c)
Upon expiration of the Transition Period, Licensees agree to cease use of the Transitional Old Mutual Domain Names
and promptly transfer the Transitional Old Mutual Domain Name registrations to OM plc, provided that, for a period of six (6) months
following the expiration of the Transition Period, OM plc shall maintain the Transitional Old Mutual Domain Names and automatically
re-direct all attempts by users to access the websites featured at the Transitional Old Mutual Domain Names to the relevant Licensee’s
Re-Direct Domain.
(d)
For the avoidance of doubt, subject to the terms and conditions of this Agreement, Licensees shall have the continued
right to use the Perpetual Old Mutual Domain Name, and to manage and direct the use of and content on the website associated with the
Perpetual Old Mutual Domain Name, including, without limitation, the email address extension, @omam.com, associated with the Perpetual
Old Mutual Domain Name, in perpetuity (unless this Agreement is otherwise terminated pursuant to Section 7.2 below).
Section 2.4
Pubco Marks and Rebranded Marks . The Licensees shall have the right to register new trademarks and service
marks in the Territory that replace the Transitional Servicemarks with Licensees’ marks (the “ Rebranded Marks ”), provided that such
Rebranded Marks (a) do not contain the terms set forth in Schedule 2.4 hereto, and (b) are not the same as, or confusingly similar to, any
common-law, pending or registered trademark, servicemark, trade name or logo of either Licensor, or any Subsidiary or Affiliate of either
Licensor. Pubco shall bear all fees and costs associated with the Rebranded Marks.
Section 2.5
Social Media . The Parties will work in good faith and cooperate with each other and the social media vendors to
replace the social media fan sites using any Transitional Servicemarks with Rebranded Marks while using commercially reasonable efforts to
seek to retain, to the extent reasonably practicable without any Party compromising its respective brand or Visual Identity, the applicable fans
and historical content.
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ARTICLE III
OWNERSHIP OF THE SERVICEMARKS
Section 3.1
Pubco And Its Subsidiaries Not To Jeopardize Registration . Pubco and its Subsidiaries undertake not to do or
permit to be done any act which would or might jeopardize or invalidate any registration of the Servicemarks, nor do any act which might
assist or give rise to an application to remove the Servicemarks from any register of trademarks, or which might prejudice the right or title of
either of the Licensors to the Servicemarks.
Section 3.2
No Ownership Of Servicemarks By Pubco Or Its Subsidiaries . As between the Licensors and Pubco, each of OM
plc and OMLAC shall own all rights in their respective Servicemarks. Pubco and its Subsidiaries will not make any representation or do any
act which may be taken to indicate that they have any right, title or interest in or to the ownership or use of the Servicemarks except under the
terms of this Agreement, and Pubco acknowledges that nothing contained in this Agreement shall give Pubco and its Subsidiaries any right,
title or interest in or to the Servicemarks except as granted by this Agreement.
Section 3.3
Acknowledgement as to Servicemarks; Cooperation . Pubco and its Subsidiaries agree that they will not dispute the
validity of the Servicemarks or the ownership rights of the respective Licensors thereto. The Licensors and their Subsidiaries agree that they
will not dispute the validity of the Rebranded Marks or the ownership rights of Pubco or its Subsidiaries thereto, provided that such
Rebranded Marks comply with Section 2.4 of this Agreement. Pubco and its Subsidiaries shall not register or apply for the registration of any
of the Servicemarks or any trademarks or service marks which are confusingly similar to the Servicemarks. Pubco and its Subsidiaries shall, at
a Licensor’s request and expense, cooperate with such Licensor in the defense of such Licensor’s rights in the Servicemarks and in connection
with the registration and maintenance of the Servicemarks and the prosecution for registration of any application which contains the
Servicemarks and/or the words set forth in Schedule 2.4 hereto. As between Licensees and Licensors, the Licensors shall bear all costs
associated with the registration and maintenance of the Servicemarks.
ARTICLE IV
INFRINGEMENT OF SERVICEMARKS
Section 4.1
Notification of Infringement . Licensees shall, as soon as they become aware thereof, notify the Licensors in writing
(giving full particulars thereof) of any use or proposed use by any unrelated Person of a trade name, trade mark, domain name or mode of
promotion or advertising that amounts or might amount either to infringement of the Licensors’ rights in relation to the Servicemarks or to the
passing-off of, misappropriation of or any other misleading or deceptive conduct in trade or commerce in relation to the Servicemarks, or any
other torts involving the Servicemarks.
Section 4.2
Notification of Allegations . If Licensees become aware that any Person alleges that the Servicemarks are invalid or
that use of the Servicemarks infringes any rights of another party or that the Servicemarks are otherwise attacked or attackable, Licensees shall
immediately
11
notify the Licensors in writing thereof and shall make no comment or admission to any third party in respect thereof.
Section 4.3
Conduct of Proceedings by the Licensors . The Licensors shall have the sole and exclusive right to decide what action
if any to take in respect of any unrelated third party infringement or alleged infringement of the Servicemarks or passing-off or any other
claim or counterclaim brought or threatened in respect of the use or registration of the Servicemarks, and shall control all proceedings related
thereto. The Licensors shall bear all fees and costs associated with any such action or proceeding, and shall retain all recovery costs
associated therewith. The provisions of section 30 of the Trade Marks Act 1994 (or equivalent legislation in any jurisdiction) are expressly
excluded.
Section 4.4
Assistance in Proceedings . Licensees will, at the request of the Licensors, give reasonable cooperation to the
Licensors in any action, claim or proceedings brought or threatened against any third party in respect of the matters set forth in this Article IV.
ARTICLE V
WARRANTIES; INDEMNITIES; DISCLAIMERS
Section 5.1
Representations and Warranties . Each of the Parties represents and warrants to the others that it has the requisite
power and authority to enter into and perform its obligations under this Agreement. Each of the Parties represents and warrants to the others
that no consent, approval, authorization or other order of, or registration or filing with, any Governmental Authority, is required for such
Party’s execution, delivery and performance of this Agreement or consummation of the transactions contemplated hereby, except as have been
set forth in this Agreement or have been obtained or made by any Party and are in full force and effect under all Applicable Laws.
(a)
THE REPRESENTATIONS AND WARRANTIES IN SECTION 5.1 ARE THE ONLY REPRESENTATIONS AND
WARRANTIES GIVEN BY THE PARTIES IN CONNECTION WITH THIS AGREEMENT AND THE SUBJECT MATTER HEREOF,
AND ALL INTELLECTUAL PROPERTY LICENSED UNDER THIS AGREEMENT IS PROVIDED “AS IS” AND IS LICENSED,
ASSIGNED OR OTHERWISE CONVEYED WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER
IN THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, AND EACH
PARTY HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED REPRESENTATIONS AND WARRANTIES EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN.
(b)
NO PARTY OR ANY OF ITS AFFILIATES OR SUBSIDIARIES MAKES ANY WARRANTY OR
REPRESENTATION UNDER THIS AGREEMENT THAT ANY EXPLOITATION OF ANY PRODUCT OR SERVICE WILL BE FREE
FROM INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.
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Section 5.2
Indemnification .
(a)
Licensees agree to defend, indemnify and keep indemnified and hold OM plc and OMLAC, as applicable, and all of
their Affiliates and their respective directors, officers, employees, shareholders, agents, attorneys, representatives, successors and assigns (the “
OM Indemnitees ”), harmless from and against any and all Losses (without limitation or cap of any kind) suffered or incurred by the OM
Indemnitees in connection with (i) any action or claim by any third party against the OM Indemnitees relating to or arising out of or in
connection with any breach of this Agreement by Licensees and/or their Affiliates; (ii) any action or claim by any third party against the OM
Indemnitees on the basis that Licensees and/or their Affiliates have acted on behalf of OM plc or OMLAC, or any of their Affiliates, or have
the authority to bind OM plc or OMLAC, or any of their Affiliates; or (iii) any action or claim by a third party against the OM Indemnitees
relating to the use by Licensee or its Subsidiaries of the Servicemarks (other than any actions set forth in Section 5.2(b)(ii) below).
(b)
Each Licensor, jointly and severally, agrees to defend, indemnify and keep indemnified and hold Licensees and all of
their Affiliates and their respective directors, officers, employees, shareholders, agents, attorneys, representatives, successors and assigns (the “
Pubco Indemnitees ”), harmless from and against any and all Losses (without limitation or cap of any kind) suffered or incurred by the Pubco
Indemnitees in connection with (i) any action or claim by any third party against the Pubco Indemnitees relating to or arising out of or in
connection with any breach of this Agreement by such Licensor and/or such Licensor’s Affiliates; (ii) any action or claim by any third party
against the Pubco Indemnitees on the basis that the Servicemarks used by the Licensees and/or their Affiliates infringe upon the rights of such
third parties, provided that the Pubco Indemnitees are using the Servicemarks in accordance with this Agreement; or (iii) any action or claim by
a third party against the Pubco Indemnitees relating to the use by such Licensor or its Subsidiaries of the Servicemarks (other than any actions
set forth in Section 5.2(a)(ii) above).
Section 5.3
Reservation of Rights . Except for those rights expressly licensed pursuant to this Agreement, no rights or licenses in
or to any intellectual property right owned or licensed by any Party or any of such Party’s Affiliates or Subsidiaries are assigned, granted or
otherwise conveyed to any other Party, and nothing contained herein shall be construed as conferring to such other Party or its Affiliates or
Subsidiaries by implication, estoppel or otherwise any right, title or interest of any other Party or its Affiliates or Subsidiaries in or to any such
intellectual property right.
Section 5.4
No Obligation To Provide Technology . Except as otherwise expressly set forth in this Agreement, no Party, or any of
its Affiliates or Subsidiaries, is obligated by this Agreement to provide any other Party with any technical assistance or to furnish any other
Party with, or obtain, any documents, materials, instructions, corrections, updates or other information or technology.
Section 5.5
Release of Information . Licensees must inform the Licensors, in a timely and adequate manner, of any public
information that they, their Affiliates or Subsidiaries wish to publish that would be reasonably likely to have an adverse effect on the goodwill
associated
13
with the Servicemarks or the reputation or public image of the Licensors, so that the Licensors may, should the Licensors consider it
necessary, issue a press release concerning the publication of such public information. If possible, the Licensors should be informed at least
one (1) week in advance of the disclosure of any development or information that would be reasonably likely to have an adverse effect on the
goodwill associated with the Servicemarks or the reputation or public image of the Licensors. In case of a development or any information
that may require immediate disclosure, Licensees shall promptly inform the Licensors, and where legally permissible, before any such
disclosure is made.
Section 5.6
Damages Inadequate . Without prejudice to any other rights or remedies that each Party may have, each Party
acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this Agreement by any other
Party. Accordingly, each Party shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened
or actual breach of the terms of this Agreement by any other Party.
ARTICLE VI
DISPUTE RESOLUTION
Section 6.1
Arbitration
Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be
referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (“ LCIA Court ”) which are
deemed to be incorporated by reference into this clause, save as modified herein:
(i)
The seat of arbitration shall be London, England.
(ii)
There shall be three arbitrators, one nominated by the claimant and one nominated by the respondent within
fifteen (15) days of respondent’s receipt of the claimant’s request for arbitration. If OMLAC and OM plc are co-claimants or
co-respondents to the arbitration, they shall be treated as one party for the purposes of the nomination of an arbitrator. If any
Party has not appointed its arbitrator within the 15-day period specified herein, such appointment shall be made by the LCIA
Court upon the written request of a Party within fifteen (15) days of such request. The LCIA Court shall appoint the chairman
within fifteen (15) days of the nomination of the other two members of the tribunal. The hearing shall be held no later than
one-hundred-and-twenty (120) days following the appointment of the third arbitrator.
(iii)
In terms of procedure, the Parties agree that:
(A)
(B)
The Request shall be treated as the Claimant(s)’ Statement of Case.
The Statement of Defence shall be sent to the Registrar within fifteen (15) days of receipt of notice of
appointment of the third arbitrator.
14
(C)
A case management hearing shall take place within ten (10) days of receipt of the Statement of
Defence to determine the procedure leading up to the hearing. The Parties shall seek to agree to the
procedure between them, consistent with the provisions of this Section 6.1.
(D)
The Statement of Reply (if any) shall be sent to the Registrar within fifteen (15) days of receipt of the
Statement of Defence.
(E)
The Statement of Reply to Counterclaim (if any) shall be sent to the Registrar within fifteen (15) days
of receipt of the Statement of Reply.
(F)
The arbitral tribunal shall exercise its power to order the Parties to supply copies of any documents in
their possession, custody or power that are relevant to the subject matter of the dispute taking into account
the Parties’ desire that the arbitration be conducted expeditiously and cost effectively. All disclosure of
documents shall be completed within sixty (60) days of the appointment of the third arbitrator.
(G)
The Parties agree that they shall have the right to be heard orally on the merits of the dispute.
(iv)
By agreeing to arbitration, the Parties do not intend to deprive a court of its jurisdiction to issue a pre-arbitral
injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award.
Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall
have full authority to grant provisional remedies, to direct the Parties to request that any court modify or vacate any
temporary or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the arbitral
tribunal’s orders to that effect. For the purpose of any provisional relief contemplated hereunder, the Parties hereby submit to
the non-exclusive jurisdiction of the English Courts. Each Party unconditionally and irrevocably waives any objections which
it may have now or in the future to the jurisdiction of the English Courts including objections by reason of lack of personal
jurisdiction, improper venue, or inconvenient forum.
(v)
The award shall be in writing, shall state the findings of fact and conclusions of law on which it is based, shall
be final and binding and shall be the sole and exclusive remedy among the Parties regarding any claims or counterclaims
presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction.
(vi)
The Parties will bear equally all fees, costs, disbursements and other expenses of the arbitration, and each
Party shall be solely responsible for all fees, costs, disbursements and other expenses incurred in the preparation and
15
prosecution of its own case; provided that in the event that a Party fails to comply with the orders or decision of the arbitral
tribunal, then such noncomplying Party shall be liable for all costs and expenses (including attorney fees) incurred by the
other Parties in their efforts to obtain either an order to compel, or an enforcement of an award, from a court of competent
jurisdiction.
(vii)
The arbitral tribunal shall have no authority to award punitive, exemplary or multiple damages or any other
damages not measured by the prevailing Parties’ actual damages.
(viii)
All notices by one Party to another in connection with the arbitration shall be in accordance with the provisions
of Section 8.1 hereof, except that all notices for a demand for arbitration made pursuant to this Article VI must be made by
personal delivery or receipted overnight courier. This agreement to arbitrate shall be binding upon the successors and
permitted assigns of each Party. This Agreement and the rights and obligations of the Parties shall remain in full force and
effect pending the award in any arbitration proceeding hereunder.
Section 6.2
Confidentiality . Except to the extent necessary to compel arbitration or in connection with arbitration of any dispute
under this Agreement, or for enforcement of an arbitral award, information concerning (i) the existence of an arbitration pursuant to this
Article VI, (ii) any documentary or other evidence given by a Party or a witness in the arbitration or (iii) the arbitration award may not be
disclosed by the tribunal administrator, the arbitrators, any Party or its counsel to any Person not connected with the proceeding unless
required by law or by a court or competent regulatory body, and then only to the extent of disclosing what is legally required. A Party filing
any document arising out of or relating to any arbitration in court shall seek from the court confidential treatment for such document and
provide notice thereof to the non-disclosing Party.
Section 6.3
Conduct During Dispute Resolution . The Parties shall continue the performance of their respective obligations under
this Agreement that are not the subject of dispute during the resolution of any dispute or disagreement, including during any period of
arbitration, unless and until this Agreement is terminated or expires in accordance with its terms and conditions.
ARTICLE VII
TERM
Section 7.1
Term .
(a)
Transitional License . With respect to the Transitional Servicemarks and Transitional Old Mutual Domain Names, this
Agreement shall commence on the Effective Date and the Transitional License shall terminate automatically, along with all licenses and
sublicenses granted therefor hereunder, on the first day following the day that is six (6) months after the end of the Transition Period. .
(b)
Perpetual License . With respect to the Perpetual Servicemarks and Perpetual Old Mutual Domain Name, this
Agreement shall commence on the Effective Date and shall continue
16
in perpetuity, unless terminated pursuant to Section 7.2 below. In the event the Perpetual License is terminated pursuant to Section 7.2 below
and the Transitional License has been terminated pursuant to Section 7.1(a) above, the Agreement shall terminate concurrently therewith.
(c)
With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.
Section 7.2
Termination . Either Licensor shall have the right to terminate this Agreement at any time if Licensees materially
breach this Agreement; provided that if such material breach is capable of being cured, then such Licensor shall not be permitted to terminate
this Agreement unless the Licensees fail to cure such material breach within twenty (20) Business Days after receipt of written notice of such
breach from one of the Licensors.
Section 7.3
Survival . Section 2.1(b)(iv), Section 2.1(b)(v), Section 2.3(b) and (c), Article III, Section 5.1, Section 5.2, Section 5.3,
Article VI, Article VII and Article VIII shall survive the expiration or termination of this Agreement for any reason.
ARTICLE VIII
MISCELLANEOUS
Section 8.1
Notices . Unless otherwise provided in this Agreement, all notices and other communications provided for
hereunder shall be dated and in writing and shall be deemed to have been given (i) when delivered, if delivered personally, sent by confirmed
telecopy or sent by registered or certified mail, return receipt requested, postage prepaid, provided that such delivery is completed during
normal business hours of the recipient, failing which such notice shall be deemed to have been given on the next Business Day, (ii) on the next
Business Day if sent by overnight courier and delivered on such Business Day within ordinary business hours and, if not, the next Business
Day following delivery; and (iii) when received, if received during normal business hours and, if not, the next Business Day after receipt, if
delivered by means other than those specified above. Such notices shall be delivered to the address set forth below, or to such other address as a
Party shall have furnished to the other Party in accordance with this Section (each such notice, a “ Notice ”):
If to Pubco, to:
c/o Old Mutual (US) Holdings Inc.
200 Clarendon Street, 53rd Floor
Boston, MA 02116
Attention: Steve Belgrad, CFO
Phone No.: 617-369-7371
Email: [email protected]
With a copy to:
Bingham McCutchen LLP
399 Park Avenue
New York, NY 10022-4689
17
Attention: Floyd Wittlin, Esq.
Phone No.: 212-705-7466
Email: [email protected]
If to the Licensors, to:
Old Mutual plc
5 th Floor, Millennium Bridge House
2 Lambeth Hill
London EC4V 4GG, United Kingdom
Attention: Group Company Secretary
Phone No.: +44(0) 20 7002 7109
Email: [email protected]
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Ralph Arditi
Phone No.: 212-735-3860
Email: [email protected]
Section 8.2 Entire Agreement.
(a)
This Agreement, including any Schedules attached hereto, represents the entire understanding of the Parties hereto with
respect to the subject matter hereof and thereof and supersede any and all other oral or written agreements heretofore made with respect to such
subject matter. Other than as expressly set forth in this Agreement, no Party has relied upon any statement or representation other than
statements and representations expressed in this Agreement, and nothing in this Agreement, express or implied, is intended to confer upon any
Person, other than the Parties and their respective successors and permitted assigns, any rights or remedies under or by reason of this
Agreement. For the avoidance of doubt, Pubco is liable to the Licensors for every act or omission of any other Licensee which would have
breached this Agreement had it been committed or omitted by Pubco itself.
(b)
It is acknowledged and agreed that: (i) no Party has entered into this Agreement in reliance upon any representation,
warranty, undertaking, collateral contract or other assurance of any other Party that is not expressly set out or referred to in this Agreement;
(ii) no Party shall have any remedy in respect of misrepresentation or untrue statement made by any other Party unless and to the extent that a
claim lies for breach of warranty under this Agreement; and (iii) this clause shall not exclude any liability for fraudulent misrepresentation.
Section 8.3 Contracts (Rights of Third Parties) Act .
pursuant to Article V of this Agreement, a Person
Except in relation to the rights of indemnification provided to the Indemnitees
18
who is not a Party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement.
Section 8.4 Subsidiary or Affiliate Action . Pubco shall cause each of its Subsidiaries and Affiliates to comply with all of the agreements,
obligations and covenants applicable to each such Subsidiary or Affiliate, as applicable, under this Agreement. This Section 8.4 shall not
apply with respect to any Affiliate of Pubco to the extent that Pubco does not have sufficient Control over such Affiliate to procure such
conduct from such Affiliate; provided , that such Control shall be deemed to exist in the case of any Subsidiary that is not specifically identified
in clause (iii) of the definition of Subsidiary.
Section 8.5 Confidential Information . Each Party shall treat all information provided to it by any other Party with the same degree of care
as such Party treats its own information of the same nature, provided that this Section 8.5 shall not apply to information relating to or
disclosed in the registration statement required in connection with the IPO, provided that confidential information received by a Party from
any other Party shall not be utilized by such Party to engage, directly or indirectly (including through Subsidiaries) in a business in
competition with the business of such other Party or any of its Subsidiaries..
Section 8.6 Interpretation; Effect . In this Agreement, except as context may otherwise require, (a) the words “hereby,” “hereof,” “herein,”
and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, (b) terms defined in the singular have a comparable meaning when used in the plural, and vice versa,
(c) references herein to a specific Article, Section, Subsection or Schedule shall refer, respectively, to Article, Sections, Subsections or
Schedules of this Agreement, (d) references to the transactions contemplated hereby include the transactions provided for in this Agreement,
(e) references to any agreement (including this Agreement), contract, statute or regulation are to the agreement, contract, statute or regulation
as amended, modified, supplemented, restated or replaced from time to time (in the case of an agreement or contract, to the extent permitted
by the terms thereof), and to any section of any statute or regulation include any successor to the section, (f) references to any Governmental
Authority includes any successor to that Governmental Authority, (g) wherever the word “include,” “includes,” or “including” is used in this
Agreement, it shall be deemed to be followed by the words “without limitation,” (h) references herein to any gender include each other
gender, (i) all pronouns and variations of pronouns will be deemed to refer to the feminine, masculine or neuter, singular or plural, as the
identity of the Person referred to may require, (j) headings and numbering of sections and paragraphs in this Agreement are for convenience
only and will not be construed to define or limit any of the terms in this Agreement or affect the meaning or interpretation of this Agreement,
(k) this Agreement is the product of negotiation by the Parties, having the assistance of counsel and other advisers, (l) the Parties intend that
this Agreement not be construed more strictly with regard to one Party than with regard to any other, and (m) no provision of this Agreement
is to be construed to require, directly or indirectly, any Person to take any action, or omit to take any action, to the extent such action or
omission would violate Applicable Law (including statutory and common law), rule or regulation.
19
Section 8.7 Severability . The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any
provision shall not affect the validity or enforceability of the other provisions hereof. Except as otherwise provided herein, if any provisions of
this Agreement or the application thereof to any Person or any circumstance is found by a court or other Governmental Authority of
competent jurisdiction to be invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out,
so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability,
nor shall such invalidity or unenforceability affect the validity or enforceability of such provision or the application thereof, in any other
jurisdiction.
Section 8.8 Applicable Law . This Agreement (together with any non-contractual obligations arising out of it) shall be construed and
enforced in accordance with, and the rights and duties of the Parties shall be governed by, the law of England and Wales.
Section 8.9 Amendment, Modification and Waiver . This Agreement may be amended, modified or supplemented at any time by written
agreement of the Parties. Any failure of any Party to comply with any term or provision of this Agreement may be waived by the other Parties
by an instrument in writing signed by such Parties, but such waiver or failure to insist upon strict compliance with such term or provision shall
not operate as a waiver of, or estoppel with respect to, any subsequent or other failure to comply. No waiver by any Party of any breach of this
Agreement shall be considered as a waiver of any subsequent breach of the same provision or any other provision.
Section 8.10 Assignment .
(a)
Neither this Agreement nor any of the rights, interests or obligations of any Party under this Agreement may be
assigned by such Party without the prior written consent of the other Parties, except that the Licensors may, without written consent of the
Licensees, assign all of their rights, benefits and obligations under this Agreement to one or more of their Affiliates; provided that any such
transferee assumes all of the relevant Licensor’s obligations under this Agreement in a written instrument.
(b)
This Agreement shall be binding upon and inure to the benefit of the Parties and the Licensees who are not Parties and
their respective permitted successors and assigns.
Section 8.11 Counterparts . This Agreement may be executed in two or more counterparts that may be delivered by means of facsimile or
email (or any other electronic means such as “.pdf” or “.tiff” files), each of which shall be deemed to constitute an original, but all of which
together shall be deemed to constitute one and the same instrument.
Section 8.12 Further Assurances . Each Party shall, on being required to do so by any other Party, perform or procure the performance of
all such acts and/or execute and/or deliver or procure the execution and/or delivery of all such documents (in each case at its own expense), as
may be required by law or as any other Party may from time to time reasonably require in order to implement and give full effect to this
Agreement.
20
Section 8.13 No Joint Venture . Nothing in this Agreement is intended to or shall operate to create a partnership, agency, employment joint
venture of any kind among the Parties.
Section 8.14 Compliance with Law . The Licensors shall not be in breach of this Agreement and shall have no liability to the Licensees
whatsoever to the extent that a Licensor acts (or omits to act) in a given manner in order to abide by any Applicable Law and/or in taking steps
to mitigate any breach of this Agreement by the Licensees or any of them.
Section 8.15 Bribery Act .
(a)
Each Party expects that the other has an awareness of the requirements of the Bribery Act and to have appropriate
processes and controls in place to prevent the offering or acceptance of bribes. Each Party shall:
(i)
comply with all Applicable Laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption
including the Bribery Act 2010 (“ Relevant Requirements ”);
(ii)
not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of
the Bribery Act 2010 if such activity, practice or conduct had been carried out in the United Kingdom;
(iii)
have and shall maintain in place throughout the term of this Agreement its own policies and procedures,
including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant
Requirements, and to avoid criminal liability and/or prosecution under the Bribery Act 2010, and will enforce them where
appropriate;
(b)
Promptly report to the others any request or demand for any undue financial or other advantage of any kind received by
it in connection with the performance of this Agreement;
(c)
Breach of this Section 8.15 shall be a material breach of this Agreement entitling the non-defaulting Party or Parties to
terminate this Agreement without incurring any liability for such termination.
(d)
For the purpose of this Section 8.15 the meaning of adequate procedures and foreign public official and whether a
Person is associated with another Person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued
under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
[ Signature Page Follows ]
21
IN WITNESS WHEREOF , the Parties have caused this Agreement to be duly executed as of the Effective Date.
OM Asset Management plc
“Pubco”
By:
/s/ Stephen H. Belgrad
Name: Stephen H. Belgrad
Title: Executive Vice President and Chief Financial Officer
Old Mutual plc
“OM plc”
By:
/s/ Martin C. Murray
Name: Martin C. Murray
Title: Solicitor and Group Company Secretary
Old Mutual Life Assurance Company (South Africa) Ltd.
“OMLAC”
By:
22
/s/ Mokaedi Dilotsotlhe
Name: Mokaedi Dilotsotlhe
Title: General Manager
Schedule 1
Perpetual Domain Name
Domain Name
Owner
Omam.com
Old Mutual (US) Holdings Inc.
Transitional Domain Names
Domain Name
Oldmutualus.com
Oldmutualglobalfunds.com
Omamnet.com
Omamus.com
Omip.com
Omamtrust.com
Omamint.com
Owner
Old Mutual (US) Holdings Inc.
Old Mutual (US) Holdings Inc.
Old Mutual (US) Holdings Inc.
Old Mutual (US) Holdings Inc.
Old Mutual (US) Holdings Inc.
Old Mutual (US) Holdings Inc.
Old Mutual (US) Holdings Inc.
23
Schedule 2.4
OLD MUTUAL
OM Logo
OM
OMAM
OM ASSET MANAGEMENT
OMGI
SKANDIA
1
Exhibit 10.4
Execution Copy
OCTOBER 8, 2014
OM GROUP (UK) LIMITED
OM ASSET MANAGEMENT PLC
DEFERRED TAX ASSET DEED
TABLE OF CONTENTS
Page
1.
DEFINITIONS
1
2.
DETERMINATION OF REALISED TAX BENEFIT
8
3.
INFORMATION; FINALIZATION OF SCHEDULES
9
4.
PAYMENTS
10
5.
TERMINATION
12
6.
RECONCILIATION
14
7.
CONDUCT OF AN ENQUIRY/CLAIM
15
8.
LATE PAYMENTS
16
9.
NOTICES
16
10.
ASSIGNMENT; AMENDMENTS; WAIVERS; AND SUCCESSORS
17
11.
ARBITRATION
18
12.
WITHHOLDING
20
13.
CONFIDENTIALITY
20
14.
NO JOINT VENTURE
20
15.
COUNTERPARTS
20
16.
ENTIRE DEED; NO THIRD-PARTY BENEFICIARIES
20
17.
GOVERNING LAW
21
18.
SEVERANCE
21
19.
REMEDIES
21
20.
FURTHER ASSURANCES
22
i
This DEFERRED TAX ASSET DEED is made on October 8, 2014
BETWEEN:
(1)
OM GROUP (UK) LIMITED a company incorporated and registered in England and Wales with company number 3591572
whose registered office is at 5th Floor, Millennium Bridge House, 2 Lambeth Hill, London EC4V 4GG (together with its successors
and permitted assigns, “ OMGUK ”); and
(2)
OM ASSET MANAGEMENT PLC a company incorporated and registered in England and Wales with company number
09062478 whose registered office is at 5th Floor, Millennium Bridge House, 2 Lambeth Hill, London EC4V 4GG (together with its
successors and permitted assigns, “ OMAM ”) .
WHEREAS
(A)
As at the date of this deed, OMGUK beneficially owns all of the issued share capital of OMAM. Each of OMGUK and OMAM
is a party to the Shareholder Agreement.
(B)
On June 30, 2014, OMAM filed the Registration Statement pursuant to which OMGUK will offer for sale to the public a certain
number of its ordinary shares of OMAM.
(C)
Immediately following the closing of the IPO, the OMAM Subsidiaries expect to have, and to be able to utilise, the Pre-IPO Tax
Assets.
(D)
Utilisation of the Pre-IPO Tax Assets is expected to reduce the OMAM Subsidiaries’ liability for Taxes in respect of Post-IPO
Tax Periods.
(E)
In connection with the IPO and pursuant to the Shareholder Agreement, the parties will enter into this Deed in order to make
certain arrangements with respect to the effect of the Pre-IPO Tax Assets on the reported liability for Taxes of the OMAM
Subsidiaries in respect of Post-IPO Tax Periods.
(F)
It is intended that the provisions of this Deed will not result in duplicative payment of any amount (including interest) required
under this Deed. It is also intended that the provisions of this Deed provide that an amount equal to 100% of the Realised Tax Benefits
for all Subject Taxable Years on or before the Tax Benefit Termination Date shall be paid to OMGUK pursuant to this Deed.
IT IS AGREED as follows:
1.
1.1
DEFINITIONS
As used in this Deed, the terms set forth in this clause 1 shall have the following meanings:
“ 2019 Termination Date ” means 31 December 2019.
“ Advisory Firm ” means an independent law or accounting firm that is nationally recognised as being expert in Tax matters.
“ Adjustment Amount ” is defined in clause 4.4.
“ Amended Tax Benefit Schedule ” is defined in clause 2.5(d).
“ Amended Termination Amount ” is defined in clause 5.9
“ Amended Termination Schedule ” is defined in clause 5.8
“ Business Day ” means any day except (i) a Saturday, (ii) a Sunday, (iii) any day on which the principal office of OMGUK or
OMAM is not open for business, and (iv) any other day on which commercial banks in the United Kingdom or New York, USA are
authorized or obligated by law or executive order to close.
“ Change of Control ” means Old Mutual plc ceasing to beneficially own, directly or indirectly, more than 50% of the ordinary share
capital of OMAM, the common stock of OMUSH or the assets of OMUSH.
“ Change of Control Termination Date ” means a Tax Benefit Termination Date within limb (b) of that definition.
“ Code ” means the United States Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder.
“ Cumulative Actual Tax Liability ” means, as of the end of any Subject Taxable Year, the cumulative liability of the relevant
OMAM Subsidiary for Taxes in respect of all Post-IPO Tax Periods, subject to any adjustment as contemplated in the definition of
Realised Tax Benefit.
“ Cumulative Hypothetical Tax Liability ” means, as of the end of any Subject Taxable Year, the cumulative liability of the relevant
OMAM Subsidiary for Taxes in respect of all Post-IPO Tax Periods, applying the applicable Tax rates for each Tax period, and using
the same methods, elections, conventions and similar practices used on the relevant Tax Return of the relevant OMAM Subsidiary for
each applicable Tax Period, but assuming that there were no Pre-IPO Tax Assets.
“ Deed ” means this deferred tax asset deed.
“ Deed Termination Date ” means the first the date on which all payments due and payable hereunder have been paid and the statute
of limitations with respect to all Subject Taxable Years in which Realised Tax Benefits accrued or the amount of the Pre-IPO Tax
Assets was relevant, inclusive of tax years subsequent to the Tax Benefit Termination Date, has expired.
“ Default Rate ” means LIBOR plus 300 basis points.
“ Determination ” shall have the meaning ascribed to such term in clause 1313(a) of the Code or similar provision of state, local and
non-United States 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 or the amount of the Pre-IPO Tax Assets. A Determination shall include the expiration
of all periods of limitations relating to the assessment of Tax for a Taxable Year.
“ Dispute ” is defined in clause 11.1.
“ Elected Change of Control Termination Date ” is defined in clause 5.4.
“ Enquiry/Claim ” means any audit, enquiry, investigation, assessment, adjustment or claim by any Taxing Authority in relation to,
or which may be relevant in any material way to, the determination or calculation of the Pre-IPO Tax Assets or Realised Tax Benefits.
“ Expert ” is defined in clause 6.1.
2
“ Fund ” means any pooled investment vehicle for which any Subsidiary of OMAM, directly or indirectly, provides any investment
advisory or sub-advisory services, or serves as the general partner, managing member or in any similar capacity (including any master
or feeder fund, parallel fund or other alternate investment vehicle or third party co-investment vehicle).
“ Indebtedness ” means as of any time, without duplication, the outstanding principal amount of, accrued and unpaid interest on, and
other payment obligations (including any prepayment premiums, “breakage costs”, redemption fees, out-of-pocket costs and expenses,
penalties and other obligations payable) arising under, any obligations of OMAM consisting of (i) indebtedness for borrowed money
or indebtedness issued in substitution or exchange for borrowed money or extensions of credit, (ii) amounts owing as deferred
purchase price for property or services (including obligations under capitalized leases (as determined in accordance with GAAP,
applied on a consistent basis) but excluding any trade payables and accrued expenses arising in the ordinary course of business),
(iii) indebtedness evidenced by any note, bond, debenture or other debt security, in each case, as of such time, (iv) obligations for the
reimbursement of any obligor on any letter of credit to the extent such letter of credit has been drawn upon, (v) any liabilities
associated with derivative or other hedging contracts (valued at the termination cost thereof), and (vi) obligations in the nature of
guarantees of the obligations of other Persons of the type referred to in clauses (i) through (v) above as of such time. Notwithstanding
the foregoing, “Indebtedness” shall not include (x) any undrawn letters of credit, (y) any Indebtedness among OMAM and its
Subsidiaries on the one hand, and OM plc and its Subsidiaries, on the other hand or (z) any inter-company Indebtedness between
OMAM and its Subsidiaries.
“ IPO ” means the initial public offering of ordinary shares of OMAM referred to in Recital (B) of this Deed.
“ LCIA Court ” is defined in clause 11.2.
“ 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).
“ OMAM Subsidiaries ” collectively means OMAM US and its Subsidiaries, and individually means any of OMAM US or any of the
Subsidiaries of OMAM US.
“ OMAM US ” means OMAM US, Inc.
“ OMUSH ” means Old Mutual (US) Holdings Inc., a company incorporated under the laws of the State of Delaware.
“ Payment on Account ” is defined in clause 4.2.
“ Person ” means any individual, corporation, partnership, joint venture, limited liability company, association or other business entity
and any trust, unincorporated organization or political subdivision thereof.
“ Post-IPO Tax Period ” shall mean a Taxable Year of the OMAM Subsidiaries beginning on the day immediately following the
closing date of the IPO. In the case of a Straddle Period, the portion of such Taxable Year beginning on the day immediately
following the closing date of the IPO shall be deemed to be a Post-IPO Tax Period.
3
“ Pre-IPO Tax Assets ” means, in each of cases (i) to (iii) below, with respect to the Pre-IPO Tax Periods, (i) the aggregate interest
expense deductions of the OMAM Subsidiaries that have been disallowed pursuant to section 163(j) of the Code; (ii) the aggregate
U.S. federal net operating losses and net operating loss carryovers of any of the OMAM Subsidiaries; (iii) the foreign tax credits of the
OMAM Subsidiaries relating to Rogge Global Partners plc; and (iv) without duplication, the tax benefits of the book amortization
reflected on OMAM’s financial statements for the expense related to share awards for periods ending before or on the closing date of
the IPO, with such tax benefits treated as realized upon the vesting of the shares with respect to the grant that gave rise to such
amortization. The share awards and the amortization thereof to the date hereto will be set forth in a letter from OMAM to OMGUK
on or about the date hereof
.
“ Pre-IPO Tax Period ” shall mean a Taxable Year of the OMAM Subsidiaries beginning before the closing date of the IPO. In the
case of a Straddle Period, the portion of such Taxable Year ending on (and including) the closing date of the IPO shall be deemed to
be a Pre-IPO Tax Period.
“ Realised Tax Benefit ” means, as of the end of a Subject Taxable Year with respect to any OMAM Subsidiary, the excess (if any)
of (i) the Cumulative Hypothetical Tax Liability (as of such time) over (ii) the sum of (A) the Cumulative Actual Tax Liability (as of
such time) and (B) the aggregate amount of payments previously made pursuant to this Deed in respect of the Realised Tax Benefit of
such OMAM Subsidiary as of such time, provided that if, as of such time, there is an unresolved claim, proposed adjustment or similar
item by a Taxing Authority that, if the Taxing Authority prevailed, would decrease the Realised Tax Benefit or increase the
Cumulative Actual Tax Liability, representatives of OMGUK and OMAM shall consult with each other in good faith to determine the
appropriate assumptions to use with respect to calculating the Realised Tax Benefit or Cumulative Actual Tax Liability, as applicable,
for the relevant affected Subject Taxable Year; provided that, to the extent reasonable and consistent with applicable law, the parties
hereto intend that the Realised Tax Benefit and/or Cumulative Actual Tax Liability, as applicable, will generally be calculated in a
manner consistent with any previously-filed Tax Returns or with any Tax Returns to be filed in accordance with the provisions of
Section 3.2 hereof and, in the event that the parties hereto cannot agree, the Realised Tax Benefit and Cumulative Actual Tax Liability
shall be calculated in accordance with such Tax Returns as filed.
“ Reconciliation Dispute ” has the meaning set forth in clause 6.1.
“ Reconciliation Procedures ” means those procedures set forth in clause 6.
“ Registration Statement ” means the registration statement on Form S-1 filed by OMAM with the U.S. Securities and Exchange
Commission in connection with the IPO, as such registration statement may be amended from time to time.
“ Schedule ” means any Tax Benefit Schedule, Amended Tax Benefit Schedule or Termination Schedule.
“ Schedule Delivery Date ” means, in respect of a Taxable Year of OMAM US and any Subsidiaries of OMAM US, 30 November in
the year following the end of such Taxable Year.
“ Senior Obligations ” is defined in clause 8.1.
“ Shareholder Agreement ” means the shareholder agreement entered into, or to be entered into, by OMGUK, OMAM and Old
Mutual plc in connection with the IPO.
4
“ Straddle Period ” means a Subject Taxable Year of the OMAM Subsidiaries in which the closing date of the IPO occurs.
“ Subject Taxable Years ” means, in relation to the relevant Schedule Delivery Date, the relevant federal Taxable Year of OMAM
US and its consolidated Subsidiaries, the relevant state Taxable Year of OMAM US and any Subsidiary with which OMAM US files a
consolidated, combined, unitary or other Tax Return, and any federal or state Taxable Year of any non-consolidated OMAM
Subsidiary ending within, or with, the consolidated federal Taxable Year of OMAM US.
“ Subsidiaries ” means with respect to any Person, (i) a corporation of which such Person owns stock that possesses at least 80% of
the total voting power of the stock of such corporation, and has a value equal to at least 80% of the total value of the stock of such
corporation or (ii) a corporation with which such Person files a combined, consolidated, unitary or similar Tax Return.
“ Takeover ” means a Change of Control which arises as a result of a single Person acquiring a holding of more than 50% of the
ordinary share capital of OMAM.
“ Tax ” or “ Taxes ” means any and all U.S. federal, state, local and foreign tax, assessments or similar charges that are based on or
measured with respect to net income or profits, whether as an exclusive or on an alternative basis, and any interest or penalties related
to such tax.
“ Tax Benefit Schedule ” is defined in clause 2.2.
“ Tax Benefit Termination Date ” means:
(a)
an Elected Change of Control Termination Date; or
(b)
if an Elected Change of Control Termination Date has not occurred, the later of:
(i)
the 2019 Termination Date; and
(ii)
31 December in the calendar year in which a Change of Control first occurs.
“ 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 an OMAM Subsidiary as defined in clause 441(b) of the Code or any comparable section
of state, local or non-United States Tax law, as applicable (and therefore may include a period of less than 12 months for which a Tax
Return is prepared).
“ Taxing Authority ” means any domestic, non-United States, 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.
“ Termination Amount ” means an amount equal to the present value, discounted at the Termination Rate, of all amounts that would
be required to be paid by OMAM to OMGUK pursuant to clause 4 of this Deed on the dates stipulated in that clause (disregarding the
effect
5
of clause 5.1 of this Deed) beginning from the day immediately following the Tax Benefit Termination Date and applying the
Valuation Assumptions.
“ Termination Adjustment Amount ” is defined in clause 5.9.
“ Termination Rate ” means an interest rate equal to the sum of the following: (i) the five year U.S. Treasury Rate at the applicable
Tax Benefit Termination Date; (ii) the swap rate applicable to a counterparty with a credit rating of BBB+ from Standard & Poors (or
equivalent rating from an internationally recognized rating agency) swapping 3-month LIBOR at such Tax Benefit Termination Date
into a five year fixed rate; and (iii) 55 basis points.
“ Termination Schedule ” is defined in clause 5.2.
“ 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.
“ True-Up Payment ” is defined in clause 4.3.
“ Valuation Assumptions ” means the following assumptions:
(a)
The taxable income, profits and gains (before deductions for interest expense and net operating losses) of each OMAM
Subsidiary (1) for the first Subject Taxable Year after the Tax Benefit Termination Date will equal the average of its taxable
income, profits and gains (before deductions for interest expense and net operating losses) in each relevant Subject Taxable
Year from the day immediately following the closing date of the IPO to the Tax Benefit Termination Date; and (2) for each
Taxable Year subsequent to the Tax Benefit Termination Date shall grow by the compounded annual growth rate of income
profits and gains for that OMAM Subsidiary for each of the Subject Taxable years ending between the day immediately
following the closing date of the IPO and the Tax Benefit Termination Date over such average each year.
(b)
the post-IPO component of interest expense in each Subject Taxable Year after the Tax Benefit Termination Date will
equal the average annual post-IPO component of interest expense in each relevant Subject Taxable Year from the day
immediately following the closing date of the IPO to the Tax Benefit Termination Date (and will remain constant);
(c)
the projected total interest expense for a Subject Taxable Year after the Tax Benefit Termination Date will be based on
the average of the following ratio with respect to each Subject Taxable Year prior to the Tax Benefit Termination Date: total
interest expense permitted under section 163(j) of the Code to taxable income before taking interest and net operating loss
deductions into account.
(d)
all Tax laws and Tax rates in force as at the Tax Benefit Termination Date remain in effect, provided that any Tax laws
enacted but not yet in force as at the Tax Benefit Termination Date shall be taken into account with effect from the date on
which such laws come into force.
1.2
In this Deed (except where the context otherwise requires).
(a)
any reference to a clause is to the relevant clause of this Deed and any reference to a sub-clause is to the relevant
sub-clause of the clause in which it appears;
6
(b)
the table of contents, and clause, schedule and paragraph headings are included for convenience only and shall not
affect the interpretation of this Deed;
(c)
use of the singular includes the plural and vice versa;
(d)
use of any gender includes the other genders;
(e)
any reference to “Persons” includes natural persons, firms, partnerships, companies, corporations, associations,
organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having
separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
(f)
a reference to a “party” is a reference to a party to this Deed and, subject to clause 10, a reference to a “party” includes
a reference to that party’s successors in title and permitted transferees (if any);
(g)
if a period of time is specified and it dates from a given day or the day of an act or event, it shall be calculated
exclusive of that day;
(h)
if a party must do something on a given day, they must do it by 5:00pm on that day (unless this Deed expressly states
otherwise). If they do the thing after 5.00pm on a day they are treated as not having done it until the next day. A reference
to a time of day is a reference to London time;
(i)
a reference to “writing” does not include email;
(j)
a reference to a statute or statutory provision is a reference to that statute or statutory provision and to all orders,
regulations, instruments or other subordinate legislation made under the relevant statute;
(k)
any reference to a statute, statutory provision, subordinate legislation, code or guideline (“legislation”) is a reference to
such legislation as amended and in force from time to time and to any legislation which re-enacts, rewrites or consolidates
(with or without modification) any such legislation;
(l)
a reference to a governmental authority includes any successor to that governmental authority;
(m)
any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal
status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to
include a reference to what most nearly approximates in that jurisdiction to the English legal term;
(n)
the ejusdem generis rule shall not apply and accordingly general words introduced by the word “other” or any similar
word, or followed by the words “including”, “includes”, “include”, “in particular” or any similar words, shall not be given a
restricted meaning because they are preceded or followed by more specific words;
(o)
any reference to another document or any provisions of that document shall be construed as a reference to it as it is in
force for the time being and as amended in accordance with the terms of the document or, as the case may be, with the
agreement of the relevant parties or the consent of a specified party;
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(p)
2.
2.1
It is the intention of the parties hereto that every covenant, term and provision of the Deed shall be construed simply
according to its fair meaning and not strictly for or against any party, it being understood and agreed that the parties to this
Deed are sophisticated and have had adequate opportunity and means to retain counsel to represent their respective interests
and to otherwise negotiate the terms and provisions of this Deed. Accordingly, the parties hereby waive, to the fullest extent
permitted by applicable law, the benefit of any applicable law that would require that in cases of uncertainty, the language of
a contract should be strictly construed against, or most strongly construed against, the party who drafted such language.
DETERMINATION OF REALISED TAX BENEFIT
OMAM shall use all reasonable efforts to cause the OMAM Subsidiaries to claim, to the fullest extent permitted by applicable
law, the benefit of the Pre-IPO Tax Assets in order to reduce the amount of Taxes that the OMAM Subsidiaries would otherwise be
required to pay, and the Pre-IPO Tax Assets shall be utilised in the order and priority set forth in applicable law, but this clause 2.1
shall not require OMAM to cause the OMAM Subsidiaries to utilise the Pre-IPO Tax Assets in priority to any other Tax attributes.
2.2
Subject to clause 2.3, on each Schedule Delivery Date, OMAM shall provide to OMGUK:
a schedule (a “ Tax Benefit Schedule ”) in the format set out in Schedule 1 showing in reasonable detail:
(a)
(i)
the calculation of the Realised Tax Benefit for each OMAM Subsidiary for each relevant Subject Taxable
Year;
(ii)
(iii)
(b)
2.3
the amount of any Payments on Account previously paid in respect of the relevant Subject Taxable Year
pursuant to clause 4.2; and
where relevant, any Adjustment Amount; and
all supporting information (including working papers and valuation reports) reasonably necessary to support the
calculation of the amounts set forth on the Tax Benefit Schedule.
In calculating the Realised Tax Benefit in respect of the Straddle Period:
(a)
the relevant Subject Taxable Year shall on a notional basis be split into two periods, one beginning before, and ending
immediately on (and including) the closing date of the IPO and the second beginning on the day immediately following the
closing date of the IPO;
(b)
the Realised Tax Benefit in respect of the relevant Subject Taxable Year will be allocated between the portion of the
Straddle Period ending on and including the closing date of the IPO and the portion beginning on the day immediately
following the closing date of the IPO on the basis of the number of days in each period, with the Realised Tax Benefit
attributable to the latter period being included for the purposes of clause 2.2(a)(i) above; and
(c)
the relevant Tax Benefit Schedule should include adequate details of any division process referred to in clause
2.3(b) above.
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2.4
A Tax Benefit Schedule provided in accordance with clause 2.2 shall be amended from time to time by OMAM (such amended
Tax Benefit Schedule, an “ Amended Tax Benefit Schedule ”):
(a)
in connection with a Determination affecting such Schedule;
(b)
to correct inaccuracies in the Schedule;
(c)
to comply with the Expert’s determination under the Reconciliation Procedures or any award under clause 11.2;
(d)
to reflect a change (relative to the amounts in the original Tax Benefit Schedule) in the Realised Tax Benefit for a
Subject Taxable Year attributable to an amendment to a Tax Return filed for a relevant Subject Taxable Year; or
(e)
to take into account the effect of any Determination with respect to an unresolved claim, proposed claim or similar item
by a Taxing Authority originally taken into account in computing the Realised Tax Benefit.
2.5
OMAM shall provide any Amended Tax Benefit Schedule to OMGUK as soon as practicable and in any event within 30
Business Days of the occurrence of an event referred to in clauses (a) to (e) of clause 2.4, and any such Amended Tax Benefit
Schedule shall be subject to the approval procedures described in clause 3.3.
2.6
OMAM shall also amend a Tax Benefit Schedule at the request of OMGUK to reflect any of the events noted in clause 2.4 and in
accordance with the procedures set forth in clause 2.5.
3.
3.1
INFORMATION; FINALIZATION OF SCHEDULES
Within 30 Business Days following the closing date of the IPO, and within 30 Business Days following the start of each federal
Taxable Year of OMAM US thereafter, OMAM shall provide a schedule to OMGUK describing in reasonable detail: (i) the estimated
Realised Tax Benefit of each OMAM Subsidiary in respect of its current Subject Taxable Year; and (ii) the estimated payments to be
made by OMAM to OMGUK pursuant to clause 4.2 in respect thereof.
3.2
The parties shall procure that:
(a)
OMAM shall provide to OMGUK drafts of any Tax Returns of the OMAM Subsidiaries (together with any related
information) that are relevant to the calculation of Realised Tax Benefit in respect of a Subject Taxable Year for comment at
least twenty (20) Business Days before the due date for the filing thereof (taking into account applicable extensions);
(b)
OMGUK shall provide comments on such draft Tax Returns relevant to the determination of the Realised Tax Benefit
for the relevant Subject Taxable Year within eight (8) Business Days of receiving such draft Tax Returns and related
information, if any, from OMAM;
(c)
OMAM shall provide to OMGUK a revised draft of the relevant Tax Returns referenced in subclause 3.2(a) (together
with any related information) above at least ten (10) Business Days before the due date for filing thereof, and such drafts
shall take into account and reflect OMGUK’s reasonable comments in relation to such Tax Returns to the extent relevant to
the determination of the Realised Tax Benefit for the relevant Subject Taxable Year;
9
3.3
(d)
OMGUK shall provide any final comments in relation to the revised drafts of such Tax Returns and related information
(if any) to the extent relevant to the determination of the Realised Tax Benefit for the relevant Subject Taxable Year no later
than five (5) days prior to the due date for filing thereof (taking into account applicable extensions); and
(e)
OMGUK’s reasonable comments in relation to such revised draft Tax Returns, to the extent relevant to the
determination of the Realised Tax Benefit for the relevant Subject Taxable Year shall be taken into account or reflected in the
Tax Return as filed by OMAM or the relevant OMAM Subsidiary, as applicable.
Whenever OMAM delivers to OMGUK a Schedule pursuant to this Deed or makes a payment based on an estimate of payments
due, OMAM shall also:
(a)
deliver to OMGUK schedules, valuation reports, if any, and working papers providing reasonable detail regarding the
preparation of the Schedule and an Advisory Firm report, in form and substance reasonably satisfactory to OMGUK, if
requested by OMGUK, related to such Schedule (the cost and expense of which shall be borne equally by OMGUK and
OMAM); and
(b)
allow OMGUK reasonable access to the appropriate representatives at each relevant OMAM Subsidiary and at the
Advisory Firm in connection with a review of such Schedule. OMGUK will have 15 Business Days after receiving the
relevant Schedule to provide OMAM with a notice of objection in relation to such Schedule made in good faith. If the parties,
for any reason, are unable to successfully resolve the issues raised in any notice within 30 Business Days of receipt by
OMAM of such notice then the Reconciliation Procedures shall be applied.
(c)
In connection with a payment based on an estimate, OMAM shall deliver to OMGUK reasonable details, including
working papers, related to the calculation of the estimate and reasonable access to the appropriate representatives at OMAM
and at each OMAM Subsidiary that prepared the estimate.
3.4
In addition to the obligations in clauses 3.1, 3.2, and 3.3 OMAM will, and will procure that the other OMAM Subsidiaries will,
on an ongoing basis, promptly provide OMGUK with all information it reasonably requests which may be materially relevant to
calculating the amount and utilisation of the Pre-IPO Tax Assets.
3.5
For the avoidance of doubt, the policies and procedures adopted by the board of directors of OMAM shall apply to the activities
of OMAM and the OMAM Subsidiaries hereunder until the Majority Holder Date (as defined in the Shareholder Agreement).
4.
PAYMENTS
4.1
Subject to clauses 4.2 and 4.3, OMAM shall for no consideration annually pay OMGUK amounts equal to the amount of
Realised Tax Benefits in respect of each Subject Taxable Year as calculated under this Deed. The Realised Tax Benefits shall be
identified in a Tax Benefit Schedule or Amended Tax Benefit Schedule within 10 Business Days of the date upon which the relevant
Tax Benefit Schedule or Amended Tax Benefit Schedule (as applicable) becomes final as regards the Realised Tax Benefit in question
in accordance with clauses 3.3 and 6.
4.2
OMAM will make installment payments (each a “ Payment on Account ”) of the anticipated Realised Tax Benefit in respect of
each relevant Subject Taxable Year to OMGUK on 15 March, 15 June, 15 September and 15 December in that Subject Taxable
Year. The first such
10
payment shall be made on the later of December 15, 2014 and 30 calendar days following the closing of the IPO, in respect of the
Subject Taxable Year that includes the first Post-IPO Tax Period. Each such Payment on Account will be equal to the estimated
accrued amount of the Realised Tax Benefits in respect of the Subject Taxable Year as to which the next Schedule Delivery Date
relates as at those dates, such estimation being based on the most recent forecast for that Subject Taxable Year.
4.3
To the extent the payment required under clause 4.1 has not yet been made in respect of any relevant Subject Taxable Year, as of
November 30, 2015, and each November 30 thereafter, OMAM, utilizing such information as it reasonably possesses as of such date
(including the amounts set forth on the Tax Return for the immediately preceding Subject Taxable Year, if such Tax Return has been
filed or substantially prepared as of such date), shall make a payment to OMGUK equal to the excess of the Realised Tax Benefit in
respect of the immediately preceding Subject Taxable Year over the aggregate of the payments previously made under clause 4.2 in
respect of such Subject Taxable Year (the “ True-Up Payment ”). Any such True-Up Payment shall be treated as reducing OMAM’s
liability to make payment to OMGUK under clause 4.1 above to the extent that such payment relates to the Realised Tax Benefits
identified in the relevant Schedule.
4.4
Subject to clause 4.6 and 4.7, if:
(a)
a Tax Benefit Schedule indicates that the cumulative Payments on Account made pursuant to clause 4.2 and True-Up
Payments made pursuant to clause 4.3 (if any) in relation to the relevant Subject Taxable Years exceed (or are less than) the
Realised Tax Benefits in relation to the Subject Taxable Years; or
(b)
an Amended Tax Benefit Schedule indicates that any amounts paid to OMGUK pursuant to clause 4.1 above were in
excess of (or were less than) the Realised Tax Benefits for the relevant Subject Taxable Years,
the amount of the difference (the “ Adjustment Amount ”) shall be itemised in the relevant Schedule and set off against and reduce,
or serve as an additional amount, and increase, any future payments that would otherwise be due to be paid by OMAM to OMGUK
under this Deed until the Adjustment Amount has been exhausted through set-off or application in this manner.
4.5
If OMAM reasonably expects that a reduction of the next following payment due from it to OMGUK pursuant to clause 4.1, 4.2
or 4.3 of this Deed will not be sufficient to exhaust any Adjustment Amount in the manner referred to in clause 4.4, and if an OMAM
Subsidiary has a liability to make a payment of Tax to a relevant Taxing Authority as a result of a Determination that a Pre-IPO Tax
Asset is unavailable (or available in a reduced amount), then, subject to the immediately following sentence, OMGUK will repay to
OMAM the amount of the excess Adjustment Amount up to the amount of the relevant liability to Tax no later than 10 Business Days
before the date on which the relevant OMAM Subsidiary must account for the tax to the relevant Taxing Authority. In no event shall
OMGUK be required pursuant to this clause 4.5 to pay to OMAM an amount in excess of the net cumulative payments it had received
pursuant to clause 4 prior to the date such payment is requested; any amount requested in excess of the limitation in the immediately
preceding clause shall instead constitute an Adjustment Amount and will be credited against future payments to OMGUK in the
manner set forth in clause 4.4.
4.6
If OMAM reasonably expects that a reduction of all future payments due from OMAM to OMGUK pursuant to this Deed will be
insufficient to exhaust any Adjustment Amounts, a refund of the shortfall will then be made by OMGUK to OMAM within 10
Business Days of the parties agreeing in writing that this expectation is reasonable and that the terms of this
11
clause shall operate; provided that in no event shall OMGUK be required pursuant to this clause 4.6 to pay to OMAM an amount in
excess of the cumulative payments it had received pursuant to this clause 4 prior to the date such payment is requested;
4.7
Each payment made pursuant to this Deed shall be made by wire transfer of immediately available funds to a bank account of
OMGUK or OMAM (as applicable) previously designated by the relevant party.
5.
TERMINATION
5.1
OMAM will not be required to make any payment to OMGUK pursuant to clause 4.1 of this Deed in respect of any Realised Tax
Benefits accruing or arising after the Tax Benefit Termination Date.
5.2
In the event that the Tax Benefit Termination Date referred to in clause 5.1 above is the 2019 Termination Date, OMAM shall
pay OMGUK an amount equal to a reasonable estimate of the Termination Amount as at the 2019 Termination Date within 30
Business Days following that date.
5.3
In the event of a Change of Control which occurs after the 2019 Termination Date:
(a)
if the Change of Control is the result of a Takeover, OMAM shall pay OMGUK on the date of the Change of Control
an amount equal to the aggregate of:
(i)
a reasonable estimate of all Payments due under clause 4 of this Deed in respect of the Subject Taxable Year
in which the Change of Control occurs (or which would have been due but for this clause 5); and
(ii)
a reasonable estimate of the Termination Amount as calculated from the Change of Control Termination Date;
and
(b)
if the Change of Control does not result from a Takeover, OMAM shall pay OMGUK within 30 Business Days
following the date of the Change of Control an amount equal to the aggregate of:
(i)
(ii)
5.4
a reasonable estimate of all Payments due under clause 4 of this Deed in respect of the Subject Taxable Year
in which the Change of Control occurs (or which would have been due but for this clause 5); and
a reasonable estimate of the Termination Amount as calculated from the Change of Control Termination Date.
In the event that a Change of Control is the result of a Takeover which occurs prior to the 2019 Termination Date, OMGUK may
elect, at its sole discretion and by written notice to OMAM, to treat 31 December of the year in which the Change of Control occurs as
a Change of Control Termination Date (an “ Elected Change of Control Termination Date ”), in which case OMAM shall pay
OMGUK on the date of the Change of Control an amount equal to the aggregate of:
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(a)
a reasonable estimate of all Payments due under clause 4 of this Deed in respect of the Subject Taxable Year in which
the Change of Control occurs (or which would have been due but for this clause 5); and
(b)
a reasonable estimate of the Termination Amount as calculated from the Change of Control Termination Date.
5.5
On the Schedule Delivery Date next following the Tax Benefit Termination Date:
(a)
OMAM will provide a Tax Benefit Schedule in respect of the relevant Subject Taxable Years to OMGUK in
accordance with the normal procedures set out in clause 2.2; and
(b)
OMAM will provide a schedule to OMGUK showing in reasonable detail the calculation of the Termination Amount
(the “ Termination Schedule ”) in the format set out in Schedule 2.
5.6
If the Termination Amount exceeds the estimated Termination Amount determined in accordance with clauses 5.2, 5.3 or 5.4
above, OMAM shall pay OMGUK an amount equal to the excess within 10 Business Days of the date upon which the Termination
Schedule becomes final in accordance with clauses 3.3 and 6.
5.7
If the Termination Amount is less than the estimated Termination Amount determined in accordance with clauses 5.2, 5.3 or 5.4
above, OMGUK shall pay OMAM an amount equal to the difference within 10 Business Days of the date upon which the Termination
Schedule becomes final in accordance with clauses 3.3 and 6.
5.8
A Termination Schedule provided in accordance with clause 5.5 may be amended from time to time by OMAM (such amended
schedule, an “Amended Termination Schedule”):
(a)
to correct inaccuracies in the Amended Termination Schedule;
(b)
to comply with the Expert’s determination under the Reconciliation Procedures or any award under clause 11.2;
(c)
to reflect an increase or decrease in the rate of tax that was used to initially calculate the Termination Amount, subject
to the provisions of clause 5.12 and 5.13 below; or
(d)
to take into account the effect of any Determination by a Taxing Authority affecting the computation of the
Termination Amount, subject to the provisions of clause 5.13 below.
5.9
OMAM shall provide an Amended Termination Schedule to OMGUK as soon as practicable and in any event within thirty (30)
Business Days of the occurrence of an event referred to in clauses (a) through (d) of clause 5.8, and such Amended Termination
Schedule shall be subject to the approval procedures described in clause 3.3.
5.10
OMAM shall also amend a Termination Schedule at the request of OMGUK to reflect any of the events noted in clause 5.8 and in
accordance with the procedures set forth in clause 5.9.
5.11
Subject to clause 5.13, if:
(a)
an Amended Termination Schedule indicates that the aggregate amounts paid to OMGUK pursuant to clauses 5.2
through 5.7 above were in excess of (or were less
13
than) the Termination Amount as reflected on the Amended Termination Schedule(the “Amended Termination Amount”),
then
(b)
the amount of the difference (the “Termination Adjustment Amount”) shall be paid by OMGUK to OMAM, or by
OMAM to OMGUK, as applicable, within 10 Business Days of the date upon which the Amended Termination Schedule
becomes final in accordance with clauses 3.3 and 6.
5.12
In the case of an increase or decrease in the rate of tax from the rate that was used pursuant to the Valuation Assumptions to
initially calculate the Termination Amount, the Amended Termination Amount shall be calculated by amending the Valuation
Assumptions to apply the increased or decreased tax rate from and after the date at which such increased or decreased tax rate came
into effect.
5.13
Notwithstanding anything to the contrary, in no event shall OMGUK be required to repay to OMAM an amount pursuant to
clause 5.11 in excess of the aggregate Termination Amounts paid to OMGUK by OMAM under this Agreement.
5.14
The parties shall have no further obligations or rights under this Deed after the Deed Termination Date, without prejudice to any
obligations or rights which have accrued to either party at this date save that clause 13 together with those other clauses, the survival
of which is necessary for the interpretation or enforcement of this Deed, shall continue to have effect after the Deed Termination Date.
5.15
If the IPO has not closed before November 30, 2014, the provisions of this Deed shall terminate on that date and the parties shall
have no further obligations or rights under this Deed from (and including) such date, save that clause 13, together with those other
clauses, the survival of which is necessary for the interpretation or enforcement of this Deed, shall continue to have effect.
6.
RECONCILIATION
6.1
If OMAM and OMGUK are unable to resolve a disagreement with respect to the matters governed by clause 3.3 within the
relevant period designated in this Deed (such disagreement, a “ Reconciliation Dispute ”), the Reconciliation Dispute shall be
submitted for determination to an expert (the “ Expert ”) in the particular area of disagreement mutually acceptable to both parties.
The Expert shall be, or shall be a partner in, a major United States accounting firm or a law firm (other than the Advisory Firm, if one
has been selected prior to the selection of the Expert), and the Expert shall not, and/or the firm that employs the Expert shall not, have
any material relationship with either OMAM or OMGUK or other actual or potential conflict of interest.
6.2
If the parties are unable to agree on an Expert within 15 Business 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: (i) the Termination Schedule or an amendment thereto within 30 Business Days; and (ii) a Tax
Benefit Schedule or an Amended Tax Benefit Schedule within 15 Business Days or as soon thereafter as is reasonably practicable, in
each case after the matter has been submitted to the Expert for resolution.
6.3
If the reconciliation provisions contemplated by this clause 6 are utilised, the fees of the Expert shall be paid in proportion to the
manner in which the dispute is resolved, such that, for example, if the entire dispute is resolved in favour of OMAM, OMGUK shall
pay all of the fees of the Expert, or if the items in dispute are resolved 50% in favour of OMAM and 50% in favour of OMGUK, each
of OMAM and OMGUK shall pay 50% of the fees of the
14
Expert. Any Dispute as to whether a Dispute is a Reconciliation Dispute within the meaning of this clause 6.1 shall be decided by the
Expert. The Expert shall finally determine any Reconciliation Dispute and the determinations of the Expert pursuant to this clause 6
shall be binding on OMAM and OMGUK and may be entered and enforced in any court having jurisdiction.
7.
CONDUCT OF AN ENQUIRY/CLAIM
7.1
If OMAM becomes aware of an Enquiry/Claim, OMAM will:
(a)
provide written notice to OMGUK of the Enquiry/Claim as soon as practicable and, in any event, within 14 Business
Days of the relevant entity becoming so aware;
(b)
procure that any relevant OMAM Subsidiary will give OMGUK information and access to personnel, documents and
records (and its representatives) as OMGUK may reasonably request in relation to the Enquiry/Claim;
(c)
insofar as an Enquiry/Claim relates to a matter that would affect the amount of Realised Tax Benefits paid, or payable,
under this Deed, procure that the relevant OMAM Subsidiary will take such action as OMGUK shall reasonably request to
avoid, dispute, resist, appeal, compromise or defend such portion of the Enquiry/Claim; and
(d)
procure that OMGUK is kept fully informed of any actual or proposed developments, and is provided with copies of all
material correspondence with any Taxing Authority, in relation to the Enquiry/Claim and is given the opportunity to
comment on such developments or documents.
7.2
OMAM will not, and will procure that any relevant OMAM Subsidiaries will not, make any admission of liability in respect of,
or any agreement to settle or compromise, the Enquiry/Claim without the prior written consent of OMGUK, such consent not to be
unreasonably withheld or delayed, provided that it shall not be unreasonable for OMGUK to withhold its consent if, in the written
opinion of a Tax professional of appropriate relevant experience appointed by agreement between OMGUK and OMAM, the relevant
OMAM Subsidiary has a reasonable prospect of successfully defending the Enquiry/Claim or settling or compromising the
Enquiry/Claim in a lower amount.
7.3
If OMGUK does not request OMAM to take any action within 20 Business Days of receiving a notice referred to in clause
7.1(a), OMAM shall be free to conduct, satisfy or settle the Enquiry/Claim (or procure that the Enquiry/Claim is conducted, satisfied
or settled) on such terms as it sees fit.
7.4
OMGUK shall indemnify OMAM and any relevant OMAM Subsidiary to their reasonable satisfaction for all reasonable out of
pocket legal and other professional costs and expenses that are or may be incurred in connection with actions taken pursuant to clause
7.1(b), (c), or (d).
7.5
If an Enquiry/Claim relates to a Pre-IPO Tax Period and a Post-IPO Tax Period, or includes any matter which does not affect the
amount of Realised Tax Benefits paid, or payable, under this Deed, the costs, expenses and fees (other than taxes) relating solely to the
conduct of the Enquiry/Claim shall be shared by OMAM and OMGUK by reference to their respective economic interests in the
Enquiry/Claim or in such other way as may be agreed between them.
15
8.
8.1
LATE PAYMENTS
The amount of all or any portion of any payment not made to OMGUK or OMAM when due under the terms of this Deed shall
be payable together with any interest thereon, computed at the Default Rate and commencing from the date on which such payment
was due and payable.
9.
9.1
NOTICES
Any notice, request, consent and other communication given or made to any party under this Deed shall be in writing and may be
served by hand delivering it or sending it by prepaid first class recorded delivery (including without limitation special delivery) or first
class registered post or fax to the address and for the attention of the relevant party set out in clause 9.2 (or as otherwise notified by
that party under this clause). Any notice shall be deemed to have been received:
(a)
if hand delivered or sent by prepaid first class recorded or registered post or prepaid international recorded airmail, at
the time of delivery; and
(b)
if sent by first class post (other than by prepaid recorded or registered post), two days from the date of posting; and
(c)
in the case of fax, at the time of transmission,
provided that if deemed receipt occurs before 9.00a.m. on a Business Day the notice shall be deemed to have been received at
9.00a.m. on that day, and if deemed receipt occurs after 5.00p.m. on a Business Day, or on any day which is not a Business Day, the
notice shall be deemed to have been received at 9.00a.m. on the next Business Day.
9.2
The addresses and fax numbers of the parties for the purposes of clause 9.1 are:
If to OMAM, to:
c/o Old Mutual (US) Holdings Inc.
200 Clarendon Street, 53rd Floor
Boston, MA 02116
Attention: Stephen H. Belgrad, CFO
Phone No: 617-369-7371
Email: [email protected]
with a copy to:
Bingham McCutchen LLP
399 Park Avenue
New York, New York 10022
(T) (212) 705-7000
(F) (212) 752-5378
Attention: Floyd I. Wittlin, Esq.
Email: [email protected]
if to OMGUK, to:
Old Mutual Plc
5th Floor, Millennium Bridge House
2 Lambeth Hill
London EC4V 4GG, United Kingdom
Attention: Group Company Secretary
Phone No: +44 (0) 20 7002 7109
Email: [email protected]
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Ralph Arditi
Phone No: 212-735-3860
Email: [email protected]
16
or such other address or fax number as may be notified in writing from time to time by the relevant party to the other party. Any
change to the place of service shall take effect five Business Days after notice of the change is received or (if later) on the date (if any)
specified in the notice as the date on which the change is to take place.
9.3
10.
Notice given under this Deed shall not be validly served if sent by email but a copy of all notices given under this Deed must
also be sent via email by the relevant party to their usual, or the most appropriate, contact at the other party at the time at which they
are sent by the formal method.
ASSIGNMENT; AMENDMENTS; WAIVERS; AND SUCCESSORS
10.1
Neither this Deed nor any of the rights, interests or obligations of any party under this Deed may be assigned by such party
without the prior written consent of the other party, except that OMGUK may assign this Deed or its rights and interests under this
Deed to OM plc or any OMAM Subsidiary.
10.2
No amendment, modification, supplement or variation of this Deed (or any document entered into pursuant to or in connection
with this Deed) shall be valid unless it is in writing and signed by or on behalf of each of the parties to this Deed. For the avoidance of
doubt, no amendment, modification, supplement or variation of this Deed shall be valid if made by e-mail. Any failure of a Party to
comply with any obligation, covenant or agreement contained in this Agreement may be waived by the Party entitled to the benefits
thereof only by a written instrument duly executed by the Party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant or agreement shall not operate as a waiver of, or estoppel with respect to, any subsequent
or other failure of compliance.
10.3
All of the terms and provisions of this Deed shall be binding upon, shall inure to the benefit of and shall be enforceable by the
parties hereto and their respective successors and permitted assigns. OMAM 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 OMAM, by written
agreement, expressly to assume and agree to perform this Deed in the same manner and to the same extent that OMAM would be
required to perform if no such succession had taken place.
11.
ARBITRATION
11.1
[Reserved]
11.2
Arbitration
Any dispute arising out of or in connection with this Deed, including any question regarding its existence, validity or termination,
shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (such court, the
“ LCIA Court ”) which are deemed to be incorporated by reference into this clause, save as modified herein:
(i)
(ii)
The seat of arbitration shall be London, England.
There shall be three arbitrators, one nominated by the claimant and one nominated by the respondent within
fifteen (15) days of respondent’s receipt of the claimant’s request for arbitration. If any party has not appointed its
arbitrator within the 15-day period specified herein, such appointment shall be made by the LCIA Court upon the
written request of a party within 15 days of such request. The LCIA Court shall appoint the chairman within 15
17
days of the nomination of the other two members of the tribunal. The hearing shall be held no later than
one-hundred-and-twenty days following the appointment of the third arbitrator.
(iii)
In terms of procedure, the parties agree that:
(A)
The Request shall be treated as the Claimant(s)’ Statement of Case.
(B)
The Statement of Defence shall be sent to the Registrar within 15 days of receipt of notice of
appointment of the third arbitrator.
(C)
A case management hearing shall take place within 10 days of receipt of the Statement of Defence to
determine the procedure leading up to the hearing. The parties shall seek to agree to the procedure
between them, consistent with the provisions of this clause 11.2.
(D)
The Statement of Reply (if any) shall be sent to the Registrar within 15 days of receipt of the
Statement of Defence.
(E)
The Statement of Reply to Counterclaim (if any) shall be sent to the Registrar within 15 days of
receipt of the Statement of Reply.
(F)
The arbitral tribunal shall exercise its power to order the parties to supply copies of any documents in
their possession, custody or power that are relevant to the subject matter of the dispute taking into account
the parties’ desire that the arbitration be conducted expeditiously and cost effectively. All disclosure of
documents shall be completed within sixty (60) days of the appointment of the third arbitrator.
(G)
The parties agree that they shall have the right to be heard orally on the merits of the dispute.
(iv)
By agreeing to arbitration, the parties do not intend to deprive a court of its jurisdiction to issue a pre-arbitral
injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any
award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the
arbitral tribunal shall have full authority to grant provisional remedies, to direct the parties to request that any court
modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of
any party to respect the arbitral tribunal’s orders to that effect. For the purpose of any provisional relief
contemplated hereunder, the parties hereby submit to the non-exclusive jurisdiction of the English Courts. Each
party unconditionally and irrevocably waives any objections which they may have now or in the future to the
jurisdiction of the English Courts including objections by reason of lack of personal jurisdiction, improper venue, or
inconvenient forum.
(v)
The award shall be in writing, shall state the findings of fact and conclusions of law on which it is based, shall
be final and binding and shall be the sole and exclusive remedy between the parties regarding any claims or
counterclaims presented to the arbitral tribunal. Judgment upon any award may be entered in any court having
jurisdiction.
18
(vi)
The parties will bear equally all fees, costs, disbursements and other expenses of the arbitration, and each party
shall be solely responsible for all fees, costs, disbursements and other expenses incurred in the preparation and
prosecution of their own case; provided that in the event that a party fails to comply with the orders or decision of
the arbitral tribunal, then such noncomplying party shall be liable for all costs and expenses (including attorney fees)
incurred by the other party in its effort to obtain either an order to compel, or an enforcement of an award, from a
court of competent jurisdiction.
(vii)
The arbitral tribunal shall have no authority to award punitive, exemplary or multiple damages or any other
damages not measured by the prevailing parties’ actual damages.
(viii)
All notices by one party to another in connection with the arbitration shall be in accordance with the provisions
of clause 9 hereof, except that all notices for a demand for arbitration made pursuant to this clause 11.2(viii) must be
made by personal delivery or receipted overnight courier. This agreement to arbitrate shall be binding upon the
successors and permitted assigns of each party. This Deed and the rights and obligations of the parties shall remain
in full force and effect pending the award in any arbitration proceeding hereunder.
11.3
Confidentiality
Except to the extent necessary to compel arbitration or in connection with arbitration of any dispute under this Deed, or for
enforcement of an arbitral award, information concerning (i) the existence of an arbitration pursuant to this clause 11, (ii) any
documentary or other evidence given by a Party or a witness in the arbitration, or (iii) the arbitration award, may not be disclosed by
the tribunal administrator, the arbitrators, any Party or its counsel to any Person not connected with the proceeding unless required by
law or by a court or competent regulatory body, and then only to the extent of disclosing what is legally required. A Party filing any
document arising out of or relating to any arbitration in court shall seek from the court confidential treatment for such document and
provide notice thereof to the non-disclosing Party.
11.4
Conduct during Dispute Resolution
The Parties shall continue the performance of their respective obligations under this Deed that are not the subject of dispute during the
resolution of any dispute or agreement, including during any period of arbitration, unless and until this Deed is terminated or expires
in accordance with its terms and conditions.
12.
WITHHOLDING
Either party shall be entitled to deduct and withhold from any payment payable pursuant to this Deed such amounts as that party is
required by law to deduct and withhold with respect to the making of such payment. To the extent that amounts are so withheld and
paid over to the appropriate Taxing Authority by the relevant party, such withheld amounts shall be treated for all purposes of this
Deed as having been paid to the other party.
13.
CONFIDENTIALITY
Each party undertakes that hereafter it will treat all information provided to it by any other party with the same degree of care as such
party treats its own information of the same nature; provided that each party hereto may disclose to any and all persons, without
limitation of any
19
kind, the tax treatment and tax structure of the transactions described in this Deed for the relevant party, and all materials of any kind
(including opinions or other tax analyses) that are provided to such party relating to such tax treatment and tax structure.
14.
NO JOINT VENTURE
Nothing in this Deed is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to
authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise
to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any
obligation or liability and the exercise of any right or power).
15.
COUNTERPARTS
This Deed may be executed in any number of counterparts, including electronic counterparts, and by the parties to it on separate
counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. The Deed is
not effective until each party has executed at least one counterpart.
16.
ENTIRE DEED; NO THIRD-PARTY BENEFICIARIES.
16.1
This Deed, including any schedules hereto constitutes the entire agreement and understanding of the parties relating to the subject
matter of this Deed and supersedes any previous agreement or understanding between the parties in relation to such subject
matter. Each of the parties acknowledges and agrees that in entering into this Deed, it has not relied on any statement, representation,
warranty, understanding, undertaking, promise or assurance of any person (whether party to this Deed or not) which is not expressly
set out in this Deed
16.2
The parties acknowledge that they have been independently advised and, having regard to the circumstances and to the other
provisions of this Deed, they consider this clause 16 to be fair and reasonable.
16.3
Nothing in this Deed, express or implied, is intended to or shall confer upon any person other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies hereunder. A person who is not a party to this Deed shall have no
right under the Contracts (Rights of Third parties) Act 1999 to rely upon or enforce any term of this Deed. This clause shall not affect
any right or remedy of a third party which exists or is available apart from that Act.
17.
GOVERNING LAW
The validity, construction and performance of this Deed (and any claim, dispute or matter arising under or in connection with it or its
enforceability) and any non-contractual obligations arising out of or in connection with it, shall be governed by and construed in
accordance with the law of England and Wales.
18.
SEVERANCE
18.1
If any provision of this Deed shall be found to be invalid or unenforceable, such invalidity, illegality or unenforceability shall not
affect the other provisions of this Deed which shall remain in full force and effect.
18.2
If any provision of this Deed is so found to be invalid, illegal or unenforceable but would be valid or enforceable if some part of
the provision were deleted, the provision in question shall apply with such deletion(s) as may be necessary to make it valid.
20
18.3
19.
The parties shall, in the circumstances referred to in clause 18.1, and if clause 18.2 does not apply, use good faith, commercially
reasonable endeavours to find and effect an alternative means to achieve the same or substantially the same result as that contemplated
by the invalid, illegal or unenforceable provision.
REMEDIES.
19.1
The parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage would result, no
adequate remedy at law would exist and damages would be difficult to determine in the event that any provision of this Deed is not
performed in accordance with its specific terms or is otherwise breached. Therefore, in addition to, and not in limitation of, any other
remedy available to any party, and notwithstanding the provisions of clause 8.2, an aggrieved Party under this Deed is entitled to
specific performance of the terms hereof and immediate injunctive relief, without the necessity of proving the inadequacy of money
damages as a remedy. Neither party shall be required to obtain or furnish any bond or similar instrument in connection with or as a
condition to obtaining or seeking any such remedy. For the avoidance of doubt, nothing in this Deed shall diminish the availability of
specific performance of the obligations under this Deed or any other injunctive relief.
19.2
Such remedies, and any and all other remedies provided for in this Deed, shall be cumulative in nature and not exclusive and shall
be in addition to any other remedies whatsoever which any party may otherwise have. Each of the parties hereby acknowledges and
agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute
performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the parties. Each party hereby
further agrees that in the event of any action by the other party for specific performance or injunctive relief, it will not assert that a
remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or
violation should not be available on the grounds that money damages are adequate or any other grounds.
20.
FURTHER ASSURANCES
Each party shall, on being required to do so by any other party, perform or procure the performance of all such acts and/or execute
and/or deliver or procure the execution and/or delivery of all such documents (in each case at its own expense), as may be required by
law or as any other party may from time to time reasonably require in order to implement and give full effect to this Deed.
[Signature page follows.]
21
IN WITNESS WHEREOF, this document has been executed as a Deed and is delivered and takes effect on the date first written
above.
EXECUTED AND DELIVERED
AS A DEED by
OM ASSET MANAGEMENT PLC
acting by its authorised signatory
)
)
)
)
In the presence of:
)
Signature of witness:
/s/ Vance Chapman
Name of witness (print) :
Vance Chapman
Witness Address:
41 Lothbury
/s/ Julian Roberts
(authorised signatory)
/s/ Martin C. Murray
(authorised signatory)
London EC2R 7HF
EXECUTED AND DELIVERED
AS A DEED by
OM GROUP (UK) LIMITED
acting by its authorised signatory
)
)
)
)
In the presence of:
)
Signature of witness:
/s/ Sophie Donnithorne-Tait
Name of witness (print) :
Sophie Donnithorne-Tait
Witness Address:
41 Lothbury
London EC2R 7HF
Schedule 1
Form of Tax Benefit Schedule
Schedule 2
Form of Termination Schedule
Exhibit 10.5
Execution Copy
REGISTRATION RIGHTS AGREEMENT
dated as of
October 8, 2014
by and among
OM Asset Management plc,
OM Group (UK) Limited
and
Old Mutual plc
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
1
1.1
Definitions
1
1.2
Interpretation
3
ARTICLE 2
REGISTRATION RIGHTS
4
2.1
Shelf Registration
4
2.2
Demand Registrations
5
2.3
Priority
5
2.4
Piggyback Registrations
6
2.5
Lock-up Agreements
6
2.6
Registration Procedures
7
2.7
Registration Expenses
10
2.8
Underwritten Offering
10
2.9
Suspension of Registration
10
2.10
Indemnification
11
2.11
Conversion of Other Securities
13
2.12
Rule 144; Rule 144A
13
2.13
Transfer of Registration Rights
13
ARTICLE 3
PROVISIONS APPLICABLE TO ALL DISPOSITIONS OF REGISTRABLE SECURITIES
13
3.1
Underwriter Selection
13
3.2
Cooperation with Sales
13
3.3
Expenses of Offerings
13
3.4
Further Assurances
14
ARTICLE 4
MISCELLANEOUS
14
4.1
Term
14
4.2
Other Holder Activities
14
4.3
No Inconsistent Agreements
14
4.4
Amendments and Waivers
14
4.5
No Third Party Beneficiaries
14
4.6
Entire Agreement
14
4.7
Severability
14
4.8
Counterparts
14
4.9
Arbitration
14
4.10
Conduct During Dispute Resolution
16
4.11
Remedies; Attorney’s Fees
16
4.12
GOVERNING LAW
16
i
4.13
CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL
17
4.14
No Assignment
17
4.15
Further Actions
17
4.16
Notice
17
ii
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of October 8, 2014 (this “ Agreement ”), is by and among OM Asset Management plc, a
company incorporated and registered in England and Wales with company number 09062478 (the “ Company ”), OM Group (UK) Limited, a
company incorporated and registered in England and Wales with company number 3591572 (“ OMGUK ”), and Old Mutual plc, a company
incorporated and registered in England and Wales with company number 3591559 (“ OM plc ”, and together with the Company and OMGUK,
each a “ Party ” and, collectively, the “ Parties ”).
WHEREAS , OM plc is the indirect owner of all of the issued and outstanding Ordinary Shares (as defined herein) of the Company
immediately prior to the date hereof through its wholly-owned Subsidiary, OMGUK;
WHEREAS , OMGUK intends to sell a proportion of the Company’s ordinary shares, nominal value $0.001, (the “ Ordinary Shares ”)
in an IPO (as defined herein);
WHEREAS, immediately following completion of the IPO, OMGUK will continue to own indirectly a majority of the outstanding
Ordinary Shares; and
WHEREAS , in connection with the IPO, the Company has agreed to provide OMGUK and OM plc, as applicable, certain rights as set
forth herein.
NOW, THEREFORE , in consideration of the mutual promises and covenants set forth herein and for good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
Article 1
DEFINITIONS
1.1
Definitions . In this Agreement, the following terms shall have the following meanings:
(a)
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under
common control with, such other Person. For purposes of this definition, “ control, ” (including, with correlative meanings, the terms “
controlled by ” and “ under common control with ”) when used with respect to any Person, means the possession directly or indirectly of the
power to direct or cause the direction of the management or policies of such Person, whether through ownership of voting securities or
partnership or other ownership interests, by contract or otherwise.
(b)
Subsidiaries).
(c)
“Affiliated Group” means OMGUK, OM plc and their respective Subsidiaries (excluding the Company and its
“Board of Directors” means the Board of Directors of the Company from time to time.
(d)
“Business Day” means any day except (i) a Saturday, (ii) a Sunday, (iii) any day on which the principal office of the
Company, OM plc or OMGUK is not open for business, and (iv) any other day on which commercial banks in New York, New York or in
London, England are authorized or obligated by law or executive order to close.
(e)
“Company Outside Counsel” means one counsel selected by the Company to act on its behalf.
(f)
“Covered Person” has the meaning set forth in Section 2.10(a).
(g)
“Demand Registration” has the meaning set forth in Section 2.2(a).
(h)
“Designated Holder” means any member of the Affiliated Group or any other Holder holding Ordinary Shares of the
Company constituting not less than 7% of the outstanding Ordinary Shares of the Company.
(i)
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
1
(j)
“Fund” means any pooled investment vehicle for which any Subsidiary of the Company, directly or indirectly, provides
investment advisory or sub-advisory services, or serves as the general partner, managing member or in any similar capacity (including any
master or feeder fund, parallel fund or other alternative investment vehicle or third party co-investment vehicle).
(k)
“Holder” means OMGUK, OM plc and any permitted transferee of Registrable Securities to whom registration rights
have been transferred under Section 2.13 hereof.
(l)
“Holders’ Counsel” means, if any member of the Affiliated Group is participating in an offering of Registrable
Securities, one counsel selected by OM plc for the Holders participating in such offering or otherwise and one counsel selected by the Holders
of a majority of the Registrable Securities included in such offering.
(m)
“IPO” means the initial underwritten public offering of Ordinary Shares pursuant to a Registration Statement filed in
accordance with the Securities Act.
(n)
“Material Disclosure Event” means, as of any date of determination, any pending or imminent event relating to the
Company or any of its Subsidiaries that the Board of Directors reasonably determines in good faith, after consultation with Company Outside
Counsel, (i) would require disclosure of material, non-public information relating to such event in any Registration Statement under which
Registrable Securities may be offered and sold (including documents incorporated by reference therein) in order that such Registration
Statement would not be materially misleading and (ii) would not otherwise be required to be publicly disclosed by the Company at that time in
a periodic report to be filed with or furnished to the SEC under the Exchange Act but for the filing of such Registration Statement.
(o)
“OMGUK Lock-Up Agreement” means the “lock-up” agreement entered into by OMGUK and described in that certain
Underwriting Agreement, dated as of September 29, 2014, by and among the Company, OMGUK and the underwriters party thereto.
(p)
“Ordinary Shares” has the meaning set forth in the recitals.
(q)
“Person” means any individual, corporation, partnership, joint venture, limited liability company, association or other
business entity and any trust, unincorporated organization or political subdivision thereof.
(r)
“Piggyback Registration” means any registration of Registrable Securities under the Securities Act requested by a
Holder in accordance with Section 2.4(a).
(s)
“register,” “registered” and “registration” refers to a registration made effective by preparing and filing a Registration
Statement with the SEC in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such Registration
Statement, and compliance with applicable state or foreign securities laws of such states or countries in which Holders notify the Company of
their intention to offer Registrable Securities.
(t)
“Registration Expenses ” has the meaning set forth in Section 2.7.
(u)
“Registrable Securities ” means all Ordinary Shares held by a Holder and any equity securities issued or issuable
directly or indirectly with respect to any such securities by way of conversion or exchange thereof or share dividend or share split or in
connection with a combination of shares, recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or other
reorganization; provided that, any securities constituting Registrable Securities will cease to be Registrable Securities when (i) such securities
are sold in a private transaction in which the transferor’s rights under this Agreement are not assigned to the transferee of the securities,
(ii) with respect to Registrable Securities held by any Holder other than a Designated Holder, such securities are sold pursuant to an effective
Registration Statement or are eligible to be sold without volume or manner of sale restrictions pursuant to Rule 144 or (iii) with respect to
Registrable Securities held by a Designated Holder, such securities are sold pursuant to an effective Registration Statement or pursuant to
Rule 144 (and such Registrable Securities are no longer “restricted securities” as defined under Rule 144).
2
(v)
“Registration Statement ” means any registration statement of the Company under the Securities Act that permits the
public offering of any of the Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments and
supplements to such registration statement, all exhibits, all material incorporated by reference or deemed to be incorporated by reference in
such registration statement and all other documents filed with the SEC to effect a registration under the Securities Act.
(w)
“Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.
(x)
“Rule 144A” means Rule 144A promulgated by the SEC under the Securities Act.
(y)
“Rule 405 ” means Rule 405 promulgated by the SEC under the Securities Act.
(z)
“Rule 415” means Rule 415 promulgated by the SEC under the Securities Act.
(aa)
“SEC” means the United States Securities and Exchange Commission.
(bb)
“Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
(cc)
Statement.
“Selling Holder” means a Holder that holds Registrable Securities registered (or to be registered) in a Registration
(dd)
“Selling Expenses ” means all underwriting discounts, selling commissions and transfer taxes applicable to the sale of
Registrable Securities hereunder.
(ee)
“Shareholder Agreement” means the Shareholder Agreement, dated as of the date hereof, by and among the Company,
OMGUK and OM plc, to which this Agreement is attached as Annex A.
(ff)
to Rule 415.
“Shelf Registration Statement ” means a Registration Statement that contemplates offers and sales of securities pursuant
(gg)
“Short-Form Registration Statement ” means Form S-3 or any successor or similar form of registration statement
pursuant to which the Company may incorporate by reference its filings under the Exchange Act made after the date of effectiveness of such
registration statement.
(hh)
“Subsidiaries” means, with respect to a Person, any corporation, limited liability company, partnership, association,
business, trust, joint venture, business entity or other entity of any kind or nature, of which more than fifty percent (50%) of either the equity
interests or the voting control is, directly or indirectly through Subsidiaries or otherwise, beneficially owned by such Person, or of which such
Person or any Subsidiary serves as the general partner (in the case of a limited partnership) or the manager or managing member (in the case of
a limited liability company); provided that (i) no Fund or any Subsidiary of a Fund shall be a Subsidiary for the purposes of this Agreement;
(ii) the Company and its Subsidiaries will not be deemed to be Affiliates or Subsidiaries of OM plc or OMGUK, and OMGUK and OM plc and
their Subsidiaries (other than the Company and its Subsidiaries) will not be deemed to be Affiliates or Subsidiaries of the Company; and
(iii) for purposes of this definition, notwithstanding anything to the contrary contained herein, each of Heitman LLC and Investment
Counselors of Maryland, LLC shall be considered “Subsidiaries” of the Company.
(ii)
“Suspension ” has the meaning set forth in Section 2.9.
(jj)
“Underwritten Offering” means a discrete registered offering of securities conducted by one or more underwriters
pursuant to the terms of an underwriting agreement.
1.2
Interpretation .
(a)
In this Agreement, except as the context may otherwise require, references to:
3
(i)
(ii)
(iii)
any statute, statutory provision or regulation are to the statute, statutory provision or regulation as amended,
modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations
promulgated under the statute) and to any section of any statute or regulation includes any successor to the section;
any governmental authority includes any successor to that governmental authority; and
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status,
court, official or any legal concept or thing shall, in respect of any jurisdiction other than that of England, be deemed
to include what most nearly approximates in that jurisdiction to the English legal term.
(b)
The words “hereby”, “herein,” “hereof,” “hereunder,” “hereto” and similar terms are to be deemed to refer to this
Agreement as a whole and not to any specific Section.
(c)
The words “include,” “includes” or “including” are to be deemed followed by the words “without limitation.” Any
singular term in this Agreement will be deemed to include the plural, and any plural term the singular. All pronouns and variations of
pronouns will be deemed to refer to the feminine, masculine or neuter, singular or plural, as the identity of the Person referred to may require.
(d)
The table of contents and Article and Section headings are for reference purposes only and do not limit or otherwise
affect any of the substance of this Agreement.
(e)
It is the intention of the Parties that every covenant, term and provision of this Agreement shall be construed simply
according to its fair meaning and not strictly for or against any Party, it being understood and agreed that the Parties to this Agreement are
sophisticated and have had adequate opportunity and means to retain counsel to represent their respective interests and to otherwise negotiate
the terms and provisions of this Agreement. Accordingly, the Parties hereby waive, to the fullest extent permitted by Applicable Law, the
benefit of any Applicable Law that would require that in cases of uncertainty, the language of a contract should be strictly construed against, or
most strongly construed against, the Party who drafted such language.
(f)
No provision of this Agreement is to be construed to require, directly or indirectly, any Person to take any action, or
omit to take any action, to the extent such action or omission would violate Applicable Law.
(g)
“Writing,” “written” and comparable terms refer to printing, typing, and other means of reproducing words (including
electronic media) in a visible form.
(h)
All references to “$” or “dollars” mean the lawful currency of the United States of America.
(i)
All terms not otherwise defined herein shall have the meaning given to such terms in the Shareholder Agreement.
Article 2
REGISTRATION RIGHTS
2.1
Shelf Registration .
(a)
Filing. At any time after the date that is one year following the date hereof (or, if sooner, the date on which the
Company first becomes eligible to use a Short Form Registration Statement as a Shelf Registration Statement), upon the written request of any
Holder, the Company shall promptly (but no later than forty-five (45) days after the receipt of such request) file with the SEC a Shelf
Registration Statement (which, if permitted, shall be an “automatic shelf registration statement” as defined in Rule 405) relating to the offer and
sale by such Holder of all or part of the Registrable Securities. If at any time while Registrable Securities are outstanding, the Company files
any Shelf Registration Statement for its own benefit or for the benefit of holders of any of its securities other than the Holders, the Company
shall use its reasonable best efforts to include in such Shelf Registration Statement
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such disclosures as may be required under the Securities Act to ensure that the Holders may sell their Registrable Securities pursuant to such
Shelf Registration Statement through the filing of a prospectus supplement rather than a post-effective amendment.
(b)
Effectiveness. The Company shall use its reasonable best efforts to (i) cause such Shelf Registration Statement to be
declared effective under the Securities Act as promptly as practicable after such Shelf Registration Statement is filed and (ii) keep such Shelf
Registration Statement (or a replacement Shelf Registration Statement) continuously effective and in compliance with the Securities Act and
usable for the resale of Registrable Securities until such time as there are no Registrable Securities remaining.
(c)
Sales by Holders. The plan of distribution contained in the Shelf Registration Statement referred to in this Section 2.1
(or related prospectus supplement) shall be determined by OMGUK, if any member of the Affiliated Group is a requesting Holder for such
Shelf Registration Statement, or otherwise by the other requesting Holder or Holders. Each Holder shall be entitled to sell Registrable
Securities pursuant to the Shelf Registration Statement referred to in this Section 2.1 from time to time and at such times as such Holder shall
determine. Such Holder shall promptly advise the Company of its intention so to sell Registrable Securities pursuant to the Shelf Registration
Statement.
(d)
Underwritten Offering. If any Holder intends to sell Registrable Securities pursuant to the Shelf Registration Statement
referred to in this Section 2.1 through an Underwritten Offering, the Company shall take all steps to facilitate such an offering, including the
actions required pursuant to Section 2.6 and Section 3, as appropriate; provided , that the Company will not be required to facilitate such
Underwritten Offering unless so requested by such Holder and unless the expected aggregate gross proceeds from such offering are at least $50
million.
2.2
Demand Registrations .
(a)
Right to Request Additional Demand Registrations. At any time after the expiration of the OMGUK Lock-Up
Agreement, any Holder may, by providing a written request to the Company, request to sell all or part of the Registrable Securities pursuant to
a Registration Statement separate from a Shelf Registration Statement (a “ Demand Registration ”). Each request for a Demand Registration
shall specify the kind and aggregate amount of Registrable Securities to be registered and the intended methods of disposition thereof (which, if
not specified, shall be by way of Underwritten Offering). Promptly after its receipt of a request for a Demand Registration (but in any event
within ten (10) days), the Company will give written notice of such request to all other Holders. Within thirty (30) days after the date the
Company has given the Holders notice of the request for Demand Registration, the Company shall commence the registration, in accordance
with Section 2.6 of this Agreement, of all Registrable Securities that have been requested to be registered in the request for Demand
Registration and that have been requested by any other Holders by written notice to the Company within fifteen (15) days after the Company
has given the Holders notice of the request for Demand Registration; provided , that the Company will not be required to effect a Demand
Registration unless the expected aggregate gross proceeds from the offering of the Registrable Securities to be registered in connection with
such Demand Registration are at least $50 million.
(b)
Limitations on Demand Registrations. Subject to Section 2.2(a) and this Section 2.2(b), any Holder will be entitled to
request an unlimited number of Demand Registrations; provided that the Company will not be obligated to effect more than one Demand
Registration which, for the avoidance of doubt, shall be in addition to any registration on a Shelf Registration Statement, in any six-month
period. Any Holder shall be entitled to participate in a Demand Registration initiated by any other Holder.
(c)
Withdrawal. A Holder may, by written notice to the Company, withdraw its Registrable Securities from a Demand
Registration at any time prior to the effectiveness of the applicable Registration Statement. Upon receipt of notices from all applicable Holders
to such effect, the Company shall cease all efforts to seek effectiveness of the applicable Registration Statement.
2.3
Priority . If a registration pursuant to Section 2.1 or 2.2 above is an Underwritten Offering and the managing
underwriters of such proposed Underwritten Offering advise the Holders in writing that, in their opinion, the number of securities requested to
be included in such Underwritten Offering exceeds the number which can be
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sold in such offering without being likely to have a significant adverse effect on the price, timing or distribution of the securities offered or the
market for the securities offered, then the number of securities to be included in such Underwritten Offering shall be reduced in the following
order of priority: first, there shall be excluded from the Underwritten Offering any securities to be sold for the account of any selling
securityholder other than the Holders; second, there shall be excluded from the Underwritten Offering any securities to be sold for the account
of the Company; and finally, the number of Registrable Securities of any Holders that have been requested to be included therein shall be
reduced, pro rata based on the number of Registrable Securities owned by each such Holder, in each case to the extent necessary to reduce the
total number of securities to be included in such offering to the number recommended by the managing underwriters.
2.4
Piggyback Registrations .
(a)
Piggyback Request. Whenever the Company proposes to register any of its securities under the Securities Act or
equivalent non-U.S. securities laws (other than (i) in the IPO, (ii) pursuant to a Demand Registration, (iii) pursuant to a registration statement
on Form S-4 or any similar or successor form or (iv) pursuant to a registration solely relating to an offering and sale to employees or directors
of the Company pursuant to any employee share plan or other employee benefit plan arrangement), and the registration form to be filed may be
used for the registration or qualification for distribution of Registrable Securities, the Company will give prompt written notice to all Holders of
its intention to effect such a registration (but in no event less than twenty (20) days prior to the proposed date of filing of the applicable
Registration Statement) and, subject to Section 2.4(c), will include in such registration all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within fifteen (15) days after the date the Company’s notice is given to such
Holders (a “ Piggyback Registration ”). There shall be no limitation on the number of Piggyback Registrations that the Company shall be
required to effect under this Section 2.4.
(b)
Withdrawal and Termination. Any Holder that has made a written request for inclusion in a Piggyback Registration
may withdraw its Registrable Securities from such Piggyback Registration by giving written notice to the Company on or before the fifth (5th)
day prior to the planned effective date of such Piggyback Registration. The Company may, without prejudice to the rights of Holders to request
a registration pursuant to Section 2.1 or 2.2 hereof, terminate or withdraw any registration under this Section 2.4 prior to the effectiveness of
such registration, whether or not any Holder has elected to include Registrable Securities in such registration, and, except for the obligation to
pay or reimburse Registration Expenses, the Company will have no liability to any Holder in connection with such termination or withdrawal.
(c)
Priority of Piggyback Registrations. If the managing underwriters advise the Company and Holders of Registrable
Securities in writing that, in their opinion, the number of securities requested to be included in an Underwritten Offering to be effected pursuant
to a Piggyback Registration exceeds the number which can be sold in such offering without being likely to have a significant adverse effect on
the price, timing or distribution of the securities offered or the market for the securities offered, then the securities to be included in such
Underwritten Offering shall be reduced pro rata based, in the case of the Holders, on the number of Registrable Securities owned by each
Holder and included in such Underwritten Offering to be effected pursuant to a Piggyback Registration, and in the case of the Company, the
number of securities to be sold for the account of the Company in such Underwritten Offering, to the extent necessary to reduce the total
number of Registrable Securities to be included in such offering to the number recommended by the managing underwriters. No registration of
Registrable Securities effected pursuant to a request under this Section 2.4 shall be deemed to have been effected pursuant to Sections 2.1 or
2.2 or shall relieve the Company of its obligations under Sections 2.1 or 2.2.
2.5
Lock-up Agreements . Each of the Company and the Holders agrees, upon notice from the managing underwriters in
connection with any registration for an Underwritten Offering of the Company’s securities (other than pursuant to the IPO or pursuant to a
registration statement on Form S-4 or any similar or successor form or pursuant to a registration solely relating to an offering and sale to
employees or directors of the Company pursuant to any employee share plan or other employee benefit plan arrangement), not to effect (other
than pursuant to such registration) any public sale or distribution of Registrable Securities, including, but not limited to, any sale pursuant to
Rule 144, or make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of, any Registrable Securities, any other
equity securities of the Company or any securities convertible into or exchangeable or exercisable for any equity securities of the Company
without the prior written consent of the
6
managing underwriters during such period as reasonably requested by the managing underwriters (but in no event longer than the seven
(7) days before and the ninety (90) days after the pricing of such Underwritten Offering); provided , that such restrictions shall not apply in any
circumstance to (i) securities acquired by a Holder in the public market subsequent to the IPO, (ii) distributions-in-kind to a Holder’s limited or
other partners, members, shareholders or other equity holders, or (iii) transfers by a member of the Affiliated Group to another member of the
Affiliated Group. Notwithstanding the foregoing, no holdback agreements of the type contemplated by this Section 2.5 shall be required of
Holders (A) unless each of the Company’s directors, executive officers and holders of 7% or more of the outstanding Ordinary Shares agrees to
be bound by a substantially identical holdback agreement for at least the same period of time; or (B) that restrict the offering or sale of
Registrable Securities pursuant to a Demand Registration. Notwithstanding this Section 2.5, no Holder shall be obligated to agree to any
lock-up period during which it would be prevented from selling all or any portion of its Registrable Securities in privately negotiated
transactions that are not executed through the facilities of a securities exchange.
2.6
Registration Procedures . If and whenever the Company is required to effect the registration of any Registrable
Securities pursuant to this Agreement, the Company shall use its reasonable best efforts to effect and facilitate the registration, offering and sale
of such Registrable Securities in accordance with the intended method of disposition thereof as promptly as is practicable, and the Company
shall as expeditiously as possible:
(a)
prepare and file with the SEC (within thirty (30) days after the date on which the Company has given Holders notice of
the request for Demand Registration) a Registration Statement with respect to such Registrable Securities, make all required filings required in
connection therewith and thereafter and (if the Registration Statement is not automatically effective upon filing) use its reasonable best efforts
to cause such Registration Statement to become effective; provided that before filing a Registration Statement or any amendments or
supplements thereto, the Company will furnish to Holders’ Counsel for such registration copies of all such documents proposed to be filed,
which documents will be subject to review of such counsel at the Company’s expense, and give the Holders participating in such registration an
opportunity to comment on such documents and keep such Holders reasonably informed as to the registration process; provided, further, that if
the Board of Directors determines in its good faith judgment that registration at the time would require the inclusion of pro forma financial or
other information, which requirement the Company is reasonably unable to comply with, then the Company may defer the filing (but not the
preparation) of the Registration Statement which is required to effect the applicable registration for a reasonable period of time (but not in
excess of forty-five (45) days).
(b)
(i) prepare and file with the SEC such amendments and supplements to any Registration Statement as may be necessary
to keep such Registration Statement effective for a period of either (A) not less than 6 months or, if such Registration Statement relates to an
Underwritten Offering in the case of a Demand Registration, such longer period as in the opinion of counsel for the managing underwriters a
prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or the maximum
period of time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period ending when all of the
Registrable Securities covered by such Registration Statement have been disposed of (but in any event not before the expiration of any longer
period required under the Securities Act) and (ii) comply with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement;
(c)
furnish to each Selling Holder such number of copies, without charge, of any Registration Statement, each amendment
and supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such
other documents as such Selling Holder may reasonably request including in order to facilitate the disposition of the Registrable Securities
owned by such Selling Holder;
(d)
use its reasonable best efforts to register or qualify, including, by way of preparation, filing and approval of a
prospectus, any Registrable Securities under such other securities or blue sky laws of such jurisdictions as any Selling Holder, and the
managing underwriters, if any reasonably request and do any and all other acts and things that may be necessary or reasonably advisable to
enable such Selling Holder and each underwriter, if any, to consummate the disposition of the seller’s Registrable Securities in such
jurisdictions (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
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(e)
use its reasonable best efforts to cause all Registrable Securities covered by any Registration Statement to be registered
with or approved by such other governmental agencies, authorities or self-regulatory bodies as may be necessary or reasonably advisable in
light of the business, operations and jurisdiction of incorporation of the Company to enable the Selling Holders to consummate the disposition
of such Registrable Securities in accordance with the intended method or methods of disposition thereof;
(f)
during any time when a prospectus relating thereto is required to be delivered under the Securities Act, promptly notify
each Selling Holder and Holder’s Counsel upon discovery that, or upon the discovery of the happening of any event as a result of which, the
prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of
the circumstances under which they were made and, as promptly as practicable, prepare and furnish to such Selling Holders a reasonable
number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements
therein not misleading in the light of the circumstances under which they were made;
(g)
promptly notify each Selling Holder and Holders’ Counsel (i) when the Registration Statement, any prospectus
supplement or any post-effective amendment to the Registration Statement has been filed and, with respect to such Registration Statement or
any post-effective amendment, when the same has become effective, (ii) of any written comments by the SEC or of any request by the SEC for
amendments or supplements to such Registration Statement or to amend or to supplement any prospectus contained therein or for additional
information, and (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation
or threatening of any proceedings for any of such purposes;
(h)
cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the
Company are then listed or, if no similar securities issued by the Company are then listed on any securities exchange, use its reasonable best
efforts to cause all such Registrable Securities to be listed on the New York Stock Exchange;
(i)
provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such
Registration Statement, and, if required, obtain a CUSIP number for such Registrable Securities not later than such effective date;
(j)
enter into such customary agreements (including underwriting agreements with customary provisions in such forms as
may be requested by the managing underwriters) and take all such other actions as the Selling Holders or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a share split or a
combination of shares);
(k)
make available for inspection by any Selling Holder, Holders’ Counsel, any underwriter participating in any disposition
pursuant to the applicable Registration Statement and any attorney, accountant or other agent retained by any such Selling Holder or
underwriter, all financial and other records, pertinent corporate documents and documents relating to the business of the Company reasonably
requested by such Selling Holder, cause the Company’s officers, directors, employees and independent accountants to supply all information
reasonably requested by any such Selling Holder, Holders’ Counsel, underwriter, attorney, accountant or agent in connection with such
Registration Statement and make senior management of the Company available for customary due diligence and drafting activity; provided,
that any such Person gaining access to information or personnel pursuant to this Section 2.6(k) shall (i) reasonably cooperate with the Company
to limit any resulting disruption to the Company’s business and (ii) agree in a customary manner to protect the confidentiality of any
information regarding the Company which the Company determines in good faith to be confidential, and of which determination such Person is
notified, unless (A) the release of such information is requested or required by deposition, interrogatory, requests for information or documents
by a governmental entity, subpoena or similar process, (B) such information is or becomes publicly known without a breach of this Agreement,
(C) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company or (D) such
information is independently developed by such Person;
8
(l)
otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months
beginning with the first day of the Company’s first full calendar quarter after the effective date of the applicable Registration Statement, which
earnings statement will satisfy the provisions of Section 11(a) of the Securities Act (including, at the Company’s option, Rule 158 thereunder);
(m)
in the case of an Underwritten Offering, promptly incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriters or any Selling Holder reasonably requests to be included therein, the purchase price being paid
therefor by the underwriters and any other terms of the Underwritten Offering of the Registrable Securities to be sold in such offering, and
promptly make all required filings of such prospectus supplement or post-effective amendment;
(n)
in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order
suspending or preventing the use of any related prospectus or ceasing trading of any securities included in such Registration Statement for sale
in any jurisdiction, use every reasonable effort to promptly obtain the withdrawal of such order;
(o)
make senior management of the Company available to assist to the extent requested by the managing underwriters of
any Underwritten Offering to be made pursuant to such registration in the marketing of the Registrable Securities to be sold in the Underwritten
Offering, including the participation of such members of the Company’s senior management in “road show” presentations and other customary
marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the Underwritten
Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling
efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its Ordinary Shares;
(p)
obtain all consents of independent public accountants required to be included in the Registration Statement and, in
connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the underwriters and to the
Selling Holders, dated the effective date of the Registration Statement (and, in the case of each Underwritten Offering, dated the date of each
closing under the underwriting agreement for such offering), signed by the Company’s independent public accountants in customary form and
covering such matters of the type customarily covered by comfort letters as the underwriters or OMGUK, if any member of the Affiliated
Group is Selling Holder in such offering, or otherwise by the Holders of a majority of the Registrable Securities being sold in such offering,
reasonably request;
(q)
provide all legal opinions from Company Outside Counsel required to be included in the Registration Statement, and, in
connection with each closing of a sale of Registrable Securities, provide legal opinions from Company Outside Counsel, addressed to the
underwriters and the Selling Holders, dated the effective date of each Registration Statement and each amendment and supplement thereto
(and, if such registration includes an Underwritten Offering, dated the date of the closing under the underwriting agreement), with respect to the
Registration Statement, each amendment and supplement thereto (including the preliminary prospectus) and such other documents relating
thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and
(r)
use its reasonable best efforts to take or cause to be taken all other actions, and do and cause to be done all other things
necessary or reasonably advisable in the opinion of Holders’ Counsel to effect the registration, marketing and sale of such Registrable
Securities.
The Company agrees not to file or make any amendment to any Registration Statement with respect to any Registrable Securities, or
any amendment of or supplement to the prospectus used in connection therewith, that refers to any Holder covered thereby by name, or
otherwise identifies such Holder as the holder of any securities of the Company, without the consent of such Holder, such consent not to be
unreasonably withheld or delayed, unless and to the extent such disclosure is required by law. The Company may require each Holder of
Registrable Securities as to which any registration is being effected to furnish the Company with such information regarding such Holder and
pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time
reasonably request in writing.
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2.7
Registration Expenses . Whether or not any Registration Statement is filed or becomes effective, the Company shall
pay directly or promptly reimburse all costs, fees and expenses incident to the Company’s performance of or compliance with this Agreement,
including (i) all registration and filing fees, (ii) all fees and expenses associated with filings to be made with any securities exchange or with
any other governmental or quasi-governmental authority; (iii) all fees and expenses of compliance with securities or blue sky laws, including
reasonable fees and disbursements of counsel in connection therewith, (iv) all printing expenses (including expenses of printing certificates for
Registrable Securities and of printing prospectuses if the printing of prospectuses is requested by the Holders or the managing underwriters, if
any), (v) all “road show” expenses incurred in respect of any Underwritten Offering, including all costs of travel, lodging and meals, (vi) all
messenger, telephone and delivery expenses, (vii) all fees and disbursements of Company Outside Counsel, (viii) all fees and disbursements of
all independent certified public accountants of the Company (including expenses of any “cold comfort” letters required in connection with this
Agreement) and all other Persons retained by the Company in connection with such Registration Statement, (ix) all reasonable fees and
disbursements of underwriters (other than Selling Expenses) customarily paid by the issuers or sellers of securities and, (x) all other costs, fees
and expenses incident to the Company’s performance or compliance with this Agreement (all such expenses, “ Registration Expenses ”). The
Selling Holders shall be responsible for the fees and expenses of Holders’ Counsel and Selling Expenses. The Company will, in any event, pay
its internal expenses (including, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of
any annual audit or quarterly review and the expenses of any liability insurance. The Company shall have no obligation to pay any Selling
Expenses or fees and expenses associated with Holders’ Counsel.
2.8
Underwritten Offering . No Holder may participate in any registration hereunder that is an Underwritten Offering
unless such Holder (i) agrees to sell its Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements (including pursuant to the terms of any over-allotment or “green shoe” option requested by the
managing underwriters; provided, that no Holder will be required to sell more than the number of Registrable Securities that such Holder has
requested the Company to include in any registration), (ii) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, and (iii) cooperates
with the Company’s reasonable requests in connection with such registration or qualification (it being understood that the Company’s failure to
perform its obligations hereunder, which failure is caused by such Holder’s failure to cooperate, will not constitute a breach by the Company of
this Agreement); provided that no such Holder shall be required to make any representations or warranties in connection with any such
registration other than representations and warranties as to (A) such Holder’s ownership of Registrable Securities to be transferred free and
clear of all liens, claims, and encumbrances created by such Holder, (B) such Holder’s power and authority to effect such transfer, and (C) such
matters pertaining to such Holder’s compliance with securities laws as reasonably may be requested; provided, further that any obligation of
such Holder to indemnify any Person pursuant to any underwriting agreement shall be several, not joint and several, among such Holders
selling Registrable Securities, and such liability shall be limited to the net amount received by such Holder, as applicable, from the sale of
Registrable Securities pursuant to such registration (which amounts shall include the amount of cash or the fair market value of any assets in
exchange for the sale or exchange of such Registrable Securities or that are the subject of a distribution), and the relative liability of each such
Holder shall be in proportion to such net amounts.
2.9
Suspension of Registration . In the event of a Material Disclosure Event at the time of the filing, initial effectiveness or
continued use of a Registration Statement, including a Shelf Registration Statement, the Company may, upon giving at least ten (10) days’ prior
written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement (a “
Suspension ”); provided , however , that, the Company shall not be permitted to exercise a Suspension (i) more than twice during any
12-month period, (ii) for a period exceeding sixty (60) days on any one occasion, (iii) unless for the full period of the Suspension, the Company
does not offer or sell securities for its own account, does not permit registered sales by any holder of its securities and prohibits offers and sales
by its directors and officers, or (iv) at any time within seven (7) days prior to the anticipated pricing of an Underwritten Offering pursuant to a
Demand Registration or within thirty-five (35) days after the pricing of such an Underwritten Offering. In the case of a Suspension, the Holders
will suspend use of the applicable prospectus in connection with any sale or purchase of, or offer to sell or purchase, Registrable Securities,
upon receipt of the notice referred to above. In connection with a Demand Registration, prior to the termination of any Suspension, the Holder
that made the request for Demand Registration will be entitled to
10
withdraw its Demand Notice. Upon receipt of notices from all Holders of Registrable Securities included in such Registration Statement to
such effect, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement. The Company shall
immediately notify the Holders upon the termination of any Suspension.
2.10
Indemnification .
(a)
The Company agrees to indemnify and hold harmless to the fullest extent permitted by law, each Holder, any Person
who is or might be deemed to be a controlling person of the Company or any of its Subsidiaries within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, their respective direct and indirect general and limited partners, advisory board members,
directors, officers, trustees, managers, members, agents, Affiliates and shareholders, and each other Person, if any, who controls any such
Holder or controlling person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each such person being
referred to herein as a “ Covered Person ”) against, and pay and reimburse such Covered Persons for any losses, claims, damages, liabilities,
joint or several, to which such Covered Person may become subject under the Securities Act, the Exchange Act, any state blue sky securities
laws, any equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based upon (i) any untrue or alleged untrue statement of material fact
contained or incorporated by reference in any Registration Statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any document incorporated by reference therein, or any other such disclosure document (including reports and other
documents filed under the Exchange Act and any document incorporated by reference therein) or other document or report, (ii) any omission or
alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any violation
by the Company of any rule or regulation promulgated under the Securities Act or any state securities laws applicable to the Company and
relating to action or inaction required of the Company in connection with any such registration, and the Company will pay and reimburse such
Covered Persons for any legal or any other expenses actually and reasonably incurred by them in connection with investigating, defending or
settling any such loss, claim, liability, action or proceeding; provided , that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon an untrue statement
or alleged untrue statement, or omission or alleged omission, made or incorporated by reference in such Registration Statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or any document incorporated by reference therein, or any other
such disclosure document (including reports and other documents filed under the Exchange Act and any document incorporated by reference
therein) or other document or report, or in any application in reliance upon, and in conformity with, written information prepared and furnished
to the Company by such Covered Person expressly for use therein. In connection with an Underwritten Offering, the Company, if requested,
will indemnify the underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the indemnification of the Covered Persons and in such other manner as
the underwriters may request in accordance with their standard practice.
(b)
In connection with any Registration Statement in which one or more Holders are participating, each such Holder will
indemnify and hold harmless the Company, its directors and officers, employees, agents and any Person who is or might be deemed to be a
controlling person of the Company or any of its Subsidiaries within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any losses, claims, damages, liabilities, joint or several, to which such Holder or any such director or officer, any such
underwriter or controlling person may become subject under the Securities Act, the Exchange Act, any state blue sky securities laws, any
equivalent non-U.S. securities laws or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i) any untrue or alleged untrue statement of material fact contained
in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or in any application or
(ii) any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading,
but only to the extent that such untrue statement or omission is made in such Registration Statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in reliance upon and in conformity with written information
prepared and furnished to the Company by such Holder expressly for use therein, and such Holder will reimburse the Company and each such
director, officer, underwriter and controlling Person for any legal or any other expenses actually and reasonably incurred by them in connection
with investigating, defending or settling any such loss, claim, liability, action or proceeding; provided , that the
11
obligation to indemnify and hold harmless will be individual and several to each Holder and will be limited to the net amount of proceeds
received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement.
(c)
Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification; provided, that any delay or failure to so notify the indemnifying party shall relieve the
indemnifying party of its obligations hereunder only to the extent, if at all, that it is actually and materially prejudiced by reason of such delay
or failure. The indemnifying party shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of
written notice from such indemnified party of such claim or proceeding, to assume, at the indemnifying party’s expense, the defense of any
such claim or proceeding, with counsel reasonably acceptable to such indemnified party; provided , that (i) any indemnified party shall have the
right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (A) the indemnifying party has agreed in writing to pay such fees or expenses, (B) the
indemnifying party shall have failed to assume the defense of such claim within a reasonable time after receipt of notice of such claim or fails
to employ counsel reasonably satisfactory to such indemnified party or to pursue the defense of such claim in a reasonably vigorous manner or
(C) the named parties to any proceeding (including impleaded parties) include both such indemnified and the indemnifying party, and such
indemnified party has reasonably concluded (based upon advice of its counsel) that there may be legal defenses available to it that are
inconsistent with those available to the indemnifying party or that a conflict of interest is likely to exist among such indemnified party and any
other indemnified parties (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of such
indemnified party); and (ii) subject to clause (C) above, the indemnifying party shall not, in connection with any one such claim or proceeding
or separate but substantially similar or related claims or proceedings in the same jurisdiction, arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one firm of attorneys (together with appropriate local counsel) at any time for
all of the indemnified parties, or for fees and expenses that are not reasonable. Whether or not the indemnifying party assumes the defense, the
indemnifying party shall not have the right to settle such action without the consent of the indemnified party. No indemnifying party shall
consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of an unconditional release from all liability in respect to such claim or litigation.
(d)
If the indemnification provided for in this Section 2.10 is held by a court of competent jurisdiction to be unavailable to
an indemnified party with respect to any loss, liability, claim, damage or expense referred to therein, then the indemnifying party, in lieu of
indemnifying such indemnified party thereunder, will contribute to the amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage or expense in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other hand in connection with the statements or omissions which resulted in such loss, liability, claim,
damage or expense as well as any other relevant equitable considerations. The relevant fault of the indemnifying party and the indemnified
party will be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission
to state a material fact relates to information supplied by the indemnifying party or by the indemnified party and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission. Notwithstanding the foregoing, the amount
any Holder will be obligated to contribute pursuant to this Section 2.10(d) will be limited to an amount equal to the net proceeds to such Holder
from the Registrable Securities sold pursuant to the Registration Statement which gives rise to such obligation to contribute (less the aggregate
amount of any damages which the Holder has otherwise been required to pay in respect of such loss, claim, damage, liability or action or any
substantially similar loss, claim, damage, liability or action arising from the sale of such Registrable Securities). No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(e)
The indemnification provided for under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will
survive the registration and sale of any securities by any Person entitled to any indemnification hereunder and the expiration or termination of
this Agreement.
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2.11
Conversion of Other Securities . If any Holder that is a member of the Affiliated Group offers any options, rights,
warrants or other securities issued by it or any other member of the Affiliated Group that are offered with, convertible into or exercisable or
exchangeable for any Registrable Securities of such Holder representing not less than 7% of the outstanding Ordinary Shares of the Company,
the Registrable Securities underlying such options, rights, warrants or other securities shall be eligible for registration pursuant to Sections 2.1
and 2.4 hereof.
2.12
Rule 144; Rule 144A . The Company shall use its reasonable best efforts to file in a timely fashion all reports and other
documents required to be filed by it under the Securities Act and the Exchange Act and shall take such further action as the Holders may
reasonably request, all to the extent required by the SEC as a condition to the availability of Rule 144, Rule 144A or any similar rule or
regulation hereafter adopted by the SEC under the Securities Act.
2.13
Transfer of Registration Rights . Any member of the Affiliated Group (and any transferee of any such member, or any
subsequent transferee, of the rights under this Agreement in accordance with this Section 2.13) may transfer all or any portion of its rights
under this Agreement to any transferee who acquires in such transfer Registrable Securities representing not less than 7% of the outstanding
Ordinary Shares of the Company. Any transfer of registration rights pursuant to this Section 2.13 from any member of the Affiliated Group
(and of any transferee of any such member, or any subsequent transferee, of the rights under this Agreement in accordance with this
Section 2.13) to any Person that is not a member of the Affiliated Group shall be effective upon receipt by the Company of written notice from
the transferor stating the name and address of the transferee and identifying the amount of Registrable Securities with respect to which rights
under this Agreement are being transferred.
Article 3
PROVISIONS APPLICABLE TO ALL DISPOSITIONS OF REGISTRABLE SECURITIES
3.1
Underwriter Selection . In any public or private offering of Registrable Securities by a Selling Holder, other than
pursuant to a Piggyback Registration, such Selling Holder(s) shall have the sole right to select the managing underwriters to arrange such
Underwritten Offering, which may include any Affiliate of such Selling Holder(s).
3.2
Cooperation with Sales . In addition to the provisions of Section 2.6 hereof, applicable to sales of Registrable
Securities pursuant to a registration, in connection with any sale or disposition of Registrable Securities by a Selling Holder, the Company shall
provide full cooperation, including:
(a)
providing access to employees, management and Company records to any purchaser or potential purchaser, and to any
underwriters, initial purchasers, brokers, dealers or agents involved in any sale or disposition, subject to entry into customary confidentiality
arrangements;
(b)
participation in road shows, investor and analyst meetings, conference calls and similar activities;
(c)
using reasonable best efforts to obtain customary auditor comfort letters and legal opinions;
(d)
entering into customary underwriting and other agreements;
(e)
using reasonable best efforts to obtain any regulatory approval or relief necessary for any proposed sale or disposition;
and
(f)
filling of registration statements with the SEC or with other authorities or making other regulatory or similar filings
necessary or advisable in order to facilitate any sale or disposition.
3.3
Expenses of Offerings . Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible
for any expenses associated with any sale of Registrable Securities by a Selling Holder, except for the fees and expenses of Holders’ Counsel
and Selling Expenses.
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3.4
Further Assurances . The Company shall use its reasonable best efforts to cooperate with and facilitate, and shall not
interfere with, the disposition by a Selling Holder of its holdings of Registrable Securities.
Article 4
MISCELLANEOUS
4.1
Term . This Agreement shall terminate upon such time as no Registrable Securities remain outstanding, except for the
provisions of Sections 2.7, 2.10 and this Article 4 which shall survive such termination.
4.2
Other Holder Activities . Notwithstanding anything in this Agreement, none of the provisions of this Agreement shall
in any way limit a Holder or any of its Affiliates from engaging in any brokerage, investment advisory, financial advisory, financing, asset
management, trading, market making, arbitrage, investment activity and other similar activities conducted in the ordinary course of their
business.
4.3
No Inconsistent Agreements . The Company represents and warrants that it has not entered into and covenants and
agrees that it will not enter into, any agreement with respect to its securities which is inconsistent with or violates the rights granted to the
Holders of Registrable Securities in this Agreement.
4.4
Amendments and Waivers . Except as otherwise provided herein, the provisions of this Agreement may be amended or
waived only by written agreement executed by the Company, OMGUK and OM plc, or if no member of the Affiliated Group is a Holder, the
Holders of a majority of the Registrable Securities. Any waiver or failure to insist upon strict compliance with any obligation, covenant or
agreement shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure of compliance.
4.5
No Third Party Beneficiaries. Except in relation to the rights of indemnification provided to the Covered Persons
pursuant to Section 2.10, nothing in this Agreement shall convey any rights upon any person or entity which is not a Party or a successor or
permitted assignee of a Party to this Agreement.
4.6
Entire Agreement . This Agreement, together with the Shareholder Agreement, including any schedules or exhibits
hereto or thereto, embody the entire agreement and understanding of the Parties hereto in respect of the subject matter covered by this
Agreement and the Shareholder Agreement. There are no restrictions, promises, representations, warranties, covenants or undertakings, other
than those expressly set forth or referred to herein or therein. This Agreement and the Shareholder Agreement supersede all prior agreements
and understandings between the Parties with respect to such subject matter.
4.7
Severability . In the event that any one or more of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended
that all of the rights and privileges of the Parties shall be enforceable to the fullest extent permitted by law. To the extent that any such
provision is so held to be invalid, illegal or unenforceable, the Parties shall in good faith use commercially reasonable efforts to find and effect
an alternative means to achieve the same or substantially the same result as that contemplated by such provision.
4.8
Counterparts . This Agreement may be signed in any number of identical counterparts, each of which shall be deemed
an original with the same effect as if the signatures thereto and hereto were upon the same instrument. The Parties hereto may deliver this
Agreement by facsimile or by electronic mail and each Party shall be permitted to rely upon on the signatures so transmitted to the same extent
and effect as if they were original signatures.
4.9
Arbitration .
(a)
Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity
or termination, shall be referred to and finally resolved by arbitration under the rules of the LCIA Court which are deemed to be incorporated
by reference into this clause, save as modified herein:
14
(i)
(ii)
The seat of arbitration shall be London, England.
There shall be three arbitrators, one nominated by the claimant and one nominated by the respondent within
fifteen (15) days of respondent’s receipt of the claimant’s request for arbitration. If OM plc and OMGUK are
co-claimants or co-respondents to the arbitration, they shall be treated as one party for the purposes of the
nomination of an arbitrator. If any Party has not appointed its arbitrator within the fifteen (15)-day period specified
herein, such appointment shall be made by the LCIA Court upon the written request of a Party within fifteen (15)
days of such request. The LCIA Court shall appoint the chairman within fifteen (15) days of the nomination of the
other two members of the tribunal. The hearing shall be held no later than one-hundred-and-twenty (120) days
following the appointment of the third arbitrator.
(iii)
In terms of procedure, the Parties agree that:
(A)
(B)
The Statement of Defence shall be sent to the Registrar within fifteen (15) days of receipt of notice of
appointment of the third arbitrator.
(C)
A case management hearing shall take place within ten (10) days of receipt of the Statement of
Defence to determine the procedure leading up to the hearing. The Parties shall seek to agree to the
procedure between them, consistent with the provisions of this Section 4.9.
(D)
The Statement of Reply (if any) shall be sent to the Registrar within fifteen (15) days of receipt of the
Statement of Defence.
(E)
The Statement of Reply to Counterclaim (if any) shall be sent to the Registrar within fifteen (15) days
of receipt of the Statement of Reply.
(F)
The arbitral tribunal shall exercise its power to order the Parties to supply copies of any documents in
their possession, custody or power that are relevant to the subject matter of the dispute taking into account
the Parties’ desire that the arbitration be conducted expeditiously and cost effectively. All disclosure of
documents shall be completed within sixty (60) days of the appointment of the third arbitrator.
(G)
(iv)
The Request shall be treated as the Claimant(s)’ Statement of Case.
The Parties agree that they shall have the right to be heard orally on the merits of the dispute.
By agreeing to arbitration, the Parties do not intend to deprive a court of its jurisdiction to issue a pre-arbitral
injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any
award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the
arbitral tribunal shall have full authority to grant provisional remedies, to direct the Parties to request that any court
modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of
any Party to respect the arbitral tribunal’s orders to that effect. For the purpose of any provisional relief
contemplated hereunder, the Parties hereby submit to the non-exclusive jurisdiction of the English Courts. Each
Party unconditionally and irrevocably waives any objections which it may have now or in the future to the
jurisdiction of the English Courts including objections by reason of lack of personal jurisdiction, improper venue, or
inconvenient forum.
15
(v)
The award shall be in writing, shall state the findings of fact and conclusions of law on which it is based, shall
be final and binding and shall be the sole and exclusive remedy among the Parties regarding any claims or
counterclaims presented to the arbitral tribunal. Judgment upon any award may be entered in any court having
jurisdiction.
(vi)
The Parties will bear equally all fees, costs, disbursements and other expenses of the arbitration, and each
Party shall be solely responsible for all fees, costs, disbursements and other expenses incurred in the preparation and
prosecution of its own case; provided that in the event that a Party fails to comply with the orders or decision of the
arbitral tribunal, then such noncomplying Party shall be liable for all costs and expenses (including attorney fees)
incurred by the other Parties in their efforts to obtain either an order to compel, or an enforcement of an award, from
a court of competent jurisdiction.
(vii)
The arbitral tribunal shall have no authority to award punitive, exemplary or multiple damages or any other
damages not measured by the prevailing Parties’ actual damages.
(viii)
All notices by one Party to another in connection with the arbitration shall be in accordance with the provisions
of Section 4.16 hereof, except that all notices for a demand for arbitration made pursuant to this Article IV must be
made by personal delivery or receipted overnight courier. This agreement to arbitrate shall be binding upon the
successors and permitted assigns of each Party. This Agreement and the rights and obligations of the Parties shall
remain in full force and effect pending the award in any arbitration proceeding hereunder.
4.10
Conduct During Dispute Resolution . The Parties shall continue the performance of their respective obligations under
this Agreement that are not the subject of dispute during the resolution of any dispute or agreement, including during any period of arbitration,
unless and until this Agreement is terminated or expires in accordance with its terms and conditions.
4.11
Remedies; Attorney’s Fees .
(a)
The Parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage would
result, no adequate remedy at law would exist and damages would be difficult to determine in the event that any provision of this Agreement is
not performed in accordance with its specific terms or otherwise breached. Therefore, in addition to, and not in limitation of, any other remedy
available to any Party, except as otherwise expressly provided herein, an aggrieved Party under this Agreement shall be entitled to specific
performance of the terms hereof and immediate injunctive relief, without the necessity of proving the inadequacy of money damages as a
remedy. None of the Parties shall be required to obtain or furnish any bond or similar instrument in connection with or as a condition to
obtaining or seeking any such remedy. For the avoidance of doubt, nothing in this Agreement shall diminish the availability of specific
performance of the obligations under this Agreement or any other injunctive relief.
(b)
Such remedies, and any and all other remedies provided for in this Agreement, shall be cumulative in nature and not
exclusive and shall be in addition to any other remedies whatsoever which any Party may otherwise have. Each of the Parties hereby
acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable
substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each Party hereby
further agrees that in the event of any action by the other Party for specific performance or injunctive relief, it will not assert that a remedy at
law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be
available on the grounds that money damages are adequate or any other grounds.
4.12
GOVERNING LAW . THIS AGREEMENT (TOGETHER WITH ANY NON-CONTRACTUAL OBLIGATIONS
ARISING OUT OF IT) SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS AND DUTIES OF
THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED
IN AND TO BE PERFORMED IN THAT STATE.
16
4.13
CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL . For the purpose of any
provisional relief contemplated hereunder, the Parties hereby submit to the non-exclusive jurisdiction of the English Courts. Each Party
unconditionally and irrevocably waives any objections which they may have now or in the future to the jurisdiction of the English Courts
including objections by reason of lack of personal jurisdiction, improper venue, or inconvenient forum; provided , that such consent to
jurisdiction is solely for the purpose referred to in this Section 4.13 and shall not be deemed to be a general submission to the jurisdiction of
said courts other than for such purpose. Each of the Parties hereby agrees not to commence any such action, suit or proceeding other than
before one of the above-named courts. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
4.14
No Assignment . Except as otherwise provided for in this Agreement, neither this Agreement nor any of the rights,
interests or obligations of any Party hereto may be assigned by such Party without the prior written consent of the other Party.
4.15
Further Actions . Each Party hereto shall, on notice of request from any other Party hereto, take such further action not
specifically required hereby at the expense of the requesting Party, as the requesting Party may reasonably request for the implementation of
the transactions contemplated hereby.
4.16
Notice . Unless otherwise provided in this Agreement, all notices and other communications provided for hereunder
shall be dated and in writing and shall be deemed to have been given (i) when delivered, if delivered personally, sent by confirmed telecopy or
sent by registered or certified mail, return receipt requested, postage prepaid, provided that such delivery is completed during normal business
hours of the recipient, failing which such notice shall be deemed to have been given on the next Business Day, (ii) on the next Business Day if
sent by overnight courier and delivered on such Business Day within ordinary business hours and, if not, the next Business Day following
delivery; and (iii) when received, if received during normal business hours and, if not, the next Business Day after receipt, if delivered by
means other than those specified above. Such notices shall be delivered to the address set forth below, or to such other address as a Party shall
have furnished to the other Party in accordance with this Section.
If to OM plc or OMGUK, to:
Old Mutual plc
5 th Floor, Millennium Bridge House
2 Lambeth Hill
London EC4V 4GG, United Kingdom
Attention: Group Company Secretary
Phone No.: +44 (0) 20 7002 7109
Email: [email protected]
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Ralph Arditi
Phone No.: 212-735-3860
Email: [email protected]
17
If to the Company:
OM Asset Management plc
c/o Old Mutual (US) Holdings Inc.
200 Clarendon Street, 53rd Floor
Boston, MA 02116
Attention: Steve Belgrad, CFO
Phone No.: 617-369-7371
Email: [email protected]
with a copy to:
Bingham McCutchen LLP
399 Park Avenue
New York NY 10022
Attention: Floyd I. Wittlin, Esq.
Phone No.: 212-705-7466
E-mail: [email protected]
[ Signature Page Follows ]
18
IN WITNESS WHEREOF, the Parties have caused this Registration Rights Agreement to be executed and delivered as of the date
first above written.
OM Asset Management plc
By:
/s/ Stephen H. Belgrad
Name: Stephen H. Belgrad
Title: Executive Vice President and Chief Financial Officer
OM Group (UK) Limited
/s/ Paul Forsythe
Name: Paul Forsythe
Title: Company Secretary
Old Mutual plc
By:
/s/ Martin C. Murray
Name: Martin C. Murray
Title: Solicitor and Group Company Secretary
[Signature Page to Registration Rights Agreement]
Exhibit 10.6
Execution Copy
SHAREHOLDER AGREEMENT
AMONG
OLD MUTUAL PLC,
OM GROUP (UK) LIMITED,
AND
OM ASSET MANAGEMENT PLC
DATED AS OF OCTOBER 8, 2014
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1
1.2
1.3
Definitions
Timing of Provisions
Interpretation
1
7
8
ARTICLE II
BOARD OF DIRECTORS AND CORPORATE GOVERNANCE
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
Board of Directors
Audit Committee of the Board
Compensation Committee of the Board
Nominating and Corporate Governance Committee of the Board
Conflict of Interest Authorization
Quorum
Additional Board Committees
Board policies
Director Information
Implementation
9
10
11
12
13
13
13
13
13
14
ARTICLE III
OM PLC APPROVAL AND CONSENT RIGHTS
3.1
OM plc Approval and Consent Rights Until a 20% Holder
14
ARTICLE IV
INFORMATION, DISCLOSURE AND FINANCIAL ACCOUNTING
4.1
4.2
4.3
4.4
4.5
Information Rights
General Information Requirements
Reporting Coordination Committee
Matters Concerning Auditors
Release of Information and Public Filings
16
17
18
18
19
ARTICLE V
SUBSEQUENT SALES OF ORDINARY SHARES
5.1
Registration Rights
20
i
5.2
5.3
5.4
Preemptive Rights
Lock-Up Provisions
Transfers by OM PLC
20
22
22
ARTICLE VI
OTHER PROVISIONS
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
Other Agreements
Access to Personnel and Data
Internal Communications Protocol
Access to Historical Records
Indemnification; Liability Insurance
Non-Solicitation
No commitment to finance
Additional Covenant
23
23
23
23
24
26
27
27
ARTICLE VII
WARRANTIES
7.1
Warranties
27
ARTICLE VIII
DISPUTE RESOLUTION
8.1
8.2
8.3
Arbitration
Confidentiality
Conduct During Dispute Resolution
27
30
30
ARTICLE IX
GENERAL PROVISIONS
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.11
9.12
9.13
[Reserved]
[Reserved]
[Reserved]
Notices
Binding Nature of Agreement
Remedies
Governing Law
Counterparts
Severability
Confidential Information
Market abuse
Amendment, Modification and Waiver
No partnership or agency
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9.14
9.15
9.16
9.17
9.18
9.19
9.20
9.21
Other business
No Assignment
Further Assurance
Contracts (Rights of Third Parties) Act
Discretion of Parties
Entire Agreement
Conflicts
Term
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SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT is made as of the 8th day of October, 2014 among Old Mutual plc, a company incorporated
and registered in England and Wales with company number 3591559 (together with its successors and permitted assigns, “OM plc” ), OM
Group (UK) Limited, a company incorporated and registered in England and Wales with company number 3591572 (together with its
successors and permitted assigns, “OMGUK” ), and OM Asset Management plc, a company incorporated and registered in England and Wales
with company number 09062478 (together with its successors, the “Company” , and together with OM plc and OMGUK, each a “Party” and,
collectively, the “Parties” ).
RECITALS:
WHEREAS, OM plc is the indirect owner of all of the issued and outstanding Ordinary Shares (as defined herein) of the Company
immediately prior to the date hereof through its wholly-owned subsidiary, OMGUK;
WHEREAS, immediately following Completion of the IPO (as defined herein), OMGUK will continue to own a majority of the
outstanding Ordinary Shares; and
WHEREAS, the Parties hereto wish to set forth certain agreements that will govern certain matters among them following the
Completion of the IPO (as defined below).
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1
Definitions . In this Agreement, the following terms shall have the following meanings:
(a)
(b)
(c)
“ Affiliate ” means, with respect to any Person, any corporation, limited liability company, partnership,
association, business, trust, joint venture, business entity or other entity of any kind or nature, that directly or
indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such
Person; provided that neither OM plc or OMGUK nor any other Person Controlling the Company (or under common
Control with any other Person Controlling the Company) shall be deemed to be Affiliates of the Company.
“Agreed Coverage” has the meaning set forth in Section 6.5(b).
“Agreement” means this Shareholder Agreement, including all amendments, modifications and supplements
and all annexes and schedules to any of the foregoing, and shall refer to this Agreement as the
1
same may be in effect at the time such reference becomes operative and “hereof” and “herein” shall have correlative
meanings.
(d)
(e)
“Applicable Law” means any domestic or foreign statute, law (including the common law), ordinance, rule,
regulation, published regulatory policy or guideline, order, judgment, injunction, decree, award or writ of any court,
tribunal, stock exchange or other regulatory authority, arbitrator, governmental authority, or other Person having
jurisdiction, or any consent, exemption, approval or license of any governmental authority that applies in whole or in
part to a Party and, with respect to the Company, includes the Exchange Act, the Securities Act, the UK Companies
Act 2006, the rules of the SEC, the Investment Advisers Act of 1940, as amended, and all related regulations,
guidelines and instructions and the rules of the Exchange and any other exchange or quotation system on which the
securities of the Company are listed or traded from time to time.
“Articles” means the articles of association of the Company, as amended from time to time.
(f)
“Bankruptcy Laws” means Title 11 of the United States Code, as amended, and other federal, state or
foreign laws principally dealing with the liquidation, reorganization, administration, conservatorship or receivership
of insolvent debtors, including provisions of federal, state and foreign laws and regulation principally dealing with
the rehabilitation or liquidation of regulated insurance entities, including the provisions of the UK Insolvency Act
1986.
(g)
“Board of Directors” or “Board” means the board of directors of the Company from time to time, whether
prior to or subsequent to Completion of the IPO.
(h)
“Business Day” means any day except (i) a Saturday, (ii) a Sunday, (iii) any day on which the principal office
of the Company or of OM plc is not open for business, and (iv) any other day on which commercial banks in New
York, New York or in the United Kingdom are authorized or obligated by law or executive order to close.
(i)
“CEO” means the Chief Executive Officer of the Company from time to time (or the equivalent successor
position), as appointed by the Board of Directors.
(j)
“CFO” means the Chief Financial Officer of the Company from time to time (or the equivalent successor
position), as appointed by the Board of Directors.
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(k)
“Chairman of the Board” means the Director that holds the position of chairman, with the attendant rights of
such position as set out in the Articles and elsewhere.
(l)
“COC Transaction” means any of the following (i) a merger of the Company with and into an unaffiliated
third party, (ii) the sale of all or any material portion of the business or assets of the Company to any Person other
than OM plc or a Subsidiary of OM plc, (iii) the acquisition by any Person other than OM plc or a Subsidiary of OM
plc of an amount equal to or greater than twenty-five percent (25%) of the issued and outstanding Ordinary Shares,
(iv) a scheme of arrangement between the Company and its members pursuant to which any Person other than OM
plc or a Subsidiary of OM plc acquires legal or beneficial ownership of twenty-five percent (25%) or more of the
Equity Share Capital of the Company or any of its Subsidiaries, and (v) any other transaction or series of
transactions resulting in a change of Control of the Company or any of its Subsidiaries.
(m)
“Company” has the meaning set forth in the preamble to this Agreement.
(n)
“Company Auditor” means the independent registered public accounting firm responsible for conducting the
audit of the Company’s annual financial statements.
(o)
“Completion of the IPO” means the occurrence of the later to occur of (i) settlement of the first sale of
Ordinary Shares pursuant to the IPO Registration Statement and (ii) the listing of the Ordinary Shares on the
Exchange, and, if the context so requires, the time of such later occurrence.
(p)
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by contract, as trustee, or
otherwise, and “Controls” and “Controlled” shall have correlative meanings.
(q)
“Coverage Change” has the meaning set forth in Section 6.5(d).
(r)
“D&O Coverage” has the meaning set forth in Section 6.5(b).
(s)
“Director” means a member of the Board of Directors and “Directors” has a correlative meaning.
(t)
“Equity Awards” means a grant to a Director or employee of the Company or any of its Subsidiaries of
vested or unvested Ordinary Shares or restricted Ordinary Shares, options to acquire Ordinary Shares, restricted
securities, “phantom” share options or similar interests in the
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Company’s Ordinary Shares, in each case pursuant to an equity compensation plan approved by the Board of
Directors.
(u)
(v)
“Equity Share Capital” means, in relation to a Person, shares or other equity interests comprised in such
Person’s share capital or other equity interests and securities (including debt securities, warrants or options to
subscribe for or to purchase) convertible into (whether or not such conversion is contingent or conditional), or
exercisable or exchangeable for such shares or other equity interests.
“Exchange” means the New York Stock Exchange.
(w)
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended and the rules and
regulations of the SEC promulgated thereunder.
(x)
“Executive Officer” means the CEO, CFO and all other persons qualifying as “officers” of the Company for
purposes of Rule 16a-1(f) under the Exchange Act.
(y)
“Fiduciary Coverage” has the meaning set forth in Section 6.5(b).
(z)
“First Threshold Date” means the first date on which OM plc ceases to beneficially own, directly or
indirectly, at least 35% of the outstanding Ordinary Shares.
(aa)
“Fund” means any pooled investment vehicle for which any Subsidiary of the Company, directly or indirectly,
provides investment advisory or sub-advisory services, or serves as the general partner, managing member or in any
similar capacity (including any master or feeder fund, parallel fund or other alternative investment vehicle or third
party co-investment vehicle).
(bb)
“GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.
(cc)
“IFRS” means International Financial Reporting Standards, as adopted by the European Union.
(dd)
“Indebtedness” means as of any time, without duplication, the outstanding principal amount of, accrued and
unpaid interest on, and other payment obligations (including any prepayment premiums, “breakage costs”,
redemption fees, out-of-pocket costs and expenses, penalties and other obligations payable) arising under, any
obligations of the Company and its Subsidiaries consisting of (i) indebtedness for borrowed money or indebtedness
issued in substitution or exchange for borrowed money or extensions of credit, (ii) amounts owing as deferred
purchase price for property or services (including obligations under capitalized leases (as determined in accordance
with GAAP, applied on a consistent basis), but
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excluding any trade payables and accrued expenses arising in the ordinary course of business), (iii) indebtedness
evidenced by any note, bond, debenture or other debt security, in each case, as of such time, (iv) obligations for the
reimbursement of any obligor on any letter of credit to the extent such letter of credit has been drawn upon, (v) any
liabilities associated with derivative or other hedging contracts (valued at the termination cost thereof), and
(vi) obligations in the nature of guarantees of, or indemnities for, the obligations of other Persons of the type
referred to in clauses (i) through (v) above as of such time. Notwithstanding the foregoing, “Indebtedness” shall not
include (x) any undrawn letters of credit, (y) any Indebtedness among the Company and its Subsidiaries on the one
hand, and OM plc and its Subsidiaries, on the other hand or (z) any inter-company Indebtedness between the
Company and its Subsidiaries.
(ee)
“Independent Director” means a Director who is both (i) a NYSE Independent Director and (ii) in the case of
the audit committee referred to in Section 2.2, “independent” for purposes of Rule 10A-3(b)(1) under the Exchange
Act.
(ff)
“IPO Registration Statement” means the Registration Statement on Form S-1, as amended, relating to the
initial public offering of the Ordinary Shares.
(gg)
“LCIA Court” has the meaning set forth in Section 8.1(a).
(hh)
“Lien” means mortgage, pledge, security interest, encumbrance, lien or charge of any kind.
(ii)
“M&A Transaction” means (i) any acquisition or purchase, direct or indirect, of assets of a Person (other
than an immaterial amount of assets) whether or not comprising a going business, (ii) any acquisition or purchase,
direct or indirect, of any equity, membership interests or voting securities of a Person, or (iii) a merger, scheme of
arrangement, amalgamation, consolidation, share exchange, business combination, sale of assets, reorganization,
recapitalization, liquidation, dissolution or other similar transaction involving a Person, in each of (i), (ii) or
(iii) involving the Company or any of its Subsidiaries as a buyer, seller or target company.
(jj)
“Majority Holder Date” means the first date on which OM plc ceases to beneficially own, directly or
indirectly, more than 50% of the outstanding Ordinary Shares.
(kk)
“NYSE Independent Director” means a Director who is “independent” within the meaning of, and
determined by the Board of Directors in accordance with, Rule 303A.02 of the NYSE Manual.
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(ll)
(mm)
“NYSE Manual” means the Listed Company Manual of the New York Stock Exchange, as amended.
“OMGUK” has the meaning set forth in the preamble to this Agreement.
(nn)
“OM Persons” has the meaning set forth in Section 9.14(a).
(oo)
“OM plc” has the meaning set forth in the preamble to this Agreement.
(pp)
“OM plc Auditor” means the independent registered public accounting firm responsible for conducting the
audit of OM plc’s annual financial statements.
(qq)
“OM plc Director” means a Director (who may but need not be an Independent Director) designated by OM
plc pursuant to its appointment rights set forth in Section 2.1(d) hereof, and “OM plc Directors” has a correlative
meaning.
(rr)
“OM plc Group” means OM plc and each of its Subsidiaries (excluding, for the avoidance of doubt, the
Company and all of its Subsidiaries) and “member of the OM plc Group” has a correlative meaning.
(ss)
“OM plc Individual” has the meaning set forth in Section 6.5(j).
(tt)
“Ordinary Shares” means the ordinary shares, nominal value $0.0001 , of the Company.
(uu)
(vv)
(ww)
“Other Agreements” means those agreements, each dated on or before the Completion of the IPO, between
the Company or any of its Subsidiaries, on the one hand, and OM plc or any of its Subsidiaries, on the other hand,
and listed on Schedule 1.1(uu) hereto.
“Party” and “Parties” have the respective meanings set forth in the preamble to this Agreement.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, association
or other business entity and any trust, unincorporated organization or government or any agency or political
subdivision thereof.
(xx)
“Purchase Right Shares” has the meaning set forth in Section 5.2(a).
(yy)
“Purchase Right Share Amount” has the meaning set forth in Section 5.2(b).
(zz)
“Purchase Right Share Price” has the meaning set forth in Section 5.2(b).
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(aaa)
(bbb)
“Purchase Right Transaction” has the meaning set forth in Section 5.2(a).
“Registration Rights Agreement” means the registration rights agreement dated the date hereof between the
Company, OM plc and OMGUK in the form attached hereto as Annex A .
(ccc)
“Regulation S-K” means Regulation S-K under the Securities Act and the Exchange Act.
(ddd)
“Reporting Coordination Committee” has the meaning set forth in Section 4.3(a).
(eee)
“SEC” means the United States Securities and Exchange Commission.
(fff)
(ggg)
“Second Threshold Date” means the date on which OM plc ceases to beneficially own, directly or indirectly,
at least 20% of the outstanding Ordinary Shares.
“Securities Act” means the United States Securities Act of 1933, as amended.
(hhh)
“Subsidiary” means, with respect to a Person, any corporation, limited liability company, partnership,
association, business, trust, joint venture, business entity or other entity of any kind or nature, of which more than
fifty percent (50%) of either the equity interests or the Control is, directly or indirectly through Subsidiaries or
otherwise, beneficially owned by such Person, or of which such Person or any Subsidiary serves as the general
partner (in the case of a limited partnership) or the manager or managing member (in the case of a limited liability
company); provided that (i) no Fund or any Subsidiary of a Fund shall be a Subsidiary for the purposes of this
Agreement; (ii) the Company and its Subsidiaries will not be deemed to be Subsidiaries of OM plc or OMGUK, and
OMGUK and OM plc will not be deemed to be Subsidiaries of the Company; and (iii) for purposes of this
definition, unless explicitly stated otherwise in this Agreement, each of Heitman LLC and Investment Counselors of
Maryland, LLC shall be considered “Subsidiaries” of the Company.
(iii)
“Third Threshold Date” means the date on which OM plc ceases to beneficially own, directly or indirectly,
at least 7% of the outstanding Ordinary Shares.
(jjj)
“Wholly-Owned Subsidiary” means a Subsidiary, 100% of the Equity Share Capital of which is owned,
directly or indirectly, by a Party.
1.2
Timing of Provisions . In this Agreement, any provision which applies “until” a specified date shall apply on such specified
date, and shall cease to apply on the date immediately following such specified date. If any of a Majority Holder Date, First Threshold
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Date, Second Threshold Date or Third Threshold Date occur on the same date, OM plc shall be deemed to beneficially own the lowest number
of outstanding Ordinary Shares referenced in any such defined term that is applicable to such date.
1.3
Interpretation.
(a)
In this Agreement, except as the context may otherwise require, references to:
(i)
(ii)
(iii)
any statute, statutory provision or regulation are to the statute, statutory provision or regulation as
amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any
rules and regulations promulgated under the statute) and to any section of any statute or regulation includes
any successor to the section;
any governmental authority includes any successor to that governmental authority; and
any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status,
court, official or any legal concept or thing shall, in respect of any jurisdiction other than that of England, be
deemed to include what most nearly approximates in that jurisdiction to the English legal term.
(b)
The words “hereby”, “herein”, “hereof”, “hereunder” and similar terms are to be deemed to refer to this
Agreement as a whole and not to any specific Section.
(c)
The words “include”, “includes” or “including” are to be deemed followed by the words “without
limitation”. Any singular term in this Agreement will be deemed to include the plural, and any plural term the
singular. All pronouns and variations of pronouns will be deemed to refer to the feminine, masculine or neuter,
singular or plural, as the identity of the Person referred to may require.
(d)
The table of contents and Article and Section headings are for reference purposes only and do not limit or
otherwise affect any of the substance of this Agreement.
(e)
It is the intention of the parties that every covenant, term and provision of this Agreement shall be construed
simply according to its fair meaning and not strictly for or against any party, it being understood and agreed that the
parties to this Agreement are sophisticated and have had adequate opportunity and means to retain counsel to
represent their respective interests and to otherwise negotiate the terms and provisions of this
Agreement. Accordingly, the parties hereby waive, to the fullest extent
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permitted by Applicable Law, the benefit of any Applicable Law that would require that in cases of uncertainty, the
language of a contract should be strictly construed against, or most strongly construed against, the party who drafted
such language.
(f)
No provision of this Agreement is to be construed to require, directly or indirectly, any Person to take any
action, or omit to take any action, to the extent such action or omission would violate Applicable Law.
ARTICLE II
BOARD OF DIRECTORS AND CORPORATE GOVERNANCE
2.1
Board of Directors.
(a)
As of, or immediately after, the Completion of the IPO, the Board of Directors shall consist of seven members,
and, subject to clause (b) below, from the Completion of the IPO until the Majority Holder Date, the Company shall,
and OM plc shall use its best efforts to, cause the Board of Directors to consist of seven members, in each case as
follows:
(i)
(ii)
(b)
four OM plc Directors (one or more of which may, but need not, at the discretion of OM plc, be
Independent Directors); and
three Independent Directors (in addition to any OM plc Directors who are also Independent Directors).
At any time and from time to time until the Majority Holder Date, OM plc may elect to increase the size of the
Board of Directors from seven members to nine members by providing written notice to the Chairman of the
Board. The Company shall cause the size of the Board to be increased to nine members within ten (10) Business
Days of receipt of such notice. Following an increase in the size of the Board and until the Majority Holder Date,
the Company shall, and OM plc shall use its best efforts to, cause the Board of Directors to consist of nine members;
provided, that at least five of the members shall be OM plc Directors (one or more of which may, but need not, at
the discretion of OM plc, be Independent Directors).
(c)
Until the Majority Holder Date, OM plc shall have the right to designate the Chairman of the Board.
(d)
Without limiting the provisions of Section 2.1(a) and (b), OM plc shall have the right to appoint pursuant to
the provisions of the Articles the following number of Directors “OM plc Directors” :
(i)
Until the Majority Holder Date, such number of Directors on the Board of Directors as provided above in
Section 2.1(a) or
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(b), as applicable (or such lower number as OM plc shall determine);
(ii)
(e)
2.2
After the Majority Holder Date and until the First Threshold Date: (A) three Directors, if there shall be at
such time seven Directors on the Board of Directors, or (B) four Directors, if there shall be at such time nine
Directors on the Board of Directors;
(iii)
After the First Threshold Date and until the Second Threshold Date: two Directors;
(iv)
After the Second Threshold Date and until the Third Threshold Date: one Director; and
(v)
After the Third Threshold Date, no Directors.
Until the Third Threshold Date, the Company shall cause to be filled any vacancy on the Board of Directors
created by the resignation, removal or incapacity of any OM plc Director with another OM plc Director candidate
identified by OM plc and procure any removal of directors necessary to permit the appointment of any OM plc
Director candidates, to the extent OM plc would at such time have appointment rights for such OM plc Director
candidate pursuant to Section 2.1(d).
Audit Committee of the Board.
(a)
The Company undertakes that the Board of Directors shall, by Completion of the IPO, establish an audit
committee that consists of three Independent Directors, each of whom shall meet the standards for audit committee
membership as set forth in the NYSE Manual and the rules under the Exchange Act.
(b)
The Company undertakes that, until the Second Threshold Date, at least one member of the audit committee
shall be an OM plc Director that is an Independent Director, provided OM plc has designated an Independent
Director to be an OM plc Director and that such OM plc Director meets the standards for audit committee
membership as set forth in the NYSE Manual and the rules under the Exchange Act.
(c)
The audit committee shall have responsibilities and authority consistent with Rule 10A-3 under the Exchange
Act and Rule 303A.07 of the NYSE Manual, and such additional responsibilities and authority as shall be delegated
to it by the Board of Directors from time to time.
(d)
The audit committee shall have at all times at least one member who is an “audit committee financial expert”
as defined in Item 407(d)(5) of Regulation S-K under the Exchange Act.
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2.3
Compensation Committee of the Board.
(a)
(b)
The Company undertakes that the Board of Directors shall, by Completion of the IPO, establish a compensation
committee that consists of three Directors, or, if requested by OM plc, four Directors.
From the Completion of the IPO until the Majority Holder Date, the following provisions will apply:
(i)
the compensation committee of the Board of Directors shall be responsible for:
(A)
reviewing and approving the compensation of each of the Executive Officers;
(B)
reviewing the equity compensation plans and other compensation plans of the Company, and making
recommendations to the Board of Directors as to any changes to such plans;
(C)
subject to Section 3.1 hereof, making recommendations to the Board of Directors as to
performance-based awards and target levels under performance-based compensation arrangements;
(D)
preparing, or supervising the preparation of, the report required by Item 407(e)(5) of Regulation S-K
for inclusion in the Company’s proxy statement; and
(E)
such other responsibilities as shall be delegated to it by the Board of Directors from time to time; and
(ii)
(c)
in addition to its other powers, the Board of Directors shall be responsible for:
(A)
subject to Section 3.1 hereof, approving and adopting the equity compensation plans and other
compensation plans of the Company; and
(B)
subject to Section 3.1 hereof, approving performance-based awards and target levels under
performance-based compensation arrangements.
The composition of the compensation committee shall be as follows:
(i)
until the Majority Holder Date, three Directors selected by the Board of Directors (or four Directors if the
number of
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committee members is increased to four pursuant to Section 2.3(a)); and
(ii)
2.4
after the Majority Holder Date, three Independent Directors selected by the Board of Directors (or four
Independent Directors if the number of committee members is increased to four pursuant to Section 2.3(a)).
(d)
The Company undertakes that, until the Majority Holder Date, the terms of reference (charter) of the compensation
committee, as adopted prior to the Completion of the IPO, will not be amended without the prior written consent of
OM plc.
(e)
Following the Majority Holder Date, the compensation committee shall have responsibilities and authority
consistent with Rule 303A.05 of the NYSE Manual, and such additional responsibilities and authority as shall be
delegated to it by the Board of Directors from time to time. Following the Majority Holder Date, the compensation
committee shall also comply with any rule of the Exchange implementing Rule 10C-1 under the Exchange Act.
Nominating and Corporate Governance Committee of the Board.
(a)
(b)
The Company undertakes that the Board of Directors shall, by Completion of the IPO, establish a nominating and
corporate governance committee consisting of three Directors, or, if requested by OM plc, four Directors.
The composition of the nominating and corporate governance committee shall be as follows:
(i)
until the Majority Holder Date, three Directors selected by the Board of Directors (or four Directors if the
number of committee members is increased to four pursuant to Section 2.4(a)); and
(ii)
after the Majority Holder Date, three Independent Directors selected by the Board of Directors (or four
Independent Directors if the number of committee members is increased to four pursuant to Section 2.4(a)).
(c)
The Company undertakes that, until the Majority Holder Date, the terms of reference (charter) of the nominating
and corporate governance committee, as adopted prior to the Completion of the IPO, will not be amended without
the prior written consent of OM plc.
(d)
The nominating and corporate governance committee shall at all times exercise the responsibilities and authority
set forth under Rule 303A.04 of the NYSE Manual, and such additional responsibilities and authority as
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shall be delegated to it by the Board of Directors from time to time, subject in each case to OM plc’s nomination
rights under Section 2.1(d) hereof.
2.5
Conflict of Interest Authorization . Upon or prior to Completion of the IPO, the Directors of the Company shall authorize under
the UK Companies Act 2006 and the Articles any conflict of interest of any OM plc Directors from time to time with respect to any
employment, office or position held, or any other interest (including the ownership of securities), in respect of any member of the OM plc
Group on terms that each such OM plc Director shall be entitled to receive all information provided to, and participate fully in all deliberations
and participate in any vote of, the Board, for all matters (including in respect of any COC Transaction).
2.6
Quorum . Until the Majority Holder Date, no Board meeting shall proceed unless a majority of the Directors attending are OM
plc Directors unless this provision is waived in writing by OM plc.
2.7
Additional Board Committees . Until the Majority Holder Date, the Company undertakes that no committee of the Board shall be
established, and no Board powers shall otherwise be delegated, without the prior consent of OM plc.
2.8
Board policies . Until the Majority Holder Date, the Company shall, and shall cause its Subsidiaries and other Affiliates to, conduct
its and their respective business, affairs and operations in accordance with the policies, practices and procedures adopted by the Board of
Directors. This Section 2.8 shall not apply with respect to any Affiliate of the Company to the extent that the Company does not have
sufficient Control over such Affiliate to procure such conduct from such Affiliate; provided, that such Control shall be deemed to exist in the
case of any Subsidiary that is not specifically identified in clause (iii) of the definition of Subsidiary.
2.9
Director Information .
(a)
Each OM plc Director shall be entitled to disclose any information and provide relevant documents and materials
about the Company and its Subsidiaries to, and discuss the affairs, finances and accounts of the Company and any of
its Subsidiaries with, any member of the OM plc Group (and any of their respective professional advisers), and with
their respective officers and senior employees. The Company acknowledges that any Director taking action that is
in accordance with the previous sentence shall not be in breach of any fiduciary, statutory, contractual or other duty.
(b)
Notwithstanding the duties owed by each of the Directors to the Company, no OM plc Director shall be required to
disclose to the Company or the Board of Directors any information or documentation regarding any member of the
OM plc Group.
(c)
The Company shall provide each OM plc Director with copies of all notices, minutes, consents and other materials
provided by the Company
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to all other members of the Board of Directors (or members of any committee of the Board, as applicable)
concurrently and in the same form as such materials are provided to such other members.
2.10
Implementation.
(a)
The Company shall make such disclosures, and shall take such other steps, as shall be required to avail itself of
such “controlled company” and any other exemptions from Exchange rules and other Applicable Law so as to
permit the full implementation of this Agreement.
(b)
For the avoidance of doubt, OM plc Directors (i) shall not be required to be Independent Directors or meet any
standard of independence from the Company and (ii) may be officers or employees of OM plc or any of its
Subsidiaries.
ARTICLE II
OM PLC APPROVAL AND CONSENT RIGHTS
3.1
OM plc Approval and Consent Rights Until a 20% Holder . Without limiting any other rights that OM plc or its Subsidiaries
may have prior to the Majority Holder Date, whether under this agreement or otherwise, except as otherwise provided in this Section 3.1, until
such time as OM plc ceases to beneficially own, directly or indirectly, at least twenty percent (20%) of the outstanding Ordinary Shares, the
Company shall not (either directly or indirectly through a Subsidiary, or through one or a series of related transactions), and shall procure that
none of its Affiliates or Subsidiaries, take (or enter into a written agreement to take) any of the following actions without the prior written
consent of OM plc:
(a)
Any M&A Transaction (or any amendment to or termination of an agreement to enter into an M&A Transaction),
other than (i) any M&A Transaction involving consideration paid or payable subject to future contingencies
(including a pro rata share of the Indebtedness assumed) of less than $100 million or (ii) any M&A Transaction
involving the disposition of assets of the Company or any Subsidiary with a fair market value of less than $100
million;
(b)
Any incurrence or guarantee of Indebtedness in an amount greater than $300 million plus the principal amount of
the outstanding Indebtedness on the Majority Holder Date or the granting or permitting to exist of a Lien on any of
the Company’s or any of its Subsidiary’s assets, other than (i) Liens securing Indebtedness outstanding on the
Majority Holder Date, (ii) Liens securing Indebtedness of less than $300 million in excess of the principal amount of
the Indebtedness outstanding on the Majority Holder Date, (iii) Liens securing Indebtedness in respect of which
there is no recourse against the Company, or (iv) statutory Liens; provided, however, that prior to the Majority
Holder Date, this consent right shall not apply and any incurrence or guarantee of indebtedness, or the granting of
any Lien or permitting any Lien to exist, in each case other than a Lien referred to in clause (iv), prior to the
Majority Holder Date, shall be permitted as approved by the Board, subject to any other right that OM plc or its
Subsidiaries may have prior to the Majority Holder Date;
14
(c)
Any issuance or acquisition (including share buy-backs, redemptions and other reductions of capital) of Equity
Share Capital of the Company or any of its Subsidiaries, except:
(i)
issuances of Equity Awards;
(ii)
issuances of Equity Share Capital of a Subsidiary to a Wholly-Owned Subsidiary, or acquisitions of Equity
Share Capital of a Subsidiary by a Wholly-Owned Subsidiary; and
(iii)
issuances of Equity Share Capital in connection with an M&A Transaction permitted pursuant to clause
(a) of this Section 3.1; provided that the consent of OM plc is required for any such issuance of Equity Share
Capital which would result in OM plc’s rights decreasing under this Agreement due to its reduced beneficial
ownership of the outstanding Ordinary Shares of the Company;
(d)
The listing or delisting of securities of the Company or any of its Subsidiaries on a securities exchange, other than
the listing or delisting of debt securities on the Exchange or any other securities exchange located solely in the
United States;
(e)
Any amendment, modification, termination or waiver of (i) any rights under the constitutional documents of the
Company, including the Articles or (ii) any material rights under the constitutional documents of any of the
Subsidiaries of the Company or any operating, shareholder or other agreement governing the relationship between
the Company and a Subsidiary;
(f)
(g)
(h)
Entry into, or amendment, modification or termination of, any material joint venture or strategic alliance;
With respect to the Company or any Subsidiary, any filing or the making of any petition under Bankruptcy Laws,
any general assignment for the benefit of creditors, any admission of an inability to meet obligations generally as
they become due or any other act the consequence of which is to subject the Company or any Subsidiary to a
proceeding under Bankruptcy Laws;
Any dissolution or winding-up of the Company;
(i)
Any declaration or payment of a dividend or other distribution other than in accordance with the dividend policy
approved by the Board of Directors as of the Majority Holder Date; provided, however, that prior to the Majority
Holder Date, this consent right shall not apply and any declaration or payment of a dividend or other distribution
shall only be made if approved by the Board, subject to any other right that OM plc or its Subsidiaries may have
prior to the Majority Holder Date; or
(j)
Entry into any agreement or arrangement, or amendment, modification or termination of any existing or future
agreement or arrangement, that
15
would conflict with the other terms of this Section 3.1 or OM plc’s rights under this Agreement or any Other
Agreement;
provided , that, this Section 3.1 shall not apply with respect to any Affiliate of the Company to the extent that the Company
does not have sufficient Control over such Affiliate to procure such conduct from such Affiliate; provided, that such Control
shall be deemed to exist in the case of any Subsidiary that is not specifically identified in clause (iii) of the definition of
Subsidiary.
ARTICLE IV
INFORMATION, DISCLOSURE AND FINANCIAL ACCOUNTING
4.1
Information Rights.
(a)
Without limiting any other rights that OM plc or its Subsidiaries may have prior to the Majority Holder Date,
whether under this Agreement or otherwise, unless otherwise requested in writing by OM plc, until the Third
Threshold Date,
(i)
the Company shall provide OM plc with (A) information and data reasonably requested by OM plc relating to
the business and financial results of the Company and its Subsidiaries and (B) access, upon reasonable written
notice and during usual business hours, to the Company’s personnel, data and systems;
(ii)
the Company shall inform OM plc promptly (and in any event within three Business Days of occurrence) of
any events or developments that might reasonably be expected to materially affect the Company’s consolidated
financial results or otherwise be material to the Company; and
(iii)
the Company shall provide, as promptly as reasonably possible (and in any event within two Business Days)
of any request from OM plc (unless not reasonably available within such time, in which case as soon as
possible thereafter), any information, records or documents (A) requested or demanded by any governmental,
regulatory, judicial, supranational or self-regulatory authority having jurisdiction or oversight authority over
any member of the OM plc Group or any Subsidiary thereof or (B) deemed necessary or advisable by any
member of the OM plc Group in connection with any filing, report, response or communication made by any
member of the OM plc Group or any Subsidiary thereof with or to an authority referred to in clause (A) of this
Section
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4.1(a)(iii) (whether made pursuant to specific request from such authority or in the ordinary course).
4.2
(b)
Without limiting any other rights that OM plc or its Subsidiaries may have prior to the Majority Holder Date,
whether under this Agreement or otherwise, until the Second Threshold Date, the Company shall inform OM plc
promptly (and in any event within two Business Days) of all inquiries made or received by the Company regarding a
potential COC Transaction and all discussions in which the Company (or any of its agents or other representatives)
participates regarding a COC Transaction. When so informing OM plc, the Company shall inform OM plc of the
identity of the other Person(s) involved in such inquiries or discussions, and the proposed material terms and
conditions (if any) of any such transaction (including a copy of any such proposal or written terms and conditions
and any amendments or modifications thereto). As requested by OM plc from time to time while such discussions
continue, the Company shall, in person or by telephone, provide OM plc a summary of the status of such discussions
and the material resolved or unresolved issues related thereto, including proposed amendments to the price and other
material terms of such proposed COC Transaction. The Company shall, promptly upon receipt thereof, provide OM
plc with copies of all drafts and final versions (and any comments thereon) of term sheets, draft agreements and
other material documents relating to such COC Transaction exchanged between the proposed parties thereto.
(c)
In connection with the receipt of information by OM plc pursuant to this Section 4.1, OM plc shall employ
reasonable procedures to restrict access to such information to only those Persons whom OM plc determines have a
need to access such information. For the avoidance of doubt, the provisions of Section 9.10 hereof shall apply to all
information provided to OM plc pursuant to this Section 4.1.
(d)
In no event shall the Company be obligated to deliver any information with respect to a Subsidiary that is not
otherwise in the possession of or available to the Company.
General Information Requirements.
(a)
All information provided by the Company or any of its Subsidiaries to OM plc pursuant to Section 4.1 shall be in
the format and detail as reasonably requested by OM plc. All financial statements and information provided by the
Company or any of its Subsidiaries to OM plc pursuant to Section 4.1 shall be provided under IFRS.
(b)
Subject to any other policies or procedures adopted by the Board, OM plc shall provide the Company with all
software and other applications necessary for the Company to prepare and submit to OM plc the required
17
financial information including software and other applications to reconcile the income, equity and any required
balance sheet accounts from the Company’s financial statements to the required OM plc accounting. OM plc shall
provide the Company with at least thirty (30) days’ notice of any change in its administrative practices and policies
as they relate to the obligations of the Company pursuant to Section 4.2(a), including any change in such policies
relating to reporting times and delivery methods.
(c)
4.3
4.4
With respect to any information provided by the Company or any of its Subsidiaries to OM plc that is contained in,
or used in the preparation of, any public disclosure of OM plc, the Company shall not provide any such information
that contains an untrue statement of a material fact, or omits to state a material fact necessary to make such
information not misleading.
Reporting Coordination Committee.
(a)
Subject to any other policies or procedures adopted by the Board, to facilitate the coordination of financial
reporting, the Company and OM plc shall establish a reporting coordination committee, which shall have a
membership that includes representatives of the accounting groups of OM plc and the Company and such other
members as shall be mutually agreed between the Company and OM plc (the “Reporting Coordination
Committee” ).
(b)
The Reporting Coordination Committee shall meet at least quarterly to (i) monitor the financial reporting protocols
between the Company and OM plc and make recommendations as to any appropriate changes; (ii) determine
appropriate reporting deadlines consistent with the public reporting obligations of the Company and OM plc; and
(iii) make such other determinations regarding reporting procedures, technologies and personnel as shall be
necessary or advisable to facilitate accurate and efficient financial reporting between the Company and OM plc.
Matters Concerning Auditors.
(a)
Until the date on which OM plc is no longer required under IFRS to consolidate the Company’s financial
statements with its financial statements, OM plc shall have full access, upon reasonable written notice and during
usual business hours, to the Company Auditor and to the Company’s internal audit function (through the Company’s
head of internal audit), including access to work papers (and the right to make copies and take extracts thereof) and
the personnel responsible for conducting the Company’s quarterly reviews and annual audit, and shall be provided
with copies of all material correspondence between the Company and the Company Auditor.
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(b)
4.5
Notwithstanding Section 4.4(a), neither OM plc nor the Company shall take any action that would cause either the
Company Auditor or the OM plc Auditor, respectively, not to be independent with respect to the Company or OM
plc.
Release of Information and Public Filings.
(a)
(b)
Until the Second Threshold Date:
(i)
The Company shall coordinate with OM plc with respect to the public release of any material information
relating to the Company. The Company shall, to the extent practicable, provide OM plc with a copy of any
such proposed public release no later than two (2) Business Days prior to publication, and shall consider in
good faith incorporating any comments provided thereon by OM plc prior to such publication;
(ii)
The Company and OM plc shall consult on the timing of their annual and quarterly earnings releases and, to
the extent practicable, each Party shall give the other Party an opportunity to review the information therein
relating to the Company and its Subsidiaries and to comment thereon. In the event that the Company is
required by Applicable Law to publicly release information concerning the Company’s financial information
for a period for which OM plc has yet to publicly release financial information, the Company shall provide OM
plc notice of such release of such information as soon as practicable prior to such release of such information;
and
(iii)
Each of OM plc and the Company shall take reasonable steps to cooperate with each other in connection with
the preparation, printing, filing, and public dissemination of their respective audited annual financial
statements, their respective annual reports to shareholders, their respective annual, quarterly and current reports
under the Exchange Act, any prospectuses and other filings made with the U.S. Securities and Exchange
Commission, any filings made with the UK Registrar of Companies and any other required regulatory filings.
Notwithstanding the foregoing, in no event shall the rights set forth in this Section 4.5 apply to the extent that they
would prevent the Company or OM plc from complying with its disclosure or other obligations under Applicable
Law.
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ARTICLE V
SUBSEQUENT SALES OF ORDINARY SHARES
5.1
Registration Rights.
The Parties shall execute and deliver, concurrently with the execution and delivery of this Agreement, the Registration Rights
Agreement.
5.2
Preemptive Rights.
(a)
Notwithstanding any previous disapplication of statutory pre-emption rights by the Company’s shareholders in
general meeting, as soon as practicable after determining to issue any Ordinary Shares or securities convertible into,
exercisable or exchangeable for, Ordinary Shares ( “Purchase Right Shares” ), but in any event no fewer than
twenty (20) Business Days prior to entering into a binding agreement to issue Purchase Right Shares to any Person
other than OM plc or any of its Subsidiaries (a “Purchase Right Transaction” ), the Company shall, in writing,
offer, subject to consummation of the Purchase Right Transaction, to sell to OM plc (which offer may be assigned
by OM plc to a Subsidiary of OM plc) the Purchase Right Share Amount at the Purchase Right Share Price. The
Company shall describe the proposed Purchase Right Transaction in reasonable detail in such written offer,
including the range of prices (which may be expressed in terms of discount and/or premium to the trading price of
Ordinary Shares at the time the Company enters into a binding agreement to issue Purchase Right Shares) within
which the Company reasonably expects to sell Purchase Right Shares in the Purchase Right Transaction.
(b)
For purposes of this Section 5.2, the “Purchase Right Share Price” shall be the lowest purchase price (which
need not be determined until the time at which the Company enters into definitive documentation with respect to the
Purchase Right Transaction), if any, to be paid by a subscriber for or recipient of Purchase Right Shares in the
Purchase Right Transaction; and the “Purchase Right Share Amount” shall be that number of the Purchase Right
Shares as is equal to the amount obtained by multiplying the total number of Purchase Right Shares by a fraction,
the numerator of which is the number of Ordinary Shares beneficially owned by OM plc, and the denominator of
which is the total number of Ordinary Shares (excluding Ordinary Shares held in treasury) outstanding, in each case
as of the time that the Company makes the offer to OM plc pursuant to Section 5.2(a) hereof.
(c)
If the offer referred to in Section 5.2(a) hereof is irrevocably accepted (subject only to required regulatory
approvals, if any) in writing within fifteen (15) Business Days after such offer is delivered to OM plc, then,
20
only if the Purchase Right Transaction is consummated and the price per Purchase Right Share falls within the price
range set forth in the written offer delivered to OM plc in accordance with Section 5.2(a), the Company shall issue
or sell to OM plc (or any of its Subsidiaries, as the case may be), and OM plc (or any of its Subsidiaries, as the case
may be) shall purchase or subscribe from the Company, that number of Purchase Right Shares as is equal to the
Purchase Right Share Amount, at the Purchase Right Share Price.
(d)
If the offer referred to in Section 5.2(a) hereof is not irrevocably accepted (subject only to required regulatory
approvals, if any) in writing within fifteen (15) Business Days after such offer is delivered to OM plc, the Company
will be free to consummate the Purchase Right Transaction described in the written offer delivered to OM plc in
accordance with Section 5.2(a), within the price range described in such written offer, without issuing or selling any
Purchase Right Shares to OM plc or any of its Subsidiaries. The Company shall not consummate any Purchase Right
Transaction other than (i) a Purchase Right Transaction described in the previous sentence or (ii) a Purchase Right
Transaction described in Section 5.2(c) that is consummated within the price range described in a written offer to
OM plc in accordance with Section 5.2(a). For the avoidance of doubt, nothing in this Section 5.2 shall affect the
approval rights of OM plc contained in Section 3.1 hereof.
(e)
The purchase and sale or issue and subscription (as the case may be) of any Purchase Right Shares pursuant to
this Section 5.2 shall take place concurrently with the closing of the Purchase Right Transaction, or, if a concurrent
closing is not practicable, as promptly as practicable thereafter. At the time of purchase or issuance, the Company
shall deliver to OM plc (or any of its Subsidiaries, as the case may be) certificates (or, in the event that the Company
issues securities to a third party in an uncertificated form, other evidence of ownership) registered in the name of
OM plc (or any of its Subsidiaries, as the case may be) representing the Purchase Right Shares purchased or issued,
and not less than two (2) Business Days prior to the date of purchase or issuance OM plc (or any of its Subsidiaries,
as the case may be) shall transfer to the Company the purchase price therefor in United States dollars by bank check
or wire transfer of immediately available funds, as specified by the Company, to an account designated by the
Company.
(f)
The Company and OM plc each agree to use all commercially reasonable endeavours to obtain any regulatory,
stock exchange, or other approval required for any purchase or issuance of Purchase Right Shares by OM plc (or any
of its designated Subsidiaries) pursuant to this Section 5.2.
(g)
The provisions of this Section 5.2 shall apply, with the necessary changes, to any sale by the Company of
Ordinary Shares held in treasury.
21
(h)
Notwithstanding the foregoing, the provisions of paragraphs (a) to (g) of this Section 5.2 shall not apply to
Purchase Right Shares issued:
(i)
as consideration for M&A Transactions;
(ii)
as Equity Awards;
(iii)
pursuant to the underwriting agreement for the initial public offering of the Ordinary Shares, including any
“greenshoe” or over-allotment option;
(iv)
as part of any transaction approved by OM plc pursuant to its consent rights set forth in Section 3.1 hereof,
unless otherwise provided in such consent; or
(v)
5.3
at any time after the Third Threshold Date.
Lock-Up Provisions.
(a)
At any time following the Completion of the IPO, in connection with any underwritten offering of Ordinary
Shares (whether or not pursuant to the Registration Rights Agreement), the Company shall, and shall cause the
Executive Officers and Directors to, and, prior to the Third Threshold Date, OM plc shall, and shall cause its
Subsidiaries to, agree with the underwriters in such offering to a lock-up period of up to ninety (90) days (as
determined by the underwriters), subject to customary extension provisions and carve-outs.
(b)
Notwithstanding Section 5.3(a) hereof, neither OM plc nor any of its Subsidiaries shall be obligated to agree to
any lock-up period during which it would be prevented from selling all or any portion of its Ordinary Shares in
privately negotiated transactions that are not executed through the facilities of a securities exchange.
5.4
Transfers by OM PLC . In connection with the proposed disposition (direct or indirect) by any member of the OM plc Group prior
to the Third Threshold Date of at least seven percent (7%) of the outstanding Ordinary Shares, the Company shall use all reasonable
endeavours to take such actions as may be requested by OM plc including making available for review by the proposed acquirers of Ordinary
Shares and their financing sources and other transaction participants, and their respective advisors, all financial and other records, corporate
documents and documents relating to the business of the Company and its Subsidiaries reasonably requested by OM plc (subject to the
execution of a customary confidentiality agreement); making available senior management of the Company for customary management
presentations, due diligence and drafting activity; obtaining any required consents of third parties (including Fund and other clients) and
governmental authorities; and entering into customary agreements including purchase and sale agreements that include customary
representations and warranties by the Company, provided that the obligation of the Company to enter into customary agreements shall not be
deemed to require the Company to indemnify the acquirer for breach of such
22
representations and warranties or otherwise be liable for damages arising from a breach of any such representation or warranty.
ARTICLE VI
OTHER PROVISIONS
6.1
Other Agreements . The Parties shall execute and deliver, and shall cause their respective Subsidiaries to execute and deliver, on or
prior to the Completion of the IPO, the Other Agreements.
6.2
Access to Personnel and Data . Without limiting any other rights that OM plc or its Subsidiaries may have prior to the Majority
Holder Date, whether under this Agreement or otherwise, in addition to the specific rights of OM plc set forth elsewhere in this Agreement,
until the Third Threshold Date and subject to Section 4.1(c) and (d) hereof
(i)
the Company shall continue to provide representatives of OM plc with reasonable access to the Company’s
personnel (including senior-level management and other employees) and data; and
(ii)
OM plc shall continue to provide representatives of the Company with reasonable access to OM plc’s
personnel (including senior-level management and other employees) and data.
6.3
Internal Communications Protocol . In addition to the specific rights of OM plc set forth elsewhere in this Agreement, until the
Third Threshold Date, the Company and OM plc agree to mutually consult with respect to internal communications between the Company and
its Subsidiaries which could reasonably be expected to be material to the Company.
6.4
Access to Historical Records.
(a)
For a period of two years following the Third Threshold Date, subject to an extension of up to ten years if
required due to a legal, tax, accounting or regulatory requirement applicable to the requesting Party, OM plc and the
Company shall retain the right to access such records of the other which exist resulting from OM plc’s control or
ownership of all or a portion of the Company, its shares, its securities or its assets. Upon reasonable notice and at
each Party’s own expense, OM plc (and its authorized representatives) and the Company (and its authorized
representatives) shall be afforded access to such records at reasonable times and during normal business hours and
each Party (and its authorized representatives) shall be permitted, at its own expense, to make abstracts from, or
copies of, any such records.
23
6.5
Indemnification; Liability Insurance.
(a)
Until at least the day after the last date on which an OM plc Individual is a Director, officer or employee of the
Company or any of its Subsidiaries, the Company shall grant indemnification (including advancement of expenses)
to each such Director, officer and employee of the Company or any of its Subsidiaries to the greatest extent
permitted under Applicable Law, as may be amended from time to time. Such indemnification and advancement
shall continue as to any OM plc Individual (i) who becomes entitled to indemnification or advancement on or prior
to such date, notwithstanding any change (except those changes made as required by Applicable Law) in the
Company’s indemnification or advancement policies following such date, and (ii) with respect to liabilities existing
or arising from events that have occurred on or prior to such date, notwithstanding such OM plc Individual’s ceasing
to be a Director, officer or employee of the Company.
(b)
The Company warrants and represents that, as of the date of this Agreement, the Company has insurance
coverage with respect to director and officer liability ( “D&O Coverage” ) and fiduciary liability ( “Fiduciary
Coverage” ) covering Directors, officers and employees of the Company, including OM plc Individuals serving in
any such capacity at the Company (collectively, the “Agreed Coverage” ).
(c)
Subject to the provisions of this Section 6.5, the D&O Coverage and Fiduciary Coverage shall be renewed
annually and kept in force by the Company on substantially the same terms in order to cover any claims made on or
prior to the sixth anniversary of the last date on which any OM plc Individual is a Director, officer or employee of
the Company. The Company shall be responsible for the cost of D&O Coverage and Fiduciary Coverage that covers
Directors, officers and employees of the Company, including OM plc Individuals serving in any such capacity at the
Company.
(d)
As used in this Section 6.5, the term “D&O Coverage,” “Fiduciary Coverage”, and “Agreed Coverage” shall
mean the coverages in place as of the date of this Agreement and “Coverage Change” shall mean any renewal,
amendment, endorsement or replacement of such coverage. A change in premium for any such Agreed Coverage
shall not be considered a “Coverage Change.”
(e)
Promptly upon receipt of any written request from OM plc, the Company will supply OM plc with copies of
any policies of insurance, binders, proposed terms or wording and other relevant information or documents with
respect to the Agreed Coverage or any actual or proposed Coverage Change regarding the Agreed Coverage or
Coverage Change.
(f)
The Company shall provide OM plc with reasonable prior notice of any proposed Coverage Change and any
proposed change in premiums on the
24
Agreed Coverage. No Coverage Change shall become effective that would have the effect of making the Agreed
Coverage (i) less favorable to OM plc Individuals in comparison to Directors, officers or employees of the Company
than is the Agreed Coverage prior to such Coverage Change, or (ii) less favorable to OM plc and its Subsidiaries in
comparison to the Company and its Subsidiaries than is the Agreed Coverage prior to such Coverage Change,
without the prior written consent of OM plc.
(g)
In the event that any insured makes a claim or delivers a notice of circumstances under any insurance policy
providing the Agreed Coverage, then, provided that attorney-client privilege and attorney-work product privilege are
protected and preserved with respect to such matters (including by entering into a common interest agreement), each
of the Company (with respect to claims or notices by the Company or any of its Subsidiaries or any Director, officer
or employee of the Company) and OM plc (with respect to claims or notices by OM plc or any of its Subsidiaries or
any OM plc Individual) shall promptly provide written notice to the other of such claim or notice of circumstances
and shall continue to keep the other informed of the status and progress of such claim or notice of circumstances,
including providing copies of such relevant documentation and correspondence with the insurers as the other may
request.
(h)
In the event that multiple insureds make claims or deliver notices of circumstances with respect to the same
underlying events or facts under any insurance policy providing the Agreed Coverage, then, provided that
attorney-client privilege and attorney-work product protection are protected and preserved with respect to such
matters (including by entering into a common interest agreement), each of the Company (with respect to claims or
notices by the Company or any of its Subsidiaries or any Director, officer or employee of the Company other than an
OM plc Individual) and OM plc (with respect to claims or notices by OM plc or any of its Subsidiaries or any OM
plc Individual) shall cooperate with the other in connection with (i) the defense of allegations from third parties with
respect to the underlying events or facts, and (ii) dealing with the insurers providing the Agreed Coverage with
respect to asserting rights to coverage in respect of such third party claims and the underlying events or facts, in all
cases with the intention of seeking to maximize the aggregate benefits to all insureds under the Agreed Coverage in
respect of such third party claims and the underlying events or facts.
(i)
In the event that any conflict of interest arises between insureds that make claims or deliver notices of
circumstances under any insurance policy providing the Agreed Coverage, then each of the Company (with respect
to claims or notices by the Company or any of its Subsidiaries or any Director, officer or employee of the Company)
and OM plc (with respect to claims or notices by OM plc or any of its Subsidiaries or any OM plc
25
Individual) shall use commercially reasonable endeavours to resolve such conflict or to manage it in such a way as
to maximize the aggregate benefits to all insureds under the Agreed Coverage.
6.6
(j)
For purposes of this Section 6.5, “OM plc Individual” shall mean (i) any director, officer or employee of
OM plc or any of its Subsidiaries, (ii) any Person designated by OM plc as an OM plc Director and who serves in
such capacity, or (iii) any Person who, with his consent, is named in any Registration Statement of the Company
under the Securities Act as about to become a Director of the Company.
(k)
Without prejudice to Section 6.5(a), where any OM plc Individual becomes involved in any claim, action,
cause of action, suit, proceeding or investigation of any nature in connection with which he may be entitled to
indemnification by the Company, the Company shall undertake to pay to any third party (as a direct and primary
obligation of the Company to that third party) any expenses in connection therewith for which the OM plc
Individual would be entitled to indemnification. This Section 6.5(k) shall apply to such expenses as are identified
by the OM plc Individual. The OM plc Individual shall not be entitled to advancement of any such expenses that
the Company is obligated to pay directly to a third party.
Non-Solicitation.
(a)
Until the Third Threshold Date, OM plc shall not, nor shall it cause or permit any member of the OM plc
Group to, solicit for employment, recruit for employment or hire (or attempt to solicit, recruit or hire) any employees
of the Company or any of its Subsidiaries who are known by OM plc (or the relevant member of the OM plc Group)
to be employed by the Company or any of its Subsidiaries without the prior written consent of the Company; and
(b)
until the Third Threshold Date, the Company shall not, nor shall it cause or permit any of its Subsidiaries to,
solicit for employment, recruit for employment or hire (or attempt to solicit, recruit or hire) any employees of any
member of the OM plc Group who are known by the Company (or its relevant Subsidiary) to be employed by the
OM plc Group without the prior written consent of OM plc,
provided, however, that nothing contained in this Section 6.6 shall prohibit or apply to a Party or any of its Subsidiaries
conducting general advertisements that are not specifically targeted at employees of another Party or any of its Subsidiaries;
and provided further, that the restrictions set forth in this Section 6.6 shall not apply to solicitations, recruitment or hiring by
the “Affiliates” of the Company, as such term is used in the IPO Registration Statement: if neither the Company nor any of
its Subsidiaries other than such “Affiliates” has induced,
26
encouraged or participated in the otherwise prohibited solicitation, recruitment or hiring by such “Affiliate”.
6.7
No commitment to finance . Nothing in this Agreement shall oblige any member of the OM plc Group to provide any finance
required by the Company or any of its Subsidiaries.
6.8
Additional Covenant . The Company shall not (either directly or indirectly through a Subsidiary), and shall procure that none of its
Subsidiaries shall, enter into any agreement that, or amend or modify any existing agreement such that the resulting agreement, by its terms
would conflict with the performance of their respective obligations under the DTA Deed, the Co-Investment Deed or the Seed Capital
Management Agreement (each as defined in Schedule 1.1(uu)).
ARTICLE VII
WARRANTIES
7.1
Warranties . Each Party warrants as follows:
(a)
it has full power and capacity to enter into and perform its obligations under this Agreement, and has taken all
necessary action to authorise the execution, delivery and performance of this Agreement by it;
(b)
this Agreement has been duly and validly authorised, executed and delivered by such Party and constitutes a
legal, valid and binding obligation of such Party, enforceable against such party in accordance with its terms; and
(c)
the execution and delivery of this Agreement and performance by such Party of its obligations under this
Agreement does not conflict with, result in the breach of any of the terms or conditions of, constitute a default under
or violate the organizational or constitutional documents of such party, any Applicable Law, any agreement or other
document or undertaking to which such Party is a party or by which such Party or its properties or other assets is
bound.
ARTICLE VIII
DISPUTE RESOLUTION
8.1
Arbitration.
(a)
Any dispute arising out of or in connection with this Agreement, including any question regarding its
existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the
London Court of International Arbitration ( “LCIA Court” ) which are deemed to be incorporated by reference into
this clause, save as modified herein:
27
(i)
(ii)
The seat of arbitration shall be London, England.
There shall be three arbitrators, one nominated by the claimant and one nominated by the respondent
within fifteen (15) days of respondent’s receipt of the claimant’s request for arbitration. If OM plc and
OMGUK are co-claimants or co-respondents to the arbitration, they shall be treated as one party for the
purposes of the nomination of an arbitrator. If any Party has not appointed its arbitrator within the 15-day
period specified herein, such appointment shall be made by the LCIA Court upon the written request of a
Party within fifteen (15) days of such request. The LCIA Court shall appoint the chairman within fifteen
(15) days of the nomination of the other two members of the tribunal. The hearing shall be held no later
than one-hundred-and-twenty (120) days following the appointment of the third arbitrator.
(iii)
In terms of procedure, the Parties agree that:
(A)
The Request shall be treated as the Claimant(s)’ Statement of Case.
(B)
The Statement of Defense shall be sent to the Registrar within fifteen (15) days of receipt of
notice of appointment of the third arbitrator.
(C)
A case management hearing shall take place within ten (10) days of receipt of the Statement of
Defense to determine the procedure leading up to the hearing. The Parties shall seek to agree to the
procedure between them, consistent with the provisions of this Section 8.1.
(D)
The Statement of Reply (if any) shall be sent to the Registrar within fifteen (15) days of receipt
of the Statement of Defense.
(E)
The Statement of Reply to Counterclaim (if any) shall be sent to the Registrar within fifteen (15)
days of receipt of the Statement of Reply.
(F)
The arbitral tribunal shall exercise its power to order the Parties to supply copies of any
documents in their possession, custody or power that are relevant to the subject matter of the dispute
taking into account the Parties’ desire that the arbitration be conducted expeditiously and cost
effectively. All disclosure of documents shall be completed within sixty (60) days of the appointment
of the third arbitrator.
28
(G)
The Parties agree that they shall have the right to be heard orally on the merits of the dispute.
(iv)
By agreeing to arbitration, the Parties do not intend to deprive a court of its jurisdiction to issue a
pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the
enforcement of any award. Without prejudice to such provisional remedies as may be available under the
jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies, to direct
the Parties to request that any court modify or vacate any temporary or preliminary relief issued by such
court, and to award damages for the failure of any Party to respect the arbitral tribunal’s orders to that
effect. For the purpose of any provisional relief contemplated hereunder, the Parties hereby submit to the
non-exclusive jurisdiction of the English Courts. Each Party unconditionally and irrevocably waives any
objections which they may have now or in the future to the jurisdiction of the English Courts including
objections by reason of lack of personal jurisdiction, improper venue, or inconvenient forum.
(v)
The award shall be in writing, shall state the findings of fact and conclusions of law on which it is
based, shall be final and binding and shall be the sole and exclusive remedy between the Parties regarding
any claims or counterclaims presented to the arbitral tribunal. Judgment upon any award may be entered in
any court having jurisdiction.
(vi)
The Parties will bear equally all fees, costs, disbursements and other expenses of the arbitration, and
each Party shall be solely responsible for all fees, costs, disbursements and other expenses incurred in the
preparation and prosecution of their own case; provided that in the event that a Party fails to comply with
the orders or decision of the arbitral tribunal, then such noncomplying Party shall be liable for all costs and
expenses (including attorney fees) incurred by the other Party in its effort to obtain either an order to
compel, or an enforcement of an award, from a court of competent jurisdiction.
(vii)
The arbitral tribunal shall have no authority to award punitive, exemplary or multiple damages or any
other damages not measured by the prevailing Parties’ actual damages.
(viii)
All notices by one Party to another in connection with the arbitration shall be in accordance with the
provisions of
29
Section 9.4 hereof, except that all notices for a demand for arbitration made pursuant to this Article VIII
must be made by personal delivery or receipted overnight courier. This agreement to arbitrate shall be
binding upon the successors and permitted assigns of each Party. This Agreement and the rights and
obligations of the Parties shall remain in full force and effect pending the award in any arbitration
proceeding hereunder.
8.2
Confidentiality . Except to the extent necessary to compel arbitration or in connection with arbitration of any dispute under this
Agreement, or for enforcement of an arbitral award, information concerning (a) the existence of an arbitration pursuant to this Article VIII,
(b) any documentary or other evidence given by a Party or a witness in the arbitration or (c) the arbitration award may not be disclosed by the
tribunal administrator, the arbitrators, any Party or its counsel to any Person not connected with the proceeding unless required by law or by a
court or competent regulatory body, and then only to the extent of disclosing what is legally required. A Party filing any document arising out
of or relating to any arbitration in court shall seek from the court confidential treatment for such document and provide notice thereof to the
non-disclosing Party.
8.3
Conduct During Dispute Resolution . The Parties shall continue the performance of their respective obligations under this
Agreement that are not the subject of dispute during the resolution of any dispute or agreement, including during any period of arbitration,
unless and until this Agreement is terminated or expires in accordance with its terms and conditions.
ARTICLE IX
GENERAL PROVISIONS
9.1
[Reserved] .
9.2
[Reserved] .
9.3
[Reserved] .
9.4
Notices.
(a)
Unless otherwise provided in this Agreement, all notices, consents and other communications provided for
hereunder shall be dated and in writing [(excluding email)] and shall be deemed to have been given (a) when
delivered, if delivered personally, sent by confirmed telecopy or sent by registered or certified mail, return receipt
requested, postage prepaid, provided that such delivery is completed during normal business hours of the recipient,
failing which such notice shall be deemed to have been given on the next Business Day, (b) on the next Business
Day if sent by overnight courier and delivered on such Business Day within ordinary business hours and, if not, the
next Business Day following delivery; and (c) when received, if received during normal business hours and, if not,
30
the next Business Day after receipt, if delivered by means other than those specified above. Such notices shall be
delivered to the address set forth below, or to such other address as a Party shall have furnished to the other Party in
accordance with this Section 9.4.
If to OM plc or OMGUK, to:
Old Mutual plc
5th Floor, Millennium Bridge House
2 Lambeth Hill
London EC4V 4GG, United Kingdom
Attention:
Phone No.:
E-mail:
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, New York 10036
Attention: Ralph Arditi
Phone No.:212-735-2000
Email: [email protected]
If to the Company:
c/o Old Mutual (US) Company Inc.
200 Clarendon Street, 53rd Floor
Boston, MA 02116
Attention: Steve Belgrad, CFO
Phone No.: 617-369-7371
Email: [email protected]
with a copy to:
Bingham McCutchen LLP
399 Park Avenue
New York NY 10022
Attention: Floyd I. Wittlin, Esq.
Phone: 212-705-7466
E-mail: [email protected]
9.5
Binding Nature of Agreement . This Agreement shall be binding upon and inure to the benefit of and be enforceable by the
Parties hereto, their successors in interest and respective permitted assigns.
31
9.6
Remedies.
(a)
The Parties hereby expressly recognize and acknowledge that immediate, extensive and irreparable damage
would result, no adequate remedy at law would exist and damages would be difficult to determine in the event that
any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached.
Therefore, in addition to, and not in limitation of, any other remedy available to any Party, and notwithstanding the
provisions of Article VIII, an aggrieved Party under this Agreement is entitled to specific performance of the terms
hereof and immediate injunctive relief, without the necessity of proving the inadequacy of money damages as a
remedy. Neither Party shall be required to obtain or furnish any bond or similar instrument in connection with or as
a condition to obtaining or seeking any such remedy. For the avoidance of doubt, nothing in this Agreement shall
diminish the availability of specific performance of the obligations under this Agreement or any other injunctive
relief.
(b)
Such remedies, and any and all other remedies provided for in this Agreement, shall be cumulative in nature
and not exclusive and shall be in addition to any other remedies whatsoever which any Party may otherwise have.
Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable
certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific
performance will not cause an undue hardship to the Parties. Each Party hereby further agrees that in the event of
any action by the other Party for specific performance or injunctive relief, it will not assert that a remedy at law or
other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or
violation should not be available on the grounds that money damages are adequate or any other grounds.
9.7
Governing Law . This Agreement (together with any non-contractual obligations arising out of it) shall be construed and
enforced in accordance with, and the rights and duties of the Parties shall be governed by, the law of England and Wales.
9.8
Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but
both of which together shall constitute one and the same instrument.
9.9
Severability . In the event that any one or more of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby, it being intended
that all of the rights and privileges of the Parties shall be enforceable to the fullest extent permitted by law. To the extent that any such
provision is so held to be invalid, illegal or unenforceable, the Parties shall in good faith use commercially reasonable endeavours
32
to find and effect an alternative means to achieve the same or substantially the same result as that contemplated by such provision.
9.10
Confidential Information . Each Party shall treat all information provided to it by any other Party with the same degree of care
as such Party treats its own information of the same nature (including, compliance with Regulation FD under the Exchange Act to the extent
applicable), provided that this Section 9.10 shall not apply to information relating to or disclosed in the IPO Registration Statement or in
connection with any registration statement filed in accordance with the terms of the Registration Rights Agreement. Proprietary information
received by a Party from any other Party shall not be utilized by such Party to engage, directly or indirectly (including through Subsidiaries) in
a business in competition with the business of such other Party or any of its Subsidiaries. Notwithstanding the foregoing, the restrictions in
this Section 9.10 shall not apply to any Party to the extent that ( i ) any information is or becomes generally available to the public other than as
a result of disclosure by such Party, (ii) any information is required by Applicable Law to be disclosed by such Party or (iii) any information
was or becomes available to such Party on a non-confidential basis and from a source (other than another Party or any Affiliate or
representative of such other Party) that is not bound by a confidentiality agreement with respect to such information.
9.11
Market abuse . In no event shall any Party or any of its Subsidiaries or any of their respective directors, officers, employees,
agents or representatives communicate material non-public information or price-sensitive information of any other Party in connection with
acquiring or disposing of securities of any other Party or transacting in any way in such securities. Each Party shall be liable for any breach of
this Section 9.11 by it or any of its Subsidiaries or any of their respective directors, officers, employees, agents and representatives.
9.12
Amendment, Modification and Waiver . This Agreement may be amended, modified or supplemented only by written
agreement executed by the Parties. Any failure of a Party to comply with any obligation, covenant or agreement contained in this Agreement
may be waived by the Party entitled to the benefits thereof only by a written instrument duly executed by the Party granting such waiver, but
such waiver or failure to insist upon strict compliance with such obligation, covenant or agreement shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure of compliance.
9.13
No partnership or agency . Nothing in this Agreement shall create a partnership, joint venture or establish a relationship of
principal and agent or any other fiduciary relationship between or among any of the Parties.
9.14
Other business . The Company:
(a)
acknowledges that each of the other Parties and their respective members, partners, shareholders, officers and
directors, employees, agents, representatives, appointed members of the Board and Subsidiaries ( “OM Persons” )
have or may have in the future other business interests, activities and investments, some of which may be in conflict
or competition with the business of the Company or any of its Subsidiaries;
33
9.15
(b)
agrees that, subject to Section 9.10, each of the OM Persons shall be entitled to carry on such other business
interests, activities and investments in such manner as they, in their sole discretion, may choose, and shall not have
any obligation to offer any interest or participation in or arising out of such activities, or the income or profits
derived therefrom, to the Company or to any of its Subsidiaries; and
(c)
agrees that, subject to Section 9.10, the pursuit of such activities, even if competitive with the business of the
Company or any of its Subsidiaries, will not be deemed wrongful or improper.
No Assignment.
(a)
Except as otherwise provided for in Section 9.15(b) or otherwise in this Agreement, neither this Agreement
nor any of the rights of any Party under this Agreement may be assigned by such Party without the prior written
consent of the other Parties.
(b)
Notwithstanding Section 9.15(a) above, OM plc and OMGUK may, without such consent, assign this
Agreement or any of their respective rights hereunder to:
(i)
(ii)
any other member of the OM Group; or
any other Person, provided that with respect to this Section 9.15(b)(ii) only (1) the assignee of such
rights shall acquire initially the rights hereunder that OM plc would have at the level of ownership acquired
by the assignee (subject to a change in such rights as the assignee’s level of ownership changes, as herein
provided), (2) OM plc may only make one assignment, (3) the rights of OM plc under Sections 3.1 and
4.1(b) only may be assigned to a Person to whom OM plc or any of its Subsidiaries transfers a majority of
the outstanding Ordinary Shares, and (4) the assignee of such rights (and any future assignee) may
subsequently assign its rights only once, in which event the subsequent assignee initially shall have the
rights hereunder that the assignor would have at the level of ownership acquired by such assignee (subject
to a change in such rights as the assignee’s level of ownership changes, as herein provided).
9.16
Further Assurance . Each Party shall, on being required to do so by any other Party, perform or procure the performance of all
such acts and/or execute and/or deliver or procure the execution and/or delivery of all such documents (in each case at its own expense), as may
be required by law or as any other Party may from time to time reasonably require in order to implement and give full effect to this Agreement.
34
9.17
Contracts (Rights of Third Parties) Act . A Person who is not a party to this Agreement shall not have any rights under the
Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement, save that any OM plc Individual shall be
entitled to enforce any provision of Section 6.5 relating to any indemnity or insurance or provision of funds intended to benefit such OM plc
Individual.
9.18
Discretion of Parties . Where this Agreement requires or permits any Party to make or take any decision, determination or
action with respect to matters governed by this Agreement, unless expressly provided otherwise, such decision, determination or action may be
made or taken by such Party in its sole and absolute discretion.
9.19
Entire Agreement . This Agreement, including any schedules or exhibits hereto, embodies the entire agreement and
understanding of the Parties hereto in respect of the subject matter covered by this Agreement. Notwithstanding the foregoing, nothing in this
Agreement shall limit, reduce or eliminate any rights that OM plc or its Subsidiaries may otherwise have.
9.20
Conflicts
(a)
Notwithstanding anything in this agreement to the contrary, in the event that any term of this Agreement
conflicts with any policy, practice or procedure duly adopted by the Board of Directors as contemplated by
Section 2.8, the policy, practice or procedure (as applicable) shall prevail.
(b)
Subject to Applicable Law, in the event that any provision of this Agreement conflicts with any provision of
the Articles other than Article 155, the terms of this Agreement shall prevail. The Parties shall each take all action
within their powers to ensure that the Articles are at all times consistent with the provisions of this Agreement.
9.21
Term . Except to the extent set forth in the following sentence, this Agreement shall terminate and be of no further force or
effect as of the Third Threshold Date. Notwithstanding the foregoing sentence, the provisions of Article I, Article VIII, Article IX, Section 6.5
and Section 6.8 hereof shall survive termination of this Agreement.
35
IN WITNESS WHEREOF, the Parties have caused this Shareholder Agreement to be executed as of the date first above written.
Executed by OLD MUTUAL PLC acting by:
/s/ Julian Roberts
Director
Name of director: Julian Roberts
in the presence of:
/s/ Vance Chapman
Witness
Name of witness: Vance Chapman
Address: 41 Lothbury, London EC2R 7HF
Occupation: Lawyer
Executed by OM ASSET MANAGEMENT PLC acting by:
/s/ Donald Schneider
Director
Name of director: Donald Schneider
in the presence of:
/s/ Sophie Donnithorne-Tait
Witness
Name of witness: Sophie Donnithorne-Tait
Address: 41 Lothbury, London EC2R 7HF
Occupation: Lawyer
36
Executed by OM GROUP (UK) LIMITED acting by:
/s/ Martin C. Murray
Director
Name of director: Martin C. Murray
in the presence of:
/s/ Hannah Marshall
Witness
Name of witness: Hannah Marshall
Address: 41 Lothbury, London EC2R 7HF
Occupation: Trainee Solicitor
37
Schedule 1.1(uu)
Other Agreements

Co-Investment Deed by and between OMGUK and the Company (the “ Co-Investment Deed ”)

Deferred Tax Asset Deed by and between the Company and OMGUK (the “ DTA Deed ”)



Seed Capital Management Agreement by and among Old Mutual (US) Holdings Inc., OM plc and the other entities listed therein
(the “ Seed Capital Management Agreement ”)
Registration Rights Agreement by and among the Company, OMGUK and OM plc
Transitional Intellectual Property License Agreement, by and among, OM plc, Old Mutual Life Assurance Company (South
Africa) Ltd. and the Company
Exhibit 10.7
Execution Copy
REVOLVING CREDIT AGREEMENT
dated as of October 15, 2014,
among
OM ASSET MANAGEMENT PLC,
THE LENDERS NAMED HEREIN,
and
CITIBANK, N.A., as Administrative Agent
CITIGROUP GLOBAL MARKETS INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms
SECTION 1.02. Classification of Loans and Borrowings
SECTION 1.03. Terms Generally
SECTION 1.04. Accounting Terms; GAAP
SECTION 1.05. References to Agreements
1
26
26
26
27
ARTICLE II
The Credits
SECTION 2.01. Commitments
SECTION 2.02. Loans and Borrowings
SECTION 2.03. Requests for Borrowings
SECTION 2.04. Letters of Credit
SECTION 2.05. Funding of Borrowings
SECTION 2.06. Interest Elections
SECTION 2.07. Fees
SECTION 2.08. Repayment of Loans; Evidence of Debt
SECTION 2.09. Interest on Loans
SECTION 2.10. Alternate Rate of Interest
SECTION 2.11. Termination and Reduction of Commitments
SECTION 2.12. Prepayment of Loans
SECTION 2.13. Increased Costs
SECTION 2.14. Break Funding Payments
SECTION 2.15. Taxes
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
SECTION 2.17. Defaulting Lenders
SECTION 2.18. Mitigation Obligations; Replacement of Lenders
SECTION 2.19. Incremental Commitments
27
27
28
29
33
34
35
36
36
37
38
38
39
41
41
47
48
51
52
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers
SECTION 3.02. Authorization and Enforceability
SECTION 3.03. Approvals; No Conflict
SECTION 3.04. Financial Condition; No Material Adverse Change
SECTION 3.05. Properties
54
55
55
55
56
i
SECTION 3.06. Litigation and Environmental Matters
SECTION 3.07. Compliance with Laws and Agreements
SECTION 3.08. Investment Company Status
SECTION 3.09. Margin Regulations
SECTION 3.10. Taxes
SECTION 3.11. ERISA
SECTION 3.12. Disclosure
SECTION 3.13. Anti-Corruption Laws and Sanctions
56
56
56
57
57
57
57
58
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Initial Borrowing
SECTION 4.02. Conditions to Each Credit Event
58
59
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements; Ratings Changes and Other Information
SECTION 5.02. Notice of Material Events
SECTION 5.03. Existence; Conduct of Business
SECTION 5.04. Payment of Obligations
SECTION 5.05. Maintenance of Properties; Insurance
SECTION 5.06. Books and Records; Inspection Rights
SECTION 5.07. Compliance with Laws
SECTION 5.08. Use of Proceeds
SECTION 5.09. Payment of OMGUK Dividend Note
60
62
62
62
62
63
63
63
63
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness
SECTION 6.02. Liens
SECTION 6.03. Sale and Lease-Back Transactions
SECTION 6.04. Fundamental Changes; Conduct of Business
SECTION 6.05. Asset Sales
SECTION 6.06. Transactions with Affiliates
SECTION 6.07. Limitation on Restricted Payments
SECTION 6.08. Limitation on Amendments to Certain Agreements
SECTION 6.09. Restrictive Agreements
SECTION 6.10. Hedging Agreements
SECTION 6.11. Permitted Activities of Holding Companies
SECTION 6.12. Financial Covenants
64
65
66
66
67
68
69
70
70
71
71
71
ii
ARTICLE VII
Events of Default
ARTICLE VIII
The Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices
SECTION 9.02. Survival
SECTION 9.03. Binding Effect
SECTION 9.04. Successors and Assigns
SECTION 9.05. Expenses; Indemnity; Damage Waiver
SECTION 9.06. Right of Setoff
SECTION 9.07. Applicable Law
SECTION 9.08. Waivers; Amendment
SECTION 9.09. No Fiduciary Relationship
SECTION 9.10. Entire Agreement
SECTION 9.11. WAIVER OF JURY TRIAL
SECTION 9.12. Severability
SECTION 9.13. Counterparts
SECTION 9.14. Headings
SECTION 9.15. Jurisdiction; Consent to Service of Process
SECTION 9.16. Confidentiality
SECTION 9.17. Electronic Communications
SECTION 9.18. USA Patriot Act
SECTION 9.19. Judgment Currency
77
77
78
78
81
83
83
83
84
85
85
85
85
85
85
86
87
88
88
iii
Schedule 2.01
Schedule 6.01
Schedule 6.02
Schedule 6.09
Exhibit A
Exhibit B
Exhibit C-1
Exhibit C-2
Exhibit D-1
Exhibit D-2
Exhibit D-3
Exhibit D-4
Exhibit E
Exhibit F
Commitments
Indebtedness
Liens
Restrictive Agreements
Form of Assignment and Assumption
Form of Borrowing Request
Form of Opinion of Bingham McCutchen LLP, New York counsel to the Borrower
Form of Opinion of Bingham McCutchen LLP, English counsel to the Borrower
Form of U.S. Tax Certificate for Non-U.S. Lenders that are not
Partnerships for U.S. Federal Income Tax Purposes
Form of U.S. Tax Certificate for Non-U.S. Lenders that are
Partnerships for U.S. Federal Income Tax Purposes
Form of U.S. Tax Certificate for Non-U.S. Participants that are not
Partnerships for U.S. Federal Income Tax Purposes
Form of U.S. Tax Certificate for Non-U.S. Participants that are
Partnerships for U.S. Federal Income Tax Purposes
Form of Compliance Certificate
Form of Affiliate Subordination Agreement
iv
REVOLVING CREDIT AGREEMENT dated as of October 15, 2014, among OM ASSET
MANAGEMENT plc, a public limited company organized under the laws of England and Wales (the “ Borrower ”),
the lenders from time to time party hereto and CITIBANK, N.A., as administrative agent for such lenders.
The Borrower has requested that the Lenders extend credit in the form of Commitments pursuant to which the Borrower may,
during the Availability Period, obtain Loans on a revolving credit basis and procure the issuance of Letters of Credit in an aggregate amount at
any time outstanding not in excess of US $350,000,000 (as such amount may be increased in accordance herewith).
The Lenders are willing to extend such credit to the Borrower, and the Issuing Bank is willing to issue such Letters of Credit,
in each case, on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms.
As used in this Agreement, the following terms shall have the meanings specified below:
“ ABR Borrowing ” means a Borrowing comprised of ABR Loans.
“ ABR Loan ” means a Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II.
“ Accounts ” means accounts payable owed to a Covered Subsidiary in respect of Management Fees or Performance Fees or
otherwise as compensation for the provision of investment management or advisory services.
“ Adjusted LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the product of (a) the LIBO Rate in effect for such Interest Period and
(b) Statutory Reserves.
“ Administrative Questionnaire ” means an Administrative Questionnaire supplied by the Agent.
“ Affiliate ” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. In no event shall the Agent or any
Lender be deemed to be an Affiliate of the Borrower or any of its Subsidiaries.
“ Affiliate Subordination Agreement ” means an Affiliate Subordination Agreement substantially in the form of Exhibit F or
otherwise satisfactory to the Agent.
“ Agent ” means Citibank in its capacity as administrative agent hereunder or any successor administrative agent appointed in
accordance with Article VIII hereof.
“ Agent Parties ” has the meaning assigned to such term in Section 9.17.
“ Agreement ” means this Revolving Credit Agreement, as amended from time to time in accordance with the terms hereof.
“ Alternate Base Rate ” means, with respect to any ABR Borrowing or overdue amounts hereunder for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal
Funds Effective Rate in effect on such day plus ½ of 1% and (c) the Adjusted LIBO Rate for a one-month Interest Period commencing on such
day (or, if such day is not a Business Day, the immediately preceding Business Day) plus 1%; provided that, for purposes of this definition the
Adjusted LIBO Rate on any day shall be based on the rate per annum equal to the London interbank offered rate as administered by the ICE
Benchmark Administration Limited (or any other Person that takes over the administration of such rate) for deposits in U.S. Dollars (for
delivery on such day) with a term of one month as displayed on the Reuters screen page that displays such rate (currently page LIBOR01) (or,
in the event such rate does not appear on a page of the Reuters screen, on the appropriate page of such other information service that publishes
such rate as shall be selected by the Agent from time to time in its reasonable discretion), at approximately 11:00 a.m., London time, two
Business Days prior to such day. If for any reason the Agent shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Agent to obtain a
quotation in accordance with the terms thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the first sentence of
this definition until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective from and including the effective date of such
change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, as the case may be.
“ Anti-Corruption Laws ” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its
Subsidiaries concerning or relating to bribery, corruption, or money laundering, including the U.S. Foreign Corrupt Practices Act and the UK
Bribery Act.
“ Applicable Percentage ” means, with respect to any Lender, the percentage of the total Commitments represented by such
Lender’s Commitment; provided that when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the
aggregate amount of the Lenders’ Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s
Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments of Credit Exposures that shall have occurred after such termination or expiration.
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“ Applicable Rate ” means, for any day, with respect to the commitment fees payable hereunder, or with respect to any
Eurodollar Loan or ABR Loan, as the case may be, the applicable rate per annum set forth below under the caption, “Commitment Fee Rate”,
“Eurodollar Margin” or “ABR Margin”, as the case may be, based upon the Category that applies on such day:
Pricing Category
Rating
Category 1
BBB+ or Baa1 and higher
Category 2
BBB or Baa2
Category 3
BBB- or Baa3
Category 4
Less than BBB- or Baa3
Leverage
Ratio
Commitment
Fee Rate
< 1.00:1.00
< 1.75:1.00, but
>1.00:1.00
< 2.25:1.00, but
>1.75:1.00
>2.25:1.00
Eurodollar Margin
ABR Margin
0.200 %
1.25 %
0.25 %
0.250 %
1.50 %
0.50 %
0.375 %
0.500 %
1.75 %
2.00 %
0.75 %
1.00 %
The applicable Pricing Category will be based on (a) at any time prior to the date that either Moody’s or S&P has assigned an initial rating to
the Borrower’s senior, unsecured long-term indebtedness for borrowed money that is not subject to any credit enhancement, the Leverage Ratio
of the Borrower calculated as of the last date of the most recently ended fiscal quarter of the Borrower for which financial statements and a
compliance certificate have been delivered pursuant to Section 5.04; provided that, until such financial statements and compliance certificate
have been delivered for the first full fiscal quarter ending after the Closing Date and for so long as this clause (a) applies, the Pricing Category
shall be Pricing Category 2 and (b) on any time on or after the date on which such initial ratings from either of Moody’s and S&P have been
assigned, the Applicable Ratings. For purposes of the foregoing, (i) if either Moody’s or S&P shall cease to have in effect an Applicable
Rating (other than by reason of the circumstances referred to in the next succeeding paragraph), then the applicable Pricing Category will be
based on the single available Applicable Rating, (ii) if the Applicable Ratings established or deemed to have been established by Moody’s and
S&P shall fall within different Pricing Categories, the applicable Pricing Category shall be based on the higher of the two Applicable Ratings
unless one of the ratings is two or more Pricing Categories lower than the other, in which case the applicable Pricing Category shall be
determined by reference to the Pricing Category one rating higher than the lowest of the two Applicable Ratings, and (iii) if the Applicable
Ratings established by Moody’s and S&P shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such
change shall be effective as of the date on which it is first announced by the applicable rating agency, regardless of when notice of such change
shall have been furnished by the Borrower to the Agent and the Lenders. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and
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ending on the date immediately preceding the effective date of the next such change. From and after the time that an initial Applicable Rating is
established, for any day when no Applicable Rating is in effect, the Commitment Fee Rate, the Eurodollar Margin and the ABR Margin shall
be the rates set forth opposite Pricing Category 4.
If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt
obligations, the Borrower and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Commitment Fee Rate, the
Eurodollar Margin and the ABR Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation.
“ Applicable Rating ” means, for each of Moody’s and S&P, (a) the rating assigned by such rating agency to the Borrower’s
senior, unsecured long-term indebtedness for borrowed money that is not subject to any credit enhancement, (b) if such rating agency shall not
have in effect a rating referred to in the preceding clause (a), then the rating assigned by such rating agency to the Loans, if any, or (c) if such
rating agency shall not have in effect a rating referred to in either of the preceding clause (a) or (b), the “company” or “corporate credit” rating
assigned by such rating agency to the Borrower.
“ Approved Fund ” has the meaning assigned to such term in Section 9.04(b).
“ Assignment and Assumption ” means an assignment and assumption agreement entered into by a Lender and an Eligible
Assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Agent, in substantially the form of
Exhibit A.
“ Availability Period ” means the period from and including the Closing Date to but excluding the earlier of the Maturity
Date and the date of termination of the Commitments.
“ Board ” means the Board of Governors of the Federal Reserve System of the United States.
“ Borrower ” has the meaning assigned to such term in the heading of this Agreement.
“ Borrowing ” means Loans of the same Type made, converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
“ Borrowing Request ” has the meaning assigned to such term in Section 2.03(a).
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“ Business Day ” means any day (other than a day which is a Saturday, Sunday or legal holiday in the State of New York or
the United Kingdom) on which banks are open for business in New York City and the United Kingdom; provided , however , that when used in
connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in U.S.
Dollar deposits in the London interbank market.
“ Capitalized Lease Obligations ” of any Person means the obligations of such person under any lease that would be
capitalized on a balance sheet of such person prepared in accordance with GAAP, and the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
“ Cash Collateralize ” means, to pledge and deposit with, or deliver to the Agent, for the benefit of an Issuing Bank, as
collateral for the obligations of the Borrower in respect of Letters of Credit or the obligations of Lenders to acquire participations in Letters of
Credit, cash or, if the Agent and the applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to
documentation in form and substance satisfactory to the Agent and each applicable Issuing Bank. “ Cash Collateral ” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
“ Change in Control ” means (i) any Person or group (within the meaning of the Exchange Act and the rules of the SEC
thereunder), other than the Permitted Owners or a group consisting solely of Permitted Owners, shall acquire or hold, directly or indirectly,
beneficially or of record, Equity Interests of the Borrower representing more than 30% of the aggregate voting power represented by all issued
and outstanding Equity Interests of the Borrower (the percentage of such aggregate voting power attributable to the Equity Interests acquired or
held by such Person or group being the “ Relevant Percentage ”) and at such time the Permitted Owners do not own, directly or through wholly
owned entities, Equity Interests of the Borrower collectively representing more than the Relevant Percentage of the aggregate voting power
represented by all issued and outstanding Equity Interests of the Borrower, (ii) less than a majority of the members of the board of directors of
the Borrower shall be individuals who are either (x) members of such board on the Closing Date, (y) members of the board who are appointed
by Parent in accordance with the terms of the Shareholder Agreement or (z) members of the board whose election, or nomination for election
by the stockholders of the Borrower, was approved by a vote of at least a majority of the members of the board then in office who are
individuals described in clauses (x) or (y) above or this clause (z), other than any individual whose nomination or appointment under this
clause (z) occurred as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors
on the board of directors of the Borrower (other than any such solicitation made by the board of directors of the Borrower) or (iii) any “Change
in Control” (or similar event, however denominated) of the Borrower as defined in any agreement or instrument evidencing or governing
Indebtedness (other than Non-Recourse Seed Indebtedness) or obligations in respect of one or more Hedging Agreements, of any one or more
of the Borrower and its Covered Subsidiaries in an aggregate principal amount exceeding $10,000,000 shall occur. For purposes of the
preceding sentence, the “principal amount” of the obligations of the Borrower or any Covered Subsidiary in
5
respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Covered Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
“ Change in Law ” means the occurrence, after the Closing Date, of any of the following: (a) the adoption of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental
Authority or (c) compliance by any Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such Lender’s
holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made
or issued after the Closing Date; provided , however , that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street
Reform and Consumer Protection Act and each request, rule, guideline or directive thereunder or issued in connection therewith and (y) all
requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each
case under clauses (x) and (y) above be deemed to be a “ Change in Law ”, regardless of the date enacted, adopted or issued.
“ Citibank ” means Citibank, N.A. and its successors and assigns.
“ Closing Date ” means the date on which the conditions to effectiveness of this Agreement set forth in Section 4.01 are
satisfied (or waived in accordance with Section 9.08).
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Co-Investment Deed ” means the co-investment deed to be entered into on or before consummation of the IPO between the
Borrower, on the one hand, and OMGUK, on the other hand, having substantially the same terms and conditions as the draft attached as an
exhibit to the Registration Statement.
“ Commitment ” means, with respect to each Lender, the commitment of such Lender to make Loans hereunder (and to
acquire participations in Letters of Credit as provided for herein), expressed as an amount representing the maximum aggregate permitted
amount of such Lender’s Credit Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.11,
(b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04 or (c) increased pursuant to
Incremental Commitments of such Lender pursuant to Section 2.19. The amount of each Lender’s Commitment is set forth opposite such
Lender’s name on Schedule 2.01 or, if such Lender has entered into an Assignment and Assumption or Incremental Facility Agreement, set
forth for such Lender in the Register. The aggregate amount of the Lenders’ Commitments as of the Closing Date is $350,000,000.
“ Compliance Certificate ” means a Compliance Certificate of a Financial Officer of the Borrower substantially in the form of
Exhibit E.
6
“ Consolidated Adjusted EBITDA ” means, for any period, Consolidated Net Income for such period (a) excluding , without
duplication and to the extent added or subtracted in computing Consolidated Net Income, (i) interest expense, including interest expense
historically paid to Parent, (ii) income tax expense and tax benefits, (iii) depreciation and amortization charges, (iv) non-cash notional corporate
cost allocations, (v) non-cash expenses representing changes in the value of equity and profit interests in subsidiaries held by key employees of
such subsidiaries, (vi) seed capital and co-investment gains, losses and related financing costs, (vii) restructuring costs related to an exit from a
distinct product or line of business, (viii) non-cash compensation expenses related to the award of stock or equity options, (ix) non-recurring
cash expenses relating to capital transactions, including the IPO, (x) non-cash impairment charges relating to acquired goodwill and intangible
assets, and (xi) other non-cash charges and expenses; provided that any cash payment made with respect to any non-cash expenses or charges
added back in computing Consolidated Adjusted EBITDA for any earlier period pursuant to clause (a)(xi) shall be subtracted in computing
Consolidated Adjusted EBITDA for the period in which such cash payment is made, and (b) less , without duplication and to the extent
otherwise included in computing such Consolidated Net Income, nonrecurring gains, in each case determined on a consolidated basis for the
Borrower in accordance with GAAP, as applicable.
“ Consolidated Interest Expense ” means, for any period, the total cash interest expense, other than interest expense
associated with any Non-Recourse Seed Indebtedness or of any Fund or Fund Entity, of the Borrower and its Covered Subsidiaries on a
consolidated basis for such period, in each case determined in accordance with GAAP.
“ Consolidated Net Income ” means, for any period, the consolidated net income or loss from continuing operations
attributable to controlling interests of the Borrower and the Covered Subsidiaries for such period (other than net income or loss attributable to
any Funds or Fund Entities), determined on a consolidated basis in accordance with GAAP.
“ Consolidated Total Indebtedness ” means, as of any date, the aggregate amount of all Indebtedness of the Borrower and the
Covered Subsidiaries outstanding as of such date, in the amount that would be reflected on a balance sheet of the Borrower and the Covered
Subsidiaries prepared on a consolidated basis as of such date in accordance with GAAP, excluding (i) accrued long-term liabilities in respect of
previously recognized compensation expense attributable to equity and profit awards to employees, (ii) Non-Recourse Seed Indebtedness, (iii)
Indebtedness of consolidated Fund Entities that is not subject to any Guarantee of the Borrower or any Covered Subsidiary and (iv)
Indebtedness owed by the Borrower to OMGUK under the Note.
“ Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or
policies of a person, whether as general partner or through the ownership of voting securities, by contract or otherwise, and “ Controlling ” and
“ Controlled ” shall have meanings correlative thereto.
7
“ Core Business Entity ” means any Person that is engaged in, or earns or is entitled to receive fees or income (including
investment income and fees, Management Fees and Performance Fees) from, one or more Core Businesses.
“ Core Businesses ” means (i) investment or asset management services, financial advisory services, money management
services or similar or related activities, including but not limited to services provided to mutual funds, private equity or debt funds, hedge
funds, funds of funds, corporate or other business entities or individuals and in respect of separately managed accounts and (ii) investing in
Equity Interests of entities substantially all of the businesses of which consist of providing services referred to in clause (i).
“ Covered Subsidiaries ” means each of the Subsidiaries other than any Subsidiaries that are Fund Entities. For the avoidance
of doubt, the term “Covered Subsidiaries” shall not include (i) Heitman LLC or (ii) Investment Counselors of Maryland, LLC unless and until
such entity becomes a “Subsidiary” as defined herein.
“ Credit Exposure ” means, with respect to any Lender at any time, the sum of the principal amount of such Lender’s Loans
outstanding at such time and such Lender’s LC Exposure at such time.
“ Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both
would constitute an Event of Default.
“ Defaulting Lender ” means, subject to Section 2.17(b), any Lender that (a) has failed, within two Business Days of the date
required to be funded or paid, to (i) fund all or any portion of its Loans unless such Lender notifies the Agent in writing that such failure is the
result of such Lender’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent,
together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (ii) fund any portion of its
participations in Letters of Credit or (iii) pay to the Agent, any Issuing Bank or any other Lender any other amount required to be paid by it
hereunder, (b) has notified the Borrower, the Agent or any Issuing Bank in writing that it does not intend or expect to comply with its funding
obligations hereunder or generally under other agreements in which it commits to extend credit, or has made a public statement to that effect
(unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on
such Lender’s good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written
request by the Agent, any Issuing Bank or the Borrower made in good faith, to provide a certification from an authorized officer of such Lender
in writing to the Agent and the Borrower that it will comply with its obligations (and is financially able to meet such obligations) hereunder to
fund prospective Loans and participations in outstanding Letters of Credit ( provided that such Lender shall cease to be a Defaulting Lender
pursuant to this clause (c) upon receipt of such written certification by the Agent and the Borrower), or (d) has, or has a direct or indirect parent
company that has, (i) become the
8
subject of a proceeding under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, or (ii)
had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal
regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or
acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such
ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Agent that a Lender is a Defaulting
Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be
deemed to be a Defaulting Lender (subject to Section 2.17(b)) upon delivery of written notice of such determination to the Borrower, each
Issuing Bank and each Lender.
“ Deferred Tax Asset Deed ” means the deferred tax asset deed to be entered into between the Borrower, on the one hand, and
OMGUK, on the other hand, having substantially the same terms and conditions as the draft attached as an exhibit to the Registration
Statement.
“ Dollars ”, “ dollars ” or “ $ ” means lawful money of the United States of America.
“ Eligible Assignee ” means any Person (other than a natural person (or a holding company, investment vehicle or trust for,
or owned and operated for the primary benefit of, a natural person), the Borrower or any Subsidiary or Affiliate thereof) that meets the
requirements to be an assignee under Section 9.04(b).
“ Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices
or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources or the management, release or threatened release of any Hazardous Material.
“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
9
“ Equity Interests ” means shares of capital stock, partnership interests, membership interests, beneficial interests or other
ownership interests, whether voting or nonvoting, in, or interests in the income or profits of, a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any of the foregoing.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as
a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
“ ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) any failure by any Plan to meet the minimum
funding standards (as defined in Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each instance, whether or not
waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) a determination that any Plan is, or is expected to be, in “at risk” status (as defined in Section
303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g) the
incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; (h) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or in “endangered” or “critical” status
within the meaning of Section 305 of ERISA or Section 432 of the Code or (i) the occurrence of a non-exempt “prohibited transaction” (as
defined in Section 4975 of the Code or Section 406 of ERISA) with respect to a Plan with respect to which the Borrower or any ERISA
Affiliate is a “disqualified person” (within the meaning of Section 4975 of the Code) or a “party in interest” (within the meaning of Section 406
of ERISA) which results in liability to the Borrower or a Covered Subsidiary.
“ Eurodollar Borrowing ” means a Borrowing comprised of Eurodollar Loans.
“ Eurodollar Loan ” means a Loan bearing interest at a rate determined by reference to the Adjusted LIBO Rate in accordance
with the provisions of Article II.
“ Event of Default ” has the meaning assigned to such term in Article VII.
10
“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended.
“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or
deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated and including (for the
avoidance of doubt) any backup withholding in respect thereof), franchise Taxes and branch profits Taxes, in each case, (i) imposed by the
United States of America (or any political subdivision thereof) or as a result of such Recipient being organized under the laws of, or having its
principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, any U.S. Federal withholding Taxes imposed with
respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date (i) such Lender acquires such interest in the
Loan or Commitment (other than pursuant to an assignment request pursuant to Section 2.18) or (ii) such Lender changes its lending office,
except in each case to the extent that, pursuant to Section 2.15(a), amounts with respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) any
Taxes attributable to such Recipient’s failure to comply with Section 2.15(f), (d) any U.S. Federal withholding Taxes imposed under FATCA
and (e) any UK Excluded Withholding Taxes.
“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor
version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official
interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into
in connection with the implementation of such Sections of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant
to such intergovernmental agreement.
“ Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100
of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the quotation for such day for such transactions received by the Agent from a Federal funds broker of recognized
standing selected by it.
“ Fee Letters ” means the letter agreements, each dated September 4, 2014 between (i) the Borrower, Citibank and Citigroup
Global Markets Inc. and (ii) the Borrower, Bank of America, N.A., and Merrill Lynch, Pierce, Fenner & Smith, Incorporated.
“ Financial Officer ” means (i) the chief financial officer of the Borrower, (ii) the chief executive officer of the Borrower, (iii)
the head of affiliate management of
11
the Borrower and (iv) any other senior officer of the Borrower designated in writing to the Agent by any of the foregoing officers of the
Borrower.
“ Foreign Lender ” means a Lender that is a resident or organized under the laws of a jurisdiction other than that in which the
Borrower is resident for tax purposes.
“ Fronting Exposure ” means, at any time there is a Defaulting Lender, with respect to any Issuing Bank, such Defaulting
Lender’s LC Exposure with respect to Letters of Credit issued by such Issuing Bank other than LC Exposure as to which such Defaulting
Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
“ Fund ” means any investment fund or investment vehicle, including mutual funds, organized as a separate legal entity that
is required to be consolidated with the Borrower under GAAP.
“ Fund Entity ” means (a) any Fund in respect of which any of the Covered Subsidiaries acts as manager or investment
advisor or has rights with respect to Management Fees or Performance Fees and (b) any entity in which any entity described in clause (a) has
an investment.
“ GAAP ” means generally accepted accounting principles as in effect from time to time in the United States of America,
applied on a consistent basis.
“ Governmental Authority ” means the government of the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“ Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other Person (the “ primary obligor ”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness of the
payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or (d) as an account party in respect of any letter of credit or letter of guaranty issued
to support such Indebtedness; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course
of business. The amount, as of any date of determination, of any Guarantee shall be the principal amount outstanding on such date of
Indebtedness or other obligation guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of the
guarantor or (ii) any Guarantee of an obligation that does not have a
12
principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause
(i), pursuant to such terms or, in the case of clause (ii), reasonably and in good faith by a Financial Officer)). When used as a verb, the term
“Guarantee” means to provide a Guarantee.
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“ Hedging Agreement ” means any interest rate protection agreement, foreign currency exchange agreement, commodity
price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
“ Impacted Interest Period ” has the meaning assigned to such term in the definition of “LIBO Rate”.
“ Incremental Commitments ” means, with respect to any Lender, the commitment, if any, of such Lender, established in
accordance with Section 2.19 pursuant to an Incremental Facility Agreement, to make Loans and to acquire participations in Letters of Credit
hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Credit Exposure under such
Incremental Facility Agreement.
“ Incremental Facility Agreement ” means an Incremental Facility Agreement, in form and substance reasonably satisfactory
to the Agent, among the Borrower, the Agent and one or more Incremental Lenders, establishing Incremental Commitments and effecting such
other amendments hereto and to the other Loan Documents as are contemplated by Section 2.19.
“ Incremental Lender ” means a Lender with an Incremental Commitment.
“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by such Person (excluding trade accounts payable incurred in the ordinary
course of business), (d) all obligations of such Person in respect of the deferred purchase price of property or services (including payments in
respect of non-competition agreements or other arrangements representing acquisition consideration, in each case entered into in connection
with an acquisition, but excluding (i) current accounts payable incurred in the ordinary course of business, (ii) deferred compensation payable
to directors, officers or employees of the Borrower or any Covered Subsidiary and (iii) any purchase price adjustment or earnout incurred in
connection with an acquisition, except to the extent that on any date the amount payable pursuant to such purchase price adjustment or earnout
is, or becomes, reasonably determinable and would be required to
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be reflected on a consolidated balance sheet of the Borrower prepared as of such date in accordance with GAAP), (e) all Capitalized Lease
Obligations of such Person, (f) the maximum aggregate amount of all letters of credit and letters of guaranty in respect of which such Person is
an account party (other than obligations with respect to any letter of credit and letter of guaranty securing obligations not otherwise constituting
Indebtedness that is entered into in the ordinary course of business to the extent such letter of credit or letter of guaranty is not drawn upon), (g)
all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (h) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired
by such Person, whether or not the Indebtedness secured thereby has been assumed by such Person, and (i) all Guarantees by such Person of
Indebtedness of others. The Indebtedness of any Person shall include the Indebtedness of any other Person (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other
relationship with such other Person, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. For the
avoidance of doubt, the term Indebtedness shall not include any obligations of a Person under the Co-Investment Deed or the Deferred Tax
Asset Deed, in each case as in effect on the Closing Date, to the extent such obligations were reflected on the consolidated pro forma balance
sheet of the Borrower included in the Registration Statement.
“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or
on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“ Intellectual Property License Agreement ” means the intellectual property license agreement to be entered into on or before
consummation of the IPO between the Borrower, on the one hand, and the Parent and certain of its Affiliates, on the other hand, having
substantially the same terms and conditions as the draft attached as an exhibit to the Registration Statement.
“ Interest Coverage Ratio ” means, for any period, the ratio of (a) Consolidated Adjusted EBITDA for such period to
(b) Consolidated Interest Expense for such period; provided that the Interest Coverage Ratio in respect of each Test Period ending on the last
day of each of the first four fiscal quarters of the Borrower ending after the Closing Date will be the ratio of (i) Consolidated Adjusted
EBITDA for such Test Period to (ii) an amount equal to the actual Consolidated Interest Expense from the Closing Date through the last day of
such Test Period multiplied by a fraction the numerator of which is 365 and the denominator of which is the number of days from the Closing
Date through the last day of such Test Period.
“ Interest Election Request ” has the meaning assigned to such term in Section 2.06(b).
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“ Interest Payment Date ” means (a) with respect to any ABR Loan, the last day of each March, June, September and
December and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable thereto and, in the case of a Eurodollar
Loan with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date for such Loan had
successive Interest Periods of three months’ duration been applicable to such Loan.
“ Interest Period ” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing
and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) in the calendar month that
is one, two, three or six months (or, if agreed to by each of the Lenders, 12 months) thereafter, as the Borrower may elect; provided , however ,
that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the
last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially will be the date on which such Borrowing is
made and thereafter will be the effective date of the most recent conversion or continuation of such Borrowing.
“ Interpolated Rate ” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal
places as the LIBO Screen Rate) determined by the Agent (which determination shall be conclusive and binding absent manifest error) to be
equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest period for which the LIBO
Screen Rate is available that is shorter than the Impacted Interest Period; and (b) the LIBO Screen Rate for the shortest period for which that
Screen Rate is available that exceeds the Impacted Interest Period, in each case, at such time.
“ IPO ” means the initial public offering and sale by OMGUK, as selling shareholder, of at least 15% of the ordinary shares
of the Borrower (calculated on a fully-diluted basis) pursuant to an effective registration statement filed with the SEC in accordance with the
Securities Act of 1933 and the rules and regulations of the SEC promulgated thereunder.
“ IRS ” means the United States Internal Revenue Service.
“ Issuing Bank ” means (a) Citibank, N.A., and (b) each Lender that shall have become an Issuing Bank hereunder as
provided in Section 2.04(i) (other than any Person that shall have ceased to be an Issuing Bank as provided in Section 2.04(i)), each in its
capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by any domestic or foreign branch or by Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such
branch or Affiliate with respect to Letters of Credit issued
15
by such branch or Affiliate (it being agreed that such Issuing Bank shall, or shall cause such branch or Affiliate to, comply with the
requirements of Section 2.04 with respect to such Letters of Credit).
“ LC Disbursement ” means a payment made by an Issuing Bank pursuant to a Letter of Credit.
“ LC Expiration Date ” has the meaning assigned to such term in Section 2.04(c).
“ LC Exposure ” means, at any time, the aggregate amount of (a) the sum of the amounts of all Letters of Credit that remain
available for drawing at such time and (b) the sum of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower
at such time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
“ Lenders ” means (a) the Persons listed on Schedule 2.01 (unless any such Person has ceased to be a party hereto pursuant to
an Assignment and Assumption) and (b) any financial institution that has become a party hereto pursuant to an Assignment and Assumption or
an Incremental Facility Agreement (unless it has ceased to be a Lender pursuant to an Assignment and Assumption).
“ Letter of Credit ” means any standby letter of credit issued pursuant to this Agreement.
“ Leverage Ratio ” means, on any date, the ratio of (a) Consolidated Total Indebtedness as of such date to (b) Consolidated
Adjusted EBITDA for the Test Period most recently ended on or prior to such date.
“ LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, the London interbank offered rate as
administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for U.S. Dollars for a
period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in
the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or
on the appropriate page of such other information service that publishes such rate from time to time as selected by the Agent in its reasonable
discretion; in each case the “ LIBO Screen Rate ”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement
of such Interest Period; provided that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of
this Agreement; provided further that if the Screen Rate shall not be available at such time for such Interest Period (an “ Impacted Interest
Period ”) then the LIBO Rate shall be the Interpolated Rate; provided further that if any Interpolated Rate shall be less than zero, such rate shall
be deemed to be zero for purposes of this Agreement.
“ LIBO Screen Rate ” has the meaning assigned to such term in the definition of “LIBO Rate”.
“ Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, encumbrance, charge or security
interest in or on such asset, (b) the interest
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of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement relating to such asset and (c) in the case
of securities, any purchase option, call or similar right of a third party with respect to such securities.
“ Loan Documents ” means this Agreement, the Fee Letters and the Incremental Facility Agreements.
“ Loans ” means the revolving loans made by the Lenders to the Borrower pursuant to Section 2.02(a) of this Agreement.
“ Management Fee Agreement ” means any agreement or instrument requiring the payment of Management Fees, including
any such agreement contained in the limited partnership agreement or other organizational documents of a Fund or Fund Entity, or any direct or
indirect interest of the Borrower or any of the Covered Subsidiaries in the payment of Management Fees, including such interests arising by
virtue of their ownership of Equity Interests under the limited partnership and other organizational documents of a Fund or Fund Entity or of a
Person other than a Covered Subsidiary that is party to a Management Fee Agreement.
“ Management Fees ” means, without duplication, (i) any and all management fees and other fees (excluding incentive or
performance fees dependent on investment performance or results) for management services (whether pursuant to a Management Fee
Agreement or otherwise) and any and all distributions received by the Borrower or any Covered Subsidiary the source of which is Management
Fees, (ii) any and all “Management Fees” payable pursuant to any Management Fee Agreement and (iii) any and all payments received which
are treated as a credit or offset or otherwise reduce such fees, and shall in any event include the “management fees” reported on the
consolidated financial statements of the Borrower prepared in accordance with GAAP.
“ Margin Stock ” has the meaning given such term under Regulation U.
“ Material Adverse Effect ” means a material adverse effect on (a) the business, assets, financial condition or results of
operations of the Borrower and its Covered Subsidiaries, taken as a whole, (b) the ability of the Borrower to perform its payment obligations
under any Loan Document, (c) the rights of or remedies available to the Lenders under any Loan Document or (d) the validity or enforceability
against the Borrower of any Loan Document.
“ Material Indebtedness ” means Indebtedness (other than the Loans, Letters of Credit and Non-Recourse Seed
Indebtedness) or obligations in respect of one or more Hedging Agreements, of any one or more of the Borrower and its Covered Subsidiaries
in an aggregate principal amount exceeding $10,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the
obligations of the Borrower or any Covered Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such Covered Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
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“ Maturity Date ” means the fifth anniversary of the Closing Date (or, if such day is not a Business Day, the next succeeding
Business Day).
“ Moody’s ” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“ Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA, to which the Borrower or
any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make
contributions.
“ Non-Consenting Lender ” means any Lender that does not approve any consent, waiver or amendment that (a) requires the
approval of all or all affected Lenders in accordance with the terms of Section 9.08(b) and (b) has been approved by the Required Lenders.
“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.
“ Non-Recourse Seed Indebtedness ” means Indebtedness incurred by a Subsidiary to finance seed capital investments, which
shall include incubation capital (to establish a track record), scale capital (to extend an existing product into a commingled fund) and
co-investment capital (to support the formation of a closed-end partnership); provided that (i) such Indebtedness is not Guaranteed by the
Borrower or any Covered Subsidiary and (ii) such Indebtedness has recourse solely to the investments being financed and not to any other
assets of the Borrower or any Covered Subsidiary.
“ Note ” means the loan instrument from the Borrower in favor of OMGUK, and subordinated in right of payment to the
Obligations, in the original principal amount on the Closing Date of $37,000,000.00.
“ Obligations ” means (a) the principal of and interest (including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans made to the
Borrower, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (b) each payment
required to be made by the Borrower in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral and (c) all other monetary obligations, including fees, costs, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the
pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Borrower under this Agreement or any other Loan Document.
“ OMGUK ” means OM Group (UK) Limited, a wholly-owned subsidiary of the Parent and the seller of the ordinary shares
of the Borrower sold in the IPO.
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“ OMGUK Dividend ” means the payment by the Borrower prior to the Closing Date, of a $175,000,000 dividend to
OMGUK, as the sole record holder of the Borrower’s ordinary shares immediately prior to the consummation of the IPO, which payment shall
be in the form of the OMGUK Dividend Note.
“ OMGUK Dividend Note ” means the loan instrument from the Borrower in favor of OMGUK in the original principal
amount of $175,000,000 evidencing the OMGUK Dividend.
“ OMUSH ” means Old Mutual (US) Holdings Inc., which, until the consummation of the Reorganization, owned and
operated substantially all the assets and businesses acquired by the Borrower in the Reorganization.
“ Other Connection Taxes ” means, with respect to any Recipient, Taxes imposed as a result of a present or former
connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having
executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest
under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan
Document).
“ Other Taxes ” means any present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that
arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, or from the registration, receipt
or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that (a) are Other
Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.17) or (b) arise as a result of
the voluntary registration by a Lender of a Loan Document.
“ Parent ” means Old Mutual, plc, a public limited company organized under the laws of England and Wales.
“ Parent Agreements ” means the Shareholder Agreement, the Seed Capital Management Agreement, the Co-Investment
Deed, the Deferred Tax Asset Deed and the Intellectual Property License Agreement.
“ Participant ” has the meaning given such term in Section 9.04(c).
“ Participant Register” has the meaning given such term in Section 9.04(c).
“ PBGC ” means the Pension Benefit Guarantee Corporation referred to and defined in ERISA and any successor entity
performing similar functions.
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“ Performance Fees ” means ownership interests or contractual rights representing the right to receive compensation
dependent on investment performance or results and payments or distributions made or owed to a Covered Subsidiary in respect thereof.
“ Permitted Encumbrances ” means:
(a) Liens imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law (other than
any Lien imposed pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code),
arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested
in compliance with Section 5.04;
(c) pledges and deposits made (i) in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security and similar laws and (ii) in respect of letters of credit, bank guarantees or similar
instruments issued for the account of the Borrower or any Covered Subsidiary in the ordinary course of business supporting
obligations of the type set forth in subclause (i) above;
(d) pledges and deposits made (i) to secure the performance of bids, trade contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and (ii) in
respect of letters of credit, bank guarantees or similar instruments issued for the account of Borrower or any Covered Subsidiary in
the ordinary course of business supporting obligations of the type set forth in clause (i) above;
(e) judgment liens in respect of judgments that do not constitute an Event of Default under Article VII;
(f) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in
the ordinary course of business that do not materially detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Covered Subsidiary;
(g) banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with
depository institutions; provided that such deposit accounts or funds are not established or deposited for the purpose of providing
collateral for any Indebtedness and are not subject to restrictions on access by Borrower or any Covered Subsidiary in excess of those
required by applicable banking regulations;
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(h) Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor, or a licensee, lessee or
sublicensee or sublessee, in the property subject to any lease, license or sublicense or concession agreement permitted by this
Agreement;
(i) Liens that are contractual rights of set-off; and
(j) custodial liens, administrator liens and other similar Liens relating to investment assets, including rights of setoff,
incurred in the ordinary course of business; provided that such assets are not subjected to such Liens for the purpose of providing
collateral for any Indebtedness;
provided that the term “ Permitted Encumbrances ” shall not include any Lien securing Indebtedness.
“ Permitted Owners ” means the Parent and each direct or indirect wholly-owned subsidiary of the Parent, including, as of the
Closing Date, OMGUK.
“ Person ” or “ person ” means any natural person, corporation, business trust, joint venture, association, company,
partnership, limited liability company or government, or any agency or political subdivision thereof.
“ Plan ” means any employee pension benefit plan, as defined in Section 3(2) of ERISA, (other than a Multiemployer Plan)
that is subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.
“ Platform ” has the meaning assigned to such term in Section 9.17.
“ Prime Rate ” means the rate of interest per annum publicly announced from time to time by Citibank as its prime rate in
effect at its principal office in New York City. The Prime Rate is not intended to be the lowest rate of interest charged by the Citibank in
connection with extensions of credit to debtors; and each change in the Prime Rate shall be effective on the date such change is publicly
announced as being effective.
“ Recipient ” means, as applicable, the Agent, the Issuing Bank or any Lender.
“ Register ” has the meaning given such term in Section 9.04(b)(iv).
“ Registration Statement ” means the Form S-1 Registration Statement relating to the offering and sale of ordinary shares of
the Borrower in the IPO in the form filed with the SEC on October 7, 2014.
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“ Regulation D ” means Regulation D of the Board as from time to time in effect and all official rulings and interpretations
thereunder or thereof.
“ Regulation T ” means Regulation T of the Board as from time to time in effect and all official rulings and interpretations
thereunder or thereof.
“ Regulation U ” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations
thereunder or thereof.
“ Regulation X ” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations
thereunder or thereof.
“ Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the directors, officers,
employees, agents and advisors of such Person and of each Affiliate of such Person.
“ Reorganization ” means the corporate reorganization to be effected prior to the IPO, as described in the Registration
Statement, pursuant to which the Borrower, through US Sub and UK Sub, will indirectly acquire all the outstanding Equity Interests of
OMUSH.
“ Required Lenders ” means Lenders having Credit Exposures and unused Commitments representing more than 50% of the
sum of the total Credit Exposures and unused Commitments at such time.
“ Responsible Officer ” means a Financial Officer or the general counsel of the Borrower.
“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to
any Equity Interest in the Borrower or any Covered Subsidiary, or any payment or distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of
any Equity Interests in the Borrower or any Covered Subsidiary or of any option, warrant or other right to acquire any such Equity Interests in
the Borrower or any Covered Subsidiary.
“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc., and any successor to its
rating agency business.
“ Sanctions ” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time
by (a) the U.S. government, including the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of
State, or (b) the United Nations Security Council, the European Union, any European Union member state applicable to the Borrower and its
Subsidiaries or Her Majesty’s Treasury of the United Kingdom.
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“ Sanctioned Country ” means, at any time, a country or territory which is itself the subject or target of any Sanctions
(including, without limitation, at the time of this Agreement, Cuba, Iran, North Korea, Sudan and Syria).
“ Sanctioned Person ” means, at any time, (a) any Person or vessel listed in any Sanctions-related list of designated or
blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or
by the United Nations Security Council, the European Union or any European Union member state applicable to the Borrower and its
Subsidiaries, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by, or acting on
behalf of, any such Person or Persons described in the foregoing clauses (a) or (b).
“ SEC ” means the United States Securities and Exchange Commission.
“ Seed Capital Management Agreement ” means the Seed Capital Management Agreement to be entered into on or before
consummation of the IPO between the Borrower, on the one hand, and the Parent and certain of its Affiliates, on the other hand, having
substantially the same terms and conditions as the draft attached as an exhibit to the Registration Statement.
“ Shareholder Agreement ” means the Shareholder Agreement to be entered into between the Borrower, OMGUK and the
Parent concurrently with the consummation of the IPO on substantially the same terms as described in the Registration Statement.
“ Statutory Reserves ” means a fraction (expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board and any other banking authority to which the Agent is subject for
Eurocurrency Liabilities (as defined in Regulation D). Such reserve percentages shall include any imposed pursuant to
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities and to be subject to such reserve requirements without
benefits of or credit for proration, exemptions or offsets. Statutory Reserves shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
“ subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent.
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“ Subsidiary ” means any subsidiary of the Borrower.
“ Taxes ” means any present or future taxes, levies, imposts, duties, deductions, withholdings (including backup
withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
“ Test Period ” means each period of four consecutive fiscal quarters of the Borrower.
“ Transactions ” means the execution, delivery and performance by the Borrower of this Agreement, the borrowing of Loans,
the use of the proceeds thereof (including for the payment of the OMGUK Dividend Note) and the issuance of Letters of Credit hereunder.
“ Type ”, when used in respect of any Loan or Borrowing, shall refer to whether the rate of interest on such Loan or on the
Loans comprising such Borrowing is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
“ U.S. Person ” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“ U.S. Tax Compliance Certificate ” has the meaning given such term in Section 2.15(f)(ii)(B)(3).
“ UK ” and “ United Kingdom ” each mean the United Kingdom of Great Britain and Northern Ireland.
“ UK Excluded Withholding Taxes ” shall mean any deduction or withholding for or on account of UK Tax from a payment
under any Loan where:
(a) the payment could have been made to the relevant Lender without any deduction or withholding if the Lender had been
a UK Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Qualifying Lender other than as a result of any
change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law
or treaty or any published practice or published concession of any relevant taxing authority; or
(b) the relevant Lender is a UK Treaty Lender and the Borrower making the payment is able to demonstrate that the
payment could have been made to the Lender without the UK tax deduction had that Lender complied with its obligations under
Section 2.15(g).
“ UK Qualifying Lender ” means a Lender which is beneficially entitled to interest payable to that Lender in respect of an
advance under a Loan Document and is:
(a) a Lender (i) which is a bank (as defined for the purpose of section
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879 of the UK Income Tax Act 2007) making an advance under a Loan Document and is within the charge to UK corporation tax as
respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart
from section 18A of the UK Corporation Tax Act 2009 or (ii) in respect of an advance made under a Loan Document by a person that
was a bank (as defined for the purpose of section 879 of the UK Income Tax Act 2007) at the time that that advance was made and
within the charge to UK corporation tax as respects any payments of interest made in respect of that advance; or
(b) a UK Treaty Lender.
“ UK Sub ” means OMAM UK Limited, a [private limited company] organized under the laws of England and Wales and a
Wholly-Owned Subsidiary of US Sub.
“ UK Treaty Lender ” means a Lender which:
(a) is treated as a resident of a UK Treaty State for the purposes of the Treaty;
(b) does not carry on a business in the UK through a permanent establishment with which that Lender’s participation in the
Loan is effectively connected; and
(c) meets all other conditions in the relevant Treaty for full exemption from Tax imposed by the UK on interest, except that
for this purpose it shall be assumed that the following are satisfied: (i) any condition which relates (expressly or by implication) to
there not being a special relationship between the Borrower and a Lender or between both of them and another person, or to the
amounts or terms of any Loan and (ii) any necessary procedural formalities.
“ UK Treaty State ” means a jurisdiction having a double taxation agreement (a “ Treaty ”) with the UK which makes a
provision for full exemption from tax imposed by the UK on interest.
“ US Sub ” means OMAM US, Inc., a Delaware corporation and a Wholly-Owned Subsidiary of the Borrower.
“ USA PATRIOT Act ” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001.
“ Wholly-Owned Subsidiary ” means a Subsidiary of which Equity Interests (except for directors’ qualifying shares and other
de minimis amounts of outstanding securities or ownership interests) representing 100% of the Equity Interests are, at the time any
determination is being made, owned, controlled or held by the Borrower or one or more Wholly-Owned Subsidiaries of the Borrower or by the
Borrower and one or more Wholly-Owned Subsidiaries of the Borrower.
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“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“ Withholding Agent ” means the Borrower and the Agent.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans and Borrowings may be
classified and referred to by Type ( e.g. , a “ Eurodollar Loan ” or “ Eurodollar Borrowing ”).
SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter
forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will”
shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
modifications in Section 6.08 or as otherwise set forth herein), (b) any reference herein to any Person shall be construed to include such
Person’s permitted successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all accounting terms and all
terms of a financial nature shall be interpreted, all accounting determinations thereunder shall be made, and all financial statements required to
be delivered thereunder shall be prepared, in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the
Agent that the Borrower requests an amendment of any financial covenant to eliminate or modify the effect of any change after the date hereof
in GAAP or in the application thereof on the operation of such covenant (or if the Agent notifies the Borrower that the Required Lenders
request an amendment of any financial covenant for such purpose), regardless of whether any such notice is given before or after such change
in GAAP or in the application thereof, then the Borrower’s compliance with such covenant shall be determined on the basis of GAAP as in
effect and applied immediately before the relevant change became effective, until either such notice is withdrawn or such covenant is amended
in a manner satisfactory to the Borrower and the Required Lenders. Notwithstanding any other provision contained herein, all terms of an
accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made,
without giving effect to any election under
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Financial Accounting Standards Board Accounting Standards Codification 825 (or any other Financial Accounting Standard having a similar
result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary at “fair value”, as defined therein.
SECTION 1.05. References to Agreements. A reference to an agreement or other document “as in effect as of” a particular
date, or words to similar effect, shall be construed to refer to the particular words of such agreement or document as of such date and shall not
be construed as in any way restricting the ability of the parties thereto to amend, supplement or otherwise modify such agreement or document
(subject to any restrictions on such amendments, supplements or modifications in Section 6.08 or as otherwise set forth herein).
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender agrees, severally and not
jointly, to make Loans denominated in U.S. Dollars to the Borrower from time to time during the Availability Period in an aggregate principal
amount that will not result in (i) such Lender’s Credit Exposure exceeding such Lender’s Commitment or (ii) the aggregate Credit Exposure
exceeding the aggregate Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans of the
same Type made by the Lenders ratably in proportion to their individual Commitments. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and
no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject to Section 2.10, each Borrowing shall be comprised entirely of Eurodollar Loans or ABR Loans, as the
Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect in any manner the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the
same time; provided , however , that the Borrower shall not be entitled to request any Borrowing, including any conversion of an ABR
Borrowing into a Eurodollar Borrowing, which, if made, would result in an aggregate of more than eight separate Eurodollar Borrowings of
any Lender being outstanding hereunder at any one time. For purposes of the foregoing, Eurodollar Borrowings having different Interest
Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.
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(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate
principal amount which is an integral multiple of $500,000 and not less than $1,000,000. At the time that each ABR Borrowing is made,
such Borrowing shall be in an aggregate principal amount which is an integral multiple of $500,000 and not less than $1,000,000, provided
that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section 2.04(e).
(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to
convert or continue, any Eurodollar Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
SECTION 2.03. Requests for Borrowings. (a) To request a Borrowing, the Borrower shall notify the Agent of such
request (each, a “ Borrowing Request ”), which shall be in the form of Exhibit B or any other form approved by the Agent, in writing or by
telecopy (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed
Borrowing. Each such Borrowing Request shall be irrevocable and shall be in a form approved by the Agent and signed by a Financial Officer
of the Borrower. Each such Borrowing Request shall specify the following information in compliance with Section 2.02:
(i) the principal amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”; and
(v) the location and number of the Borrower’s account to which funds are to be disbursed.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Agent shall advise each
Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
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SECTION 2.04. Letters of Credit. (a) General . Subject to the terms and conditions set forth herein, the Borrower may
request the issuance of Letters of Credit (each of which shall be a standby letter and not a commercial or trade letter of credit) as the applicant
thereof for the support of its or its Covered Subsidiaries’ obligations, in a form reasonably acceptable to the Agent and the relevant Issuing
Bank, at any time and from time to time prior to the LC Expiration Date. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the relevant Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall
control. Notwithstanding anything herein to the contrary, no Issuing Bank shall have any obligation hereunder to issue, any Letter of Credit
the proceeds of which would be made available to any Person (i) to fund any activity or business of or with any Sanctioned Person, or in any
country or territory that at the time of such funding is the subject of any Sanctions or (ii) in any manner that would result in a violation of any
Sanctions by any party to this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions . To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit
by electronic communication, if arrangements for doing so have been approved by the relevant Issuing Bank) to the applicable Issuing Bank
and the Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension, but in any event no less than three
Business Days) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested
by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bank’s standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed $50,000,000, (ii) no Lender’s Credit
Exposure shall exceed its Commitment and (iii) the total Credit Exposures shall not exceed the total Commitments.
(c) Expiration Date . Each Letter of Credit shall expire (or be subject to termination by notice from the Issuing Bank to
the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business
Days prior to the Maturity Date (the “ LC Expiration Date ”).
(d) Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount
thereof) and without any further
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action on the part of the relevant Issuing Bank or the Lenders, such Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate
amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Agent, for the account of the relevant Issuing Bank, such Lender’s Applicable Percentage
of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement . If an Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, such Issuing
Bank shall give prompt notice to the Borrower of such LC Disbursement, and the Borrower shall reimburse such LC Disbursement by paying
to the Agent an amount equal to such LC Disbursement not later than 3:00 p.m., New York City time, on the date that such LC Disbursement
is made, if the Borrower shall have received notice of such LC Disbursement prior to 12:00 noon., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such date, then not later than 12:00 noon, New York City time,
on the Business Day immediately following the day that the Borrower receives such notice; provided that, if such LC Disbursement is not
less than $1,000,000 the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that
such payment be financed with an ABR Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Borrowing. If the Borrower fails to make such payment when due, the
Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such
Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.05 with respect to Loans made by such
Lender (and Section 2.05 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Agent shall promptly pay to
such Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Agent of any payment from the
Borrower pursuant to this paragraph, the Agent shall distribute such payment to the relevant Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
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(f) Obligations Absolute . The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Issuing
Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit,
or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the
Agent, the Lenders nor any Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of
any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery
of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing Bank;
provided that the foregoing shall not be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to special, indirect, consequential or punitive damages, claims in respect of which are hereby waived by the Borrower
to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.. The parties hereto
expressly agree that, in the absence of gross negligence or wilful misconduct on the part of an Issuing Bank (as finally determined by a court
of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face
to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of
Credit.
(g) Disbursement Procedures . An Issuing Bank shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit issued by it. Such Issuing Bank shall promptly notify the Agent and
the Borrower in writing or by telecopy of such demand for payment and whether such Issuing Bank has made or will make an LC
Disbursement thereunder or will refuse to honor such demand, as the case may be; provided that any failure to give or delay in giving such
notice shall not relieve the Borrower of its
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obligation to reimburse such Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest . If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the reimbursement is due and payable at the rate per annum
then applicable to ABR Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.09(c) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the
relevant Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this
Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment.
(i) Designation and Replacement of Issuing Banks . The Borrower may, at any time and from time to time, with the
consent of the Agent (which consent shall not be unreasonably withheld), designate as additional Issuing Banks one or more Lenders that
agree to serve in such capacity as provided below. The acceptance by a Lender of an appointment as an Issuing Bank hereunder shall be
evidenced by an agreement, which shall be in form and substance reasonably satisfactory to the Agent, executed by the Borrower, the Agent
and such designated Lender and, from and after the effective date of such agreement, (i) such Lender shall have all the rights and obligations
of an Issuing Bank under this Agreement and the other Loan Documents and (ii) references herein or therein to the term “Issuing Bank” shall
be deemed to include such Lender in its capacity as an issuer of Letters of Credit hereunder. The Borrower may terminate the appointment
of a Lender as an “Issuing Bank” hereunderby providing a written notice thereof to such Issuing Bank, with a copy to the Agent. Any such
termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th Business
Day following the date of the delivery thereof. The Agent shall notify the Lenders of any such termination of the appointment of an Issuing
Bank. At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the
terminated Issuing Bank pursuant to Section 2.07(b). After the termination of an Issuing Bank hereunder, the terminated Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such termination, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization . If any Event of Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower
shall deposit in an account with the Agent, in the name of the Agent and for the benefit of the Lenders, an amount in cash equal to 103% of
the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral
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shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Article VII. Such deposit
shall be held by the Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. The
Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made in short-term money market instruments or money market
deposit accounts at the option and sole discretion of the Agent and at the Borrower’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the
Agent to reimburse each Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to (i) the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure and
(ii) in the case of any such application at a time when any Lender is a Defaulting Lender (but only if, after giving effect thereto, the
remaining cash collateral shall be less than the aggregate LC Exposure of all the Defaulting Lenders) the consent of each Issuing Bank), be
applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been cured or waived to the extent that, after giving effect to
such return, no Issuing Bank shall have any exposure in respect of the Non-Defaulting Lenders and or the remaining cash collateral and no
Default shall have occurred and be continuing.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to the Agent in New York, New York, not later than 12:00 noon., New
York City time, and the Agent shall by 3:00 p.m., New York City time, credit the amounts so received to an account designated by the
Borrower in the applicable Borrowing Request.
(b) Unless the Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Agent such Lender’s share of such Borrowing, the Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section and may, in reliance on such assumption, make available to the
Borrower on such date a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing
available to the Agent, then the applicable Lender and the Borrower (without waiving any claim against such Lender for such Lender’s
failure to make such share available) severally agree to pay to the Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the
Agent, at (i) in the case of a payment to be made by such
33
Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on
interbank compensation or (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request or
as otherwise provided in this Section. Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to
continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the Agent of such election (each, an “ Interest
Election Request ”) in writing or by telecopy by the time that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest
Election Request shall be irrevocable and shall be in a form reasonably satisfactory to the Agent and signed by a Financial Officer.
(c) Each Interest Election Request shall specify the following information:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing, and the minimum amounts thereof
shall be in compliance with Section 2.02(c));
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition of the term “ Interest Period ”.
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If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be
deemed to have selected an Interest Period of one month duration.
(d) Promptly following receipt of an Interest Election Request, the Agent shall advise each Lender of the details thereof
and of such Lender’s portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to a Eurodollar Borrowing having an Interest Period of one month duration.
(f) Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Agent so
notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.07. Fees. (a) The Borrower agrees to pay to the Agent for the account of each Lender a commitment fee,
which shall accrue at the Applicable Rate on the daily unused amount of the Commitment of such Lender during the preceding quarter (or other
period commencing with the Closing Date or ending on the Maturity Date or the date on which the Commitments of such Lender shall expire
or be terminated as provided herein). Accrued commitment fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate, commencing on December 31, 2014. All commitment fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding
the last day). For purposes of computing commitment fees, the Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Loans and LC Exposure of such Lender.
(b) The Borrower agrees to pay (i) to the Agent for the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate on Eurodollar Loans on
the daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Closing Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure and (ii) to each Issuing Bank, a fronting fee, which shall accrue at the rate or
rates separately agreed upon between the Borrower and such Issuing Bank, as well as such Issuing Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder as are agreed upon by the Issuing
Bank and the Borrower. Participation fees and fronting fees accrued through and including the last day of March, June, September and
35
December of each year shall be payable on the third Business Day following such last day, commencing on the third Business Day following
December 31, 2014; provided that all such fees shall be payable on the date on which the Commitments terminate and any such fees accruing
after the date on which the Commitments terminate shall be payable on demand. Any other fees payable to an Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Agent, for its own account, fees payable in the amounts at the times separately
agreed upon between the Borrower and the Agent.
(d) The payment of the fees described in Sections 2.07(a) and (b) with respect to any Defaulting Lender shall be subject to
Section 2.17(a).
(e) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Agent (or an Issuing
Bank, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders. Fees paid shall
be refundable under any circumstances.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to
the Agent for the account of each Lender the then unpaid principal amount of each Loan of such Lender on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness to
such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time under this Agreement.
(c) The Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type of
each Loan made and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of any payment received by the Agent hereunder from the
Borrower and each Lender’s share thereof. The entries made in the accounts maintained pursuant to this Section 2.08(c) shall be prima facie
evidence of the existence and amounts of the obligations recorded therein; provided , that the failure of any Lender or the Agent to maintain
such accounts or any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans in accordance with the
terms of this Agreement.
SECTION 2.09. Interest on Loans. (a) The Loans comprising each Eurodollar Borrowing shall bear interest at a rate per
annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
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(b) The Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base Rate
plus the Applicable Rate.
(c) Notwithstanding the foregoing, upon the occurrence and during the continuance of an Event of Default, if any
principal of or interest on any Loan or any commitment, participation or other fees or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, or, at the request of the Required Lenders, upon the occurrence
and during the continuance of any other Event of Default, all outstanding Loans (regardless of whether then due) and all other amounts then
due and payable under the Loan Documents shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of
principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2.00% plus the rate applicable to ABR Loans as provided in paragraph (b) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon
termination of the Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end of the Availability
Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan
shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference
to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but
excluding the last day). The Alternate Base Rate shall be determined by the Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.10. Alternate Rate of Interest.
If prior to the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate for such Interest Period; or
(b) the Agent is advised by Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Eurodollar Borrowing for such Interest
Period;
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then the Agent shall give notice (which may be telephonic) thereof to the Borrower and the Lenders as promptly as practicable and, until the
Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request
that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and such
Borrowing shall be continued as an ABR Borrowing, (ii) any Borrowing Request for a Eurodollar Borrowing shall be treated as a request for an
ABR Borrowing and (iii) in the event of a determination described in clause (a) or (b) above with respect to the Adjusted LIBO Rate
component of the Alternate Base Rate, the utilization of the Adjusted LIBO Rate component in determining the Alternate Base Rate shall be
suspended.
SECTION 2.11. Termination and Reduction of Commitments. (a) Unless previously terminated, the Commitments shall
terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time permanently reduce, the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is an integral multiple of $500,000 and not less than $1,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.12, the aggregate Credit Exposure would exceed the aggregate Commitment.
(c) The Borrower shall notify the Agent by written or telecopy notice of any election to terminate or reduce the
Commitments under paragraph (b) above, at least three Business Days prior to the effective date of such termination or reduction, specifying
the effective date thereof. Promptly following receipt of any such notice, the Agent shall advise the Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination or reduction of the
Commitments under paragraph (b) of this Section may state that such notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the Agent on or prior to the specified effective date) if such condition
is not satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in proportion to their individual Commitments.
SECTION 2.12. Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay,
without premium or penalty but subject to Section 2.14, any Borrowing, in whole or in part, upon giving written or telecopy notice to the Agent
in accordance with paragraph (c) of this Section.
(b) In the event and on each occasion that the aggregate Credit Exposure exceeds the aggregate Commitments, the
Borrower shall immediately prepay, without premium or penalty but subject to Section 2.14, Borrowings (or, if no such Borrowings are
outstanding, Cash Collateralize the outstanding LC Exposure) in an aggregate amount as shall be necessary to eliminate the excess of such
Credit Exposure over the aggregate Commitments (for purposes of this clause (b), Credit Exposure shall
38
be calculated disregarding any portion of the LC Exposure which has been Cash Collateralized).
(c) The Borrower shall notify the Agent by written or telecopy notice of any prepayment hereunder (i) in the case of a
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or
(ii) in the case of prepayment of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the Business Day of
prepayment. Each such notice shall specify the prepayment date, the principal amount of each Borrowing (or portion thereof) to be prepaid
and shall be irrevocable and shall commit the Borrower to prepay such Borrowing (or portion thereof) by the amount stated therein on the
date stated therein, provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the
Commitments as contemplated by Section 2.11, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.11. All prepayments under this Section 2.12 shall be subject to Section 2.14 but shall otherwise be without
premium or penalty. All prepayments under this Section 2.12 shall be accompanied by payment of accrued interest on the principal amount
being prepaid to the date of payment. Each partial prepayment of any Borrowing shall be in an amount which is an integral multiple of
$100,000 and not less than $1,000,000 or, if less, the aggregate principal amount of such Borrowing. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing.
SECTION 2.13. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any
compulsory loan, insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London interbank market any other condition, cost or expense (other
than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein; or
(iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan
principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting or
maintaining any Loan (or of maintaining its obligation to make any such Loan), to increase the cost to such Lender or Issuing Bank of
participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or issue any Letter of Credit) or to
reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other
39
Recipient hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender, Issuing Bank or other Recipient,
as the case may be, such additional amount or amounts as will compensate such Lender, Issuing Bank or other Recipient, as the case may be,
for such additional costs or expenses incurred or reduction suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity requirements has
the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s
holding company, if any, as a consequence of this Agreement, the Commitments of or the Loans made by, or participations in Letters of
Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing
Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such
Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy or
liquidity), then from time to time the Borrower will pay to such Lender or Issuing Bank such additional amount or amounts as will
compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender
or Issuing Bank or such Lender’s or Issuing Bank’s holding company, as the case may be, as specified in paragraph (a) or (b) of this
Section (collectively, the “ Increased Costs ”) and setting forth in reasonable detail the manner of determination of such amount or amounts,
shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing Bank the
amount shown as due on any such certificate within 10 days after receipt thereof. Notwithstanding the foregoing, Increased Costs shall not
include incremental costs or expenses, such as general administrative or personnel expenses, incurred in connection with compliance with
any Change in Law that are not attributable to a Lender or Issuing Bank making, continuing, converting or maintaining any Loan, or
participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to make Loans or to participate in or issue any
Letter of Credit) hereunder.
(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required
to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior
to the date that such Lender or Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, the 180-day period referred to above shall be extended to include the
period of retroactive effect thereof.
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SECTION 2.14. Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other
than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar
Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar
Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice may be revoked in accordance with the terms
hereof) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request
by the Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of
such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such
period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the London interbank market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account of any obligation of the Borrower under any Loan
Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as
determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such
payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall
timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is
an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been
made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives
an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or, at the
option of the Agent, timely reimburse it for the payment of, any Other Taxes.
(c) As soon as practicable after any payment of Indemnified Taxes by the Borrower to a Governmental Authority, the
Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority
41
evidencing such payment or other evidence of such payment reasonably satisfactory to the Agent.
(d) The Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or
paid by such Recipient or required to be withheld or deducted from a payment to such Recipient in connection with any Loan Document and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by
a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes
attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Agent for such Indemnified Taxes and
without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of
Section 9.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case,
that are paid or payable by the Agent in connection with any Loan Document and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby
authorizes the Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise
payable by the Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f) (i) Any Lender that is entitled to an exemption from, or reduction of withholding Tax with respect to payments made
under any Loan Document shall deliver to the Borrower and the Agent, at the time or times reasonably requested by the Borrower or the
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such
payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if reasonably requested by the Borrower or the
Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will
enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting
requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in this Section 2.15(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the
Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or
expense or would materially prejudice the legal or commercial position of such Lender.
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(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed
originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is
applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a
party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or IRS
Form W-8BEN-E (or applicable successor form) establishing an exemption from, or reduction of, U.S. Federal withholding
Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan
Document, IRS Form W-8BEN or IRS Form W-8BEN-E (or applicable successor form) establishing an exemption from, or
reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed originals of IRS Form W-8ECI (or successor form);
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under
Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Foreign Lender is
not (1) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrower
within the meaning of Section 881(c)(3)(B) of the Code or (3) a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN
or IRS Form W-8BEN-E (or applicable successor form); or
(4) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY,
accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit D-2, Exhibit D-3 or Exhibit D-4, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable (including any applicable successor form);
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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed originals of any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. Federal withholding Tax, duly completed, together
with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Agent to determine the
withholding or deduction required to be made; and
(D) if a payment made to a Lender or the Agent under any Loan Document would be subject to U.S. Federal withholding Tax
imposed by FATCA if such Lender or the Agent were to fail to comply with the applicable reporting requirements of FATCA (including those
contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender or Agent shall deliver to the Borrower and the Agent at the
time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by
applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by
the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under FATCA and to
determine that such Lender or Agent has complied with its obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this clause (B), “FATCA” shall include any amendments made to FATCA after the date of this
Agreement.
Each Lender and the Agent agrees that if any form or certification it previously delivered expires or becomes obsolete or
inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Agent in writing of its legal
inability to do so.
(g) Additional United Kingdom Withholding Tax Matters .
(i) Subject to (ii) below, each Lender and the Borrower shall cooperate in completing any procedural formalities necessary
for such the Borrower to obtain authorization to make such payment without withholding or deduction for Taxes imposed under the
laws of the United Kingdom.
(ii)
(A) A Lender on the Closing Date that (x) holds a passport under the HMRC DT Treaty Passport
scheme and w(y) wishes such scheme to apply to this Agreement, shall provide its scheme reference number and its jurisdiction
of tax residence to the Borrower and the Administrative Agent; and
(B) a Lender that becomes a Lender hereunder after the Closing Date closes that (x) holds a passport under the
HMRC DT Treaty Passport scheme and (y) wishes such scheme to apply to this Agreement, shall provide
44
its scheme reference number and its jurisdiction of tax residence to the Borrower and the Administrative Agent.
(iii) If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with
paragraph (g)(ii) above, the Borrower shall make a filing with HM Revenue & Customs with respect to such Lender (a “ Borrower
DTTP Request ”), and shall promptly provide such Lender with a copy of such filing; provided that, if:
(A) the Borrower has not made a Borrower DTTP Filing in respect of such Lender; or
(B) the Borrower has made a Borrower DTTP Filing in respect of such Lender but:
(1) such Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
(2) HM Revenue & Customs has not given the Borrower authority to make payments to such Lender without a
deduction for tax within 60 days of the date of such Borrower DTTP Filing;
and in each case, the Borrower has notified that Lender in writing of either (1) or (2) above, then such Lender and the
Borrower shall co-operate in completing any additional procedural formalities necessary for the Borrower to obtain
authorization to make that payment without withholding or deduction for Taxes imposed under the laws of the United
Kingdom .
(iv) If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with
paragraph (g)(ii) above, the Borrower shall not make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty
Passport scheme in respect of that Lender’s Commitment or its participation in any Loan unless the Lender otherwise agrees.
(v) The Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of such Borrower DTTP Filing to the
Agent for delivery to the relevant Lender.
(vi) Each Lender shall notify the Borrower and the Agent if it determines in its sole discretion that it is ceases to be entitled
to claim the benefits of an income tax treaty to which the United Kingdom is a party with respect to payments made by the Borrower
hereunder.
(h) If any party determines, in its reasonable discretion exercised in good faith, that it has received a refund of any Taxes
as to which it has been indemnified pursuant to Section 2.13 or this Section 2.15 (including additional amounts paid pursuant to this
Section 2.15), it shall pay to the indemnifying party an amount
45
equal to such refund (but only to the extent of indemnity payments made under Section 2.13 or this Section 2.15 with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount paid to such indemnifying party pursuant to the previous sentence (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to
repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.15(h), in no event will any
indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 2.15(h) if such payment would place
such indemnified party in a less favorable position (on a net after-Tax basis) than such indemnified party would have been in if the Tax
subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts with respect to such Tax had never been paid. This Section 2.15(h) shall not be construed to require any
indemnified party to make available its Tax returns (or any other information relating to its Taxes which it reasonably deems confidential) to
the indemnifying party or any other Person.
(i) Each Lender which becomes a party to this Agreement after the date of this Agreement shall indicate, in the
Assignment and Assumption or Incremental Facility Agreement, as applicable, which it executes on becoming a party hereto, which of the
following categories it falls into:
(A)
not a UK Qualifying Lender;
(B)
a UK Qualifying Lender (other than a UK Treaty Lender);
or
(C)
a UK Treaty Lender.
If a new Lender fails to indicate its status in accordance with this Section 2.15(i) then such new Lender shall be treated for
the purposes of this Agreement (including by the Borrower) as if it is not a UK Qualifying Lender until such time as it notifies the Agent which
category applies (and the Agent, upon receipt of such notification, shall inform the Borrower). For the avoidance of doubt, an Assignment and
Assumption shall not be invalidated by any failure of a Lender to comply with this Section 2.15(i).
(j) For purposes of this Section 2.15, the term “Lender” includes any Issuing Bank and the term “applicable law” includes
FATCA.
Each party’s obligations under this Section 2.15 shall survive the resignation or replacement of the Agent or any assignment
of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations
under any Loan Documents.
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SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each
payment required to be made by it hereunder or under any Loan Document (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon., New York City Time, on the date
when due, in immediately available funds, without set off or counterclaim. Any amounts received after such time on any date may, in the
discretion of the Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to such accounts as may be specified by the Agent, except that payments required to be made
directly to an Issuing Bank shall be so made and payments pursuant to Sections 2.13, 2.14, 2.15 and 9.05 shall be made directly to the Persons
entitled thereto. The Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period
of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Agent hereunder shall be
deemed to have been made by the time required if the Agent shall, at or before such time, have taken the necessary steps to make such payment
in accordance with the regulations or operating procedures of the clearing or settlement system used by the Agent to make such payments.
(b) If at any time insufficient funds are received by and available to the Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and
fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such
parties and (ii) second, towards payment of principal and LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the relative aggregate amount of principal of and accrued interest on their Loans and
participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the
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assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate of the Borrower (as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the
Agent for the account of the Lenders or Issuing Bank hereunder that the Borrower will not make such payment, the Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or Issuing Bank, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each
of the Lenders or Issuing Bank, as the case may be, severally agrees to repay to the Agent forthwith on demand the amount so distributed to
such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding
the date of payment to the Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with
banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it hereunder, then the Agent may, in its discretion
and notwithstanding any contrary provision hereof, apply any amounts thereafter received by the Agent for the account of such Lender to
satisfy such Lender’s payment obligations hereunder until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a
segregated account over which the Agent shall have exclusive control as cash collateral for, and application to, any future funding
obligations of such Lender hereunder, in the case of each of clause (i) and (ii) above, in any order as determined by the Agent in its
discretion.
SECTION 2.17. Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any
Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by
applicable law:
(i) Waivers and Amendments. The Commitment and Credit Exposure of such Defaulting Lender shall not be included
in determining whether the Required Lenders have taken or may take any action hereunder or under any other Loan Document
(including any consent to any amendment, waiver or other modification pursuant to Section 9.08); provided that any amendment,
waiver or other modification requiring the consent of all Lenders or all Lenders affected thereby shall, except as otherwise provided in
Section 9.08, require the consent of such Defaulting Lender in accordance with the terms hereof.
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(ii) Defaulting Lender Waterfall . Any payment of principal, interest, fees or other amounts received by the Agent for
the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received
by the Agent from a Defaulting Lender pursuant to Section 9.06 shall be applied at such time or times as may be determined by the
Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second , to the
payment of any amounts owing by such Defaulting Lender to the Issuing Bank; third , to Cash Collateralize the Issuing Bank’s
Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.04(j); fourth , as the Borrower may request (so
long as no Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof
as required by this Agreement, as determined by the Agent; fifth , if so determined by the Agent and the Borrower, to be held in a
deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect
to Loans under this Agreement and (y) Cash Collateralize the Issuing Bank’s future Fronting Exposure with respect to such Defaulting
Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.04(j); sixth , to the payment
of any amounts owing to the Lenders or the Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by
any Lender or the Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement; seventh , so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any
judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or LC Disbursements in
respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related
Letters of Credit were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be
applied solely to pay the Loans of, and LC Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or LC Disbursements owed to, such Defaulting Lender until such time as all Loans and
funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the Commitments without
giving effect to Section 2.17(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be
deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees.
(A) No Defaulting Lender shall be entitled to receive any fee pursuant to Section 2.07(a) for any period during
which that Lender is a
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Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive fees in respect of Letters of Credit pursuant to
Section 2.07(b) in respect of its participations in Letters of Credit for any period during which that Lender is a Defaulting Lender
only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash
Collateral pursuant to Section 2.04(j).
(C) With respect to any participation fee in respect of Letters of Credit not required to be paid to any Defaulting
Lender pursuant to clauses (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such
fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit that
has been reallocated to such Lender pursuant to clause (iv) below, (y) pay to the Issuing Bank, the amount of any such fee
otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Bank’s Fronting Exposure to such Defaulting
Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s
participation in LC Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable
Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the conditions set
forth in Section 4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Agent at
such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and
(y) such reallocation does not cause the aggregate Credit Exposure of any Non-Defaulting Lender to exceed such Lender’s
Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting
Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of
such Lender’s increased exposure following such reallocation.
(v) Cash Collateral. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the
Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable law, Cash Collateralize the
Issuing Bank’s Fronting Exposure in accordance with the procedures set forth in Section 2.04(j).
(b) Defaulting Lender Cure.
longer a Defaulting Lender, the Agent will so
If the Borrower, the Agent and the Issuing Bank agree in writing that a Lender is no
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notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which
may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Loans and funded
and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments (without giving
effect to Section 2.17(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender
to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c) New Letters of Credit. So long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue,
amend, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under
Section 2.13, or if the Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as
the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender
in connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.13, (ii) the Borrower is required to pay Indemnified Taxes or
any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, (iii) any Lender
is a Defaulting Lender or (iv) any Lender is a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to
such Lender and the Agent (and in the case of clause (iv) above, within 5 days after the date such Lender becomes a Non-Consenting
Lender), (A) require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04(b)), all its interests, rights (other than its existing rights to payments pursuant to Section 2.13 or 2.15) and obligations under this
Agreement and the other Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Agent and
each Issuing Bank, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and
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participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), and (iii) in the
case of any such assignment resulting from a claim for compensation under Section 2.13 or payments required to be made pursuant to
Section 2.15, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.19. Incremental Commitments . (a) The Borrower may on one or more occasions, by written notice to the
Agent, request prior to the Maturity Date, the establishment of Incremental Commitments; provided that the aggregate, cumulative amount of
all Incremental Commitments established pursuant to this Section 2.19 after the Closing Date shall not exceed $150,000,000. Each such notice
shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less
than 10 Business Days (or such shorter period as may be agreed to by the Agent) after the date on which such notice is delivered to the Agent,
(ii) the amount of the Incremental Commitments being requested and (iii) the identity of each Lender or other Person that the Borrower
proposes become an Incremental Lender with respect thereto, together with the proposed aggregate amount of the Incremental Commitment for
each such Lender or other Person (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or
decline, in its sole discretion, to provide such Incremental Commitment and (y) any such Person that is not a Lender must be an Eligible
Assignee that is reasonably acceptable to the Agent and each Issuing Bank).
(b) The terms and conditions of any Incremental Commitment and Loans and other extensions of credit to be made
thereunder shall be identical to the terms and conditions of the Commitments and Loans and other extensions of credit made thereunder.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed
and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Agent; provided that no
Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date
of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of
Loans and other extensions of credit thereunder to be made on such date, (ii) on the date of effectiveness thereof, the representations and
warranties of the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties
qualified as to materiality, in all respects, and (B) otherwise, in all material respects, except in the case of any such representation and
warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such
prior date, (iii) after giving effect to and the making of Loans and other extensions of credit thereunder to be made on the date of
effectiveness thereof, the Borrower shall be in
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compliance with the covenants set forth in Section 6.12 on a pro forma basis as if such Loans or other extensions of credit had been incurred
or assumed on the first day of the Test Period most recently ended on or prior to the date of such effectiveness, (iv) the Borrower shall make
any payments required to be made pursuant to Section 2.14 in connection with such Incremental Commitments and the related transactions
under this Section 2.19 and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates,
officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each
Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the reasonable judgment of the Agent, to give effect to the provisions of this Section 2.19.
(d) Upon effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be
deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall
be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and
(ii)(A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase)
the Commitment of such Incremental Lender and (B) the aggregate amount of the Lenders’ Commitments shall be increased by the amount
of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the
term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Credit Exposure of the
Incremental Lender holding such Commitment, and the Applicable Percentages of all the Lenders shall automatically be adjusted to give
effect thereto.
(e) On the date of the effectiveness of any Incremental Commitments, each Lender shall be deemed to have assigned to
each Incremental Lender holding such Incremental Commitments, and each such Incremental Lender shall be deemed to have purchased
from each Lender, in an amount equal to the principal amount thereof (together with accrued and unpaid interest), such interests in the Loans
and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments
and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders (including such Incremental Lenders) ratably
in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Commitments. Any Loans
outstanding immediately prior to the date of the effectiveness of such Incremental Commitments that are Eurodollar Loans will (except to the
extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of,
the Lenders holding such Loans immediately prior to the date of the effectiveness of such Incremental Commitments, in each case until the
last day of the then-current Interest Period applicable to any such Loan, at which time such Loans will be repaid or refinanced with new
Loans made pursuant to Section 2.01 in accordance with the Applicable Percentages of the Lenders (including the Incremental Lenders) after
giving effect to the effectiveness of such Incremental Commitments;
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provided , however , that upon the occurrence of any Event of Default, each Incremental Lender will promptly purchase (for cash at face
value) assignments of portions of such outstanding Loans of other Lenders so that, after giving effect thereto, all Loans that are Eurodollar
Loans are held by the Lenders (including the Incremental Lenders) in accordance with their then-current Applicable Percentages. Any such
assignments shall be effected in accordance with the provisions of Section 9.04, provided that the parties hereto hereby consent to such
assignments and the minimum assignment amounts and processing and recordation fee set forth in Section 9.04(b) shall not apply
thereto. Any ABR Loans outstanding on the date of the effectiveness of such Incremental Commitments shall either be prepaid on such date
or refinanced on such date (subject to the satisfaction of applicable borrowing conditions) with Loans made on such date by the Lenders
(including the Incremental Lenders) in accordance with their Applicable Percentages. In order to effect any such refinancing, (i) each
Incremental Lender will make ABR Loans by transferring funds to the Agent in an amount equal to the aggregate outstanding amount of
such Loans of such Type times a percentage obtained by dividing the amount of such Incremental Lender’s Incremental Commitment by the
aggregate amount of the Lenders’ Commitments (after giving effect to the effectiveness of the Incremental Commitments on such date) and
(ii) such funds will be applied to the prepayment of outstanding ABR Loans held by the Lenders other than the Incremental Lenders, and
transferred by the Agent to the Lenders other than the Incremental Lenders, in such amounts so that, after giving effect thereto, all ABR
Loans will be held by the Lenders in accordance with their then-current Applicable Percentages. On the date of the effectiveness of such
Incremental Commitments, the Borrower will pay to the Agent, for the accounts of the Lenders receiving such prepayments, accrued and
unpaid interest on the aggregate principal amount of the Loans of the Borrower being prepaid. The Agent and the Lenders hereby agree that
the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the
transactions effected pursuant to the immediately preceding sentence.
(f) The Agent shall notify Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in
Section 2.19 and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and of the
Applicable Percentages of the Lenders after giving effect thereto and of the assignments deemed to have been made pursuant to
Section 2.19(e).
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. Organization; Powers. The Borrower and each of its Covered Subsidiaries is duly organized, validly
existing and in good standing (if applicable) under the laws of its jurisdiction of organization, has all requisite authority to
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conduct its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, is qualified to do business in each jurisdiction where such qualification is required.
SECTION 3.02. Authorization and Enforceability. The Transactions are within the Borrower’s corporate powers and have
been duly authorized by all necessary corporate and, if required, stockholder action. This Agreement has been duly executed and delivered by
the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Approvals; No Conflict. The Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority or any third party (including any consent of the Parent pursuant to the
Shareholder Agreement), except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or
regulation, charter, by-laws or other organizational documents of the Borrower or any of its Covered Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any Parent Agreement, or any indenture, material agreement or other
material instrument binding upon the Borrower or any of its Covered Subsidiaries or any of their assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Covered Subsidiaries, and (d) will not result in the creation or imposition of any
Lien on any assets of the Borrower or any of its Covered Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change . (a) The Borrower has heretofore furnished to the
Lenders (i) the consolidated balance sheet and related consolidated statements of operations, comprehensive income, changes in stockholders’
equity and cash flows of OMUSH and its consolidated subsidiaries as of and for the fiscal year ended December 31, 2013, audited by and
accompanied by the opinion of KPMG LLP, independent registered public accounting firm, and (ii) the unaudited consolidated balance sheet
and related consolidated statements of operations, comprehensive income and cash flows of OMUSH and its consolidated subsidiaries as of and
for the fiscal quarter and the portion of the fiscal year ending June 30, 2014, certified by its chief financial officer. Such financial statements
(including the related notes and schedules thereto) present fairly in all material respects the financial condition and results of operations of
OMUSH and its consolidated subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above.
(b) Since December 31, 2013, there has been no material adverse change in the business, assets, operations, or financial
condition of OMUSH and its subsidiaries, taken as a whole, and since the Closing Date, there has been no material adverse change in the
business, assets, operations, or financial condition of the Borrower and its Subsidiaries, taken as a whole.
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(c) Except as disclosed in the financial statements referred to above or the notes thereto, after giving effect to the
Transactions, none of the Borrower or its Subsidiaries has, as of the Closing Date, any material contingent liabilities, unusual long-term
commitments or material unrealized losses.
SECTION 3.05. Properties . (a) Each of the Borrower and its Covered Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, trade names, copyrights, patents
and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the
rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against or affecting the
Borrower or any of its Covered Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or (ii) that involve this
Agreement or the Transactions.
(b) Except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.
SECTION 3.07. Compliance with Laws and Agreements . Each of the Borrower and its Covered Subsidiaries is in
compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements
and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. Each Subsidiary of the Borrower that is an “investment adviser” within the meaning of the
Investment Advisers Act of 1940 is in compliance in all material respects with the requirements of the Investment Advisers Act of 1940 and the
rules and regulations of the SEC thereunder, including the registration and reporting requirements thereof. No Default has occurred and is
continuing.
SECTION 3.08. Investment Company Status.
and that are duly registered as
Except for Funds that are managed by Covered Subsidiaries of the Borrower
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Investment Companies under the Investment Company Act of 1940, neither the Borrower nor any Subsidiary is an “investment company” as
defined in, or subject to regulation as an “investment company” under, the Investment Company Act of 1940. .
SECTION 3.09. Margin Regulations. (a) Not more than 25% of the value of the assets of the Borrower and the Covered
Subsidiaries subject to any restrictions on the sale, pledge or other disposition of assets under this Agreement, any other Loan Document or any
other agreement to which any Lender or Affiliate of a Lender is party will at any time be represented by Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, for any purpose that entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board, including
Regulation T, Regulation U and Regulation X.
SECTION 3.10. Taxes. The Borrower and each Covered Subsidiary have filed all United States Federal Tax returns and
all other Tax returns which are required to be filed and have paid all Taxes stated to be due by the Borrower and each Covered Subsidiary
pursuant to said returns or pursuant to any assessment received by the Borrower or any Covered Subsidiary, including without limitation all
Federal and state withholding Taxes and all Taxes required to be paid pursuant to applicable law, except such Taxes, if any, as are being
contested in good faith by appropriate proceedings and as to which adequate reserves have been provided for on the books of the Borrower or
such Covered Subsidiary, or where a failure to so file or pay could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with
all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse
Effect. As of the most recent valuation date for any Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the
Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be
expected to result in the funding attainment percentage dropping below 60% as of the most recent valuation date.
SECTION 3.12. Disclosure. No information included in any of the reports, financial statements, certificates or other
information furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the negotiation of this Agreement or any
other Loan Document or delivered hereunder or thereunder (as modified or supplemented by other written information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, taken as a whole, not misleading; provided that, with respect to projected financial information and forward
looking statements, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time when prepared, it being understood that projected financial information and forward
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looking statements are inherently uncertain and that the Borrower gives no representation and warranty that projected results will be achieved.
SECTION 3.13. Anti-Corruption Laws and Sanctions . The Borrower has implemented and maintains in effect policies and
procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with
Anti-Corruption Laws and applicable Sanctions, and the Borrower, its Subsidiaries and their respective officers and employees and, to the
knowledge of the Borrower, its directors and agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material
respects. None of (a) the Borrower, any Subsidiary or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors,
officers or employees, or (b) to the knowledge of the Borrower, any agent of the Borrower or any Subsidiary that will act in any capacity in
connection with or benefit from the credit facility established hereby, is a Sanctioned Person. The Transactions will not violate
Anti-Corruption Laws or applicable Sanctions.
ARTICLE IV
Conditions
SECTION 4.01. Conditions to Initial Borrowing . The obligations of the Lenders to make Loans hereunder and of the
Issuing Banks to issue Letters of Credit hereunder are subject to the satisfaction of the following conditions (or waiver in accordance with
Section 9.08(b)):
(a) The Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy transmissions of signed
signature pages or email transmissions of signed signature pages in PDF format) that such party has signed a counterpart of this
Agreement.
(b) The Agent shall have received favorable written opinions (addressed to the Agent and the Lenders and dated the
Closing Date) of Bingham McCutchen LLP, New York counsel to the Borrower, and English counsel to the Borrower, substantially
in the forms set forth in Exhibit C hereto, and covering such other matters relating to the Borrower, this Agreement or the
Transactions as the Agent or Required Lenders shall reasonably request. The Borrower hereby instructs its counsel to deliver such
opinion to the Agent.
(c) The Agent shall have received such documents and certificates as the Agent or its counsel shall reasonably have
requested relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any
other legal matters relating to the Borrower, this Agreement or the Transactions, all in form and substance reasonably satisfactory to
the Agent and its counsel.
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(d) The Reorganization and the IPO shall have been consummated.
(e) The Agent shall have received a certificate, dated the Closing Date and signed by the president or chief financial officer
of the Borrower, confirming (i) compliance, as of the Closing Date, with the conditions set forth in paragraphs (a) and (b) of
Section 4.02 and (ii) the consummation of the Reorganization, as contemplated by and described in the Registration Statement, and
of the IPO.
(f) The Agent shall have received a certificate, dated the Closing Date and signed by the chief financial officer of the
Borrower, as to the solvency of the Borrower on a consolidated basis after giving effect to the Transactions to occur on or about the
Closing Date, including the initial Borrowings hereunder and the payment of the OMGUK Dividend, in form and substance
reasonably satisfactory to the Agent.
(g) Immediately after giving effect to the transactions contemplated hereby (including those contemplated by clause
(h) below), the Borrower and the Covered Subsidiaries shall have outstanding no Indebtedness other than (i) Indebtedness hereunder,
(ii) Indebtedness referred to in Section 6.01(c), and (iii) Indebtedness owed by the Borrower to OMGUK under the Note, provided
that such Indebtedness is subordinated in writing in right of payment to the Obligations pursuant to an Affiliate Subordination
Agreement.
(h) All Indebtedness owed by the Borrower to OMGUK under the OMGUK Dividend Note shall have been, or
substantially simultaneously with the initial Borrowing hereunder shall be, repaid with the proceeds of such Borrowing and/or other
available funds, and the Agent shall be reasonably satisfied with the arrangements for ensuring such repayment.
(i) The Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date hereof,
including, to the extent invoiced, fees and cost reimbursements of all reasonable out-of-pocket expenses required to be reimbursed or
paid by the Borrower hereunder. The Borrower shall have paid all fees and other amounts payable on the Closing Date pursuant to
the Fee Letters.
(j) The Lenders shall have received all documentation and other information about the Borrower and its Affiliates required
by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act.
SECTION 4.02. Conditions to Each Credit Event. The obligation of each Lender to make Loans on the occasion of any
Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of Credit, are subject to the satisfaction of the following
conditions:
(a) the representations and warranties set forth in this Agreement shall be
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true and correct (i) in the case of the representations and warranties qualified as to materiality, in all respects and (ii) otherwise, in all
material respects, in each case on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, except with respect to representations and warranties expressly made only as of an earlier date, in
which case such representations and warranties were so true and correct on and as of such earlier date;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension
of such Letter of Credit, as applicable, no Default shall have occurred and be continuing; and
(c) receipt by the Agent of a Borrowing Request in accordance with Section 2.03, or, in the case of the issuance,
amendment, extension or renewal of a Letter of Credit, receipt by the relevant Issuing Bank and Agent of a notice requesting the
issuance, amendment, extension or renewal of such Letter of Credit to the extent required by Section 2.04(b).
Each Borrowing and each issuance, amendment, renewal or extension of any Letter of Credit, shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable
hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated, in each case, without any pending draw, and all
LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements; Ratings Changes and Other Information . The Borrower will furnish to the
Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related
consolidated statements of operations, comprehensive income, changes in stockholders’ equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KMPG LLP or other
independent public accountants of recognized national standing (without a “going concern” or like qualification commentary or exception
and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied (it being understood and agreed that such financial
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statements will be prepared on substantially the same basis and with the substantially the same presentation as the audited financial
statements of OMGUS referred to in Section 3.04);
(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, or, with
respect to the third fiscal quarter of 2014, such longer period as may be permitted by the SEC in connection with the Borrower’s SEC
reporting requirements, its consolidated balance sheet and related consolidated statements of operations, comprehensive income and cash
flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form
the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause (a) or (b) above, a duly executed and completed
Compliance Certificate (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance
with Section 6.12 and including calculations for the Test Period ending on the last day of the most recent fiscal quarter covered by such
financial statements of Consolidated Adjusted EBITDA (including a detailed reconciliation from Consolidated Net Income to Consolidated
Adjusted EBITDA) and Consolidated Interest Expense, (iii) stating whether any change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate and (iv) attaching unaudited consolidating financial statements
relating to the financial statements delivered under paragraph (a) or (b) above, as applicable;
(d) concurrently with any delivery of financial statements under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent required by accounting rules or guidelines);
(e) promptly after Moody’s or S&P shall have initially established, or at any time thereafter announced a change in, its
Applicable Rating, written notice of such Applicable Rating or change; and
(f) promptly following any request therefor, such other information regarding the operations, business affairs and financial
condition of the Borrower or any Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent or any Lender
may reasonably request.
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SECTION 5.02. Notice of Material Events . Promptly and in any event within five Business Days after a Responsible
Officer of the Borrower becomes aware thereof, the Borrower will give notice in writing to the Agent of the following:
(a) any Event of Default or Default, specifying the nature and extent thereof and the corrective action (if any) taken or
proposed to be taken with respect thereto;
(b) the filing or commencement of, or any written notice of intention of any Person to file or commence, any action, suit,
proceeding or investigation, whether at law or in equity or by or before any arbitrator or Governmental Authority, against or affecting
the Borrower or any Affiliate of the Borrower as to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in, a Material Adverse Effect; and
(d) any other development or event that has resulted in, or could reasonably be expected to result in, a Material Adverse
Effect.
SECTION 5.03. Existence; Conduct of Business . The Borrower will, and will cause each of its Covered Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses,
registrations, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.04.
SECTION 5.04. Payment of Obligations . The Borrower will, and will cause each of its Covered Subsidiaries to, pay its
obligations (other than Indebtedness), including Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall
become delinquent or in default, except where the validity or amount thereof is being contested in good faith by appropriate proceedings and
(a) the Borrower or such Covered Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP or
(b) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will cause each of its Covered Subsidiaries
to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear
excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations.
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SECTION 5.06. Books and Records; Inspection Rights . The Borrower will, and will cause each Covered Subsidiary to,
keep proper books and accounts in which full, true and correct entries are made of all dealings and transactions in relation to its business and
activities sufficient to permit the preparation of consolidated financial statements in accordance with GAAP. Upon reasonable notice and
during normal business hours, the Borrower will, and will cause each Covered Subsidiary to, provide the Agent or any Lender acting with the
consent of the Agent with access to the books and financial records of the Borrower and each Covered Subsidiary, to make reasonable
examinations and copies of the books of accounts and other financial records of the Borrower and each Covered Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Covered Subsidiary with, and to be advised as to the same by, their officers and, in the
presence of officers or other representatives of the Borrower, independent accountants at such reasonable times and intervals as the Agent or
Required Lenders may reasonably request; provided , however, so long as no Event of Default has occurred and is continuing, there shall not be
more than one such inspection and examination in any calendar year.
SECTION 5.07. Compliance with Laws . The Borrower will, and will cause each of its Subsidiaries to, comply with all
laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce
policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and
agents with Anti-Corruption Laws and applicable Sanctions.
SECTION 5.08. Use of Proceeds. The Borrower will use the proceeds of (a) the Loans (i) to pay the OMGUK Dividend
Note and (ii) for working capital and general corporate purposes of the Borrower and the Covered Subsidiaries, including acquisitions,
distributions and investments and (b) the Letters of Credit solely for working capital and general corporate purposes of the Borrower and the
Covered Subsidiaries. The Borrower will not request any Borrowing or Letter of Credit, and the Borrower shall not use, and shall procure that
its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of
Credit (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to
any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or
transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any
Sanctions applicable to any party hereto.
SECTION 5.09. Payment of OMGUK Dividend Note. The Borrower will pay all Indebtedness under the OMGUK
Dividend Note promptly upon the occurrence of the Closing Date and the consummation of the IPO.
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ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable
hereunder have been paid in full and all Letters of Credit have expired or terminated, in each case, without any pending draw, and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness.
to exist any Indebtedness except:
The Borrower will not and will not permit any Covered Subsidiary to incur, create or suffer
(a) Indebtedness created hereunder, including Indebtedness pursuant to Incremental Facility Agreements;
(b) Indebtedness (i) of the Borrower to any Covered Subsidiary and (ii) of any Covered Subsidiary to the Borrower or any
other Covered Subsidiary; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Borrower
or any other Covered Subsidiary and (B) any such Indebtedness owing by the Borrower shall be unsecured and subordinated in
writing in right of payment to the Obligations pursuant to an Affiliate Subordination Agreement;
(c) Indebtedness of the Borrower or any Covered Subsidiary existing on the Closing Date and described on Schedule 6.01
and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof;
(d) Indebtedness of the Borrower or any Covered Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease Obligations, and any Indebtedness assumed in connection with
the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such
Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and
(ii) the aggregate principal amount of Indebtedness permitted by this clause (d) shall not exceed $5,000,000 at any time outstanding;
(e) Indebtedness of any Person that becomes a Covered Subsidiary after the date hereof; provided that (i) such Indebtedness
exists at the time such Person becomes a Covered Subsidiary and is not created in contemplation of or in connection with such
Person becoming a Covered Subsidiary, (ii) such Indebtedness has recourse solely to the assets of such Person and not to any other
assets of the Borrower or any other Covered Subsidiary, (iii) such Indebtedness is not Guaranteed by the Borrower or any other
Covered Subsidiary and (iv) such
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Indebtedness shall be refinanced or replaced no later than 90 days after the date on which such Person becomes a Covered Subsidiary
with unsecured Indebtedness of the Borrower that is not Guaranteed by any Covered Subsidiary;
(f) unsecured Indebtedness of the Borrower and its Covered Subsidiaries representing deferred compensation to employees
of the Borrower and its Covered Subsidiaries or long-term liability accruals in respect of previously recognized compensation
expense attributable to equity and profit sharing awards to employees;
(g) Non-Recourse Seed Indebtedness;
(h) unsecured Indebtedness of any Covered Subsidiary under a revolving credit facility with a Core Business Entity of
which Equity Interests are owned by such Covered Subsidiary or other Covered Subsidiaries; provided that (i) such Indebtedness is
incurred in anticipation of the payment by such Core Business Entity to such Covered Subsidiary of a regularly scheduled
distribution or a scheduled payment of specifically identifiable realized Performance Fees, (ii) any borrowing under any such
revolving credit facility shall be repaid at the time such dividend is paid or payment is made, but not in any event later than 90 days
after the date on which such Indebtedness was initially incurred and (iii) the aggregate principal amount of Indebtedness permitted by
this clause (h) shall not exceed $10,000,000 at any time outstanding;
(i) other Indebtedness of Covered Subsidiaries in an aggregate principal amount not exceeding $5,000,000 at any time
outstanding; and
(j) other unsecured Indebtedness of the Borrower that is not Guaranteed by any Covered Subsidiary.
SECTION 6.02. Liens. The Borrower will not, nor will it permit any Covered Subsidiary to, create, incur, or suffer to exist
any Lien in or on its property (now or hereafter acquired), or on any income or revenues or rights (including accounts receivable) in respect of
any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien existing on the Closing Date and described in Schedule 6.02 hereto; provided that (i) such Lien shall not apply
to any property or asset of the Borrower or any Covered Subsidiary other than the properties or assets to which such Lien applies on
the Closing Date and (ii) such Lien shall secure only those obligations that it secures on the Closing Date and extensions, renewals
and replacements thereof that do not increase the outstanding principal amount thereof;
(c) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Covered Subsidiary; provided
that (i) such Liens secure only Indebtedness permitted by Section 6.01(d) that is incurred to finance such
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acquisition, construction or improvement ( provided that such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed
the cost of acquiring, constructing or improving such fixed or capital assets) and (ii) such Liens shall not apply to any other asset of
the Borrower or any Covered Subsidiary (other than the proceeds thereof); and
(d) Liens on assets of a Person that becomes a Covered Subsidiary securing Indebtedness permitted by Section 6.01(e);
provided that (A) such Lien is not created in contemplation of or in connection with such Person becoming a Covered Subsidiary,
(B) such Lien does not apply to any other property or assets of the Borrower or any Covered Subsidiary and (C) such Lien shall
secure only those obligations that it secures on the date such Person becomes a Covered Subsidiary;
(e) Liens on seed investments of Covered Subsidiaries securing Non-Recourse Seed Indebtedness relating to such
investments; and
(f) any Liens securing Indebtedness or other obligations in an aggregate principal amount not to exceed $5,000,000 at any
time outstanding.
Notwithstanding anything herein to the contrary, the Borrower will not, and will not permit any Covered Subsidiary to
(i) create, incur, assume or permit to exist any Lien on the Equity Interests in, or the Management Fees, Performance Fees, Accounts, or rights
to any of the foregoing of, any Covered Subsidiary or other Core Business Entities, (ii) sell any Equity Interests owned by it in Covered
Subsidiaries or in other Core Business Entities pursuant to any repurchase agreement or similar agreement or (iii) assign or sell any income or
revenues from or rights in respect of the Equity Interests in, and the Management Fees, Performance Fees, Accounts, or rights to any of the
foregoing of, any Covered Subsidiary or other Core Business Entity, except (x) in the case of clause (i) of this sentence, Permitted
Encumbrances and (y) in the case of clauses (ii) and (iii) of this sentence, in connection with any transaction which is expressly permitted
pursuant to Section 6.05. Notwithstanding anything to the contrary in this Section 6.02, no transaction specifically permitted by 6.05 shall be
deemed to violate this Section 6.02.
SECTION 6.03. Sale and Lease-Back Transactions. The Borrower will not, and will not permit any Covered Subsidiary
to, enter into any arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or
useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to
use for substantially the same purpose or purposes as the property being sold or transferred.
SECTION 6.04. Fundamental Changes; Conduct of Business. (a) The Borrower will not, and will not permit any Covered
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that, if at the time thereof and
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immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person may merge into or consolidate with the
Borrower in a transaction in which the Borrower is the surviving entity; (ii) any Person (other than the Borrower) may merge or consolidate
with any Covered Subsidiary in a transaction in which the surviving entity is a Covered Subsidiary; (iii) any Covered Subsidiary may liquidate,
dissolve or otherwise wind down if the Borrower determines in good faith that such liquidation, dissolution or winding down is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders; and (iv) the Borrower or any Covered Subsidiary may
consummate a merger, liquidation or dissolution to effect an asset sale permitted by Section 6.05.
(b) Neither the Borrower nor any Covered Subsidiary will engage to any material extent in any business other than Core
Businesses and businesses reasonably related thereto.
SECTION 6.05. Asset Sales. The Borrower will not, and will not permit any of its Covered Subsidiaries to, sell, transfer,
lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Borrower permit any of its Covered Subsidiaries
to issue any additional Equity Interest in such Covered Subsidiary (other than directors’ qualifying shares and other nominal amounts of Equity
Interests that are required to be held by other Persons under applicable law), except:
(a) sales, transfers, leases and other dispositions of inventory, used or surplus equipment and surplus office space in the
ordinary course of business;
(b) sales, transfers and dispositions of assets (i) solely between or among Covered Subsidiaries or (ii) from any Covered
Subsidiary to the Borrower;
(c) sales, transfers and other dispositions of assets (other than Equity Interests in a Covered Subsidiary or in a Core
Business Entity) that are not permitted by any other clause of this Section; provided that the aggregate fair market value of all assets
sold, transferred or otherwise disposed of in reliance upon this clause (c) shall not exceed, during any fiscal year of the Borrower, an
amount equal to 10% of Consolidated Adjusted EBITDA for the most recently ended fiscal year of the Borrower;
(d) issuances of Equity Interests by any Covered Subsidiary to the Borrower or any other Covered Subsidiary so long as the
recipient thereof is (i) the direct parent entity of the issuing Person, (ii) the Borrower or (iii) a wholly-owned subsidiary of the
Borrower;
(e) sales of securities (other than Equity Interests in Covered Subsidiaries or in Core Business Entities) or other instruments
held by the Borrower or any Covered Subsidiary for investment or cash management purposes, including securities or other
instruments acquired or held by a Covered Subsidiary for purposes of seeding, funding or otherwise maintaining any investment
product or Fund with respect to which a Covered Subsidiary acts
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as an investment adviser, manager, distributor, general partner or in any similar capacity, in each case in the ordinary course of
business and consistent with the customary practices of the Borrower and the Covered Subsidiaries or of the Parent;
(f) grants or sales of Equity Interests and grants of profit participation interests, including derivative instruments related
thereto, in Covered Subsidiaries engaged in Core Businesses or in Core Business Entities to employees of such Covered Subsidiaries
or Core Business Entities or of related Covered Subsidiaries (or to special purpose vehicles substantially all of the Equity Interests in
which are owned by such employees) for the primary purpose of effecting compensation (including incentive compensation)
arrangements with such employees for their services, provided that such grants are made in the ordinary course of business;
(g) sales or transfers of assets to the Parent or its Affiliates made pursuant to and in accordance with the terms of the
Co-Investment Deed or the Deferred Tax Asset Deed;
(h) sales or transfers to effect the Reorganization; and
(i) sales or transfers of Equity Interests owned by the Borrower and the Covered Subsidiaries in any Covered Subsidiary or
Core Business Entity; provided that (w) all Equity Interests in Covered Subsidiaries and Core Business Entities which are sold or
transferred pursuant to this clause (i) in any fiscal year of the Borrower shall not, in the aggregate, account for more than 10% of
Consolidated Adjusted EBITDA for the immediately preceding fiscal year of the Borrower, (x) the Borrower determines in good
faith that such sale or transfer is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (y) after
giving effect to such sale or transfer, the Borrower shall be in compliance with the covenants set forth in Section 6.12 on a pro forma
basis as if such sale or transfer had been consummated on the first day of the Test Period most recently ended on or prior to the date
of such sale or transfer and (z) all sales, transfers and dispositions permitted by this clause (i) shall be made for at least 75% cash
consideration (with contingent earnout payment obligations not being deemed “consideration” for purposes of this subclause (z));
provided that all sales, transfers, leases and other dispositions permitted hereby (except for those made pursuant to clause (b)(i), (d), (f), (g) and
(h) hereof) shall be made for fair value.
SECTION 6.06. Transactions with Affiliates. The Borrower will not, and will not permit any Covered Subsidiary to, sell
or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates (any such transaction, a “ Restricted Affiliate Transaction ”), except that the Borrower or any Covered Subsidiary may:
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(a) engage in any Restricted Affiliate Transaction at prices and on terms and conditions which, taken as a whole, are not
materially less favorable to the Borrower or such Covered Subsidiary than would prevail in a comparable arms’-length transaction with
unrelated third parties;
(b) effect any Restricted Payment permitted by Section 6.07;
(c) satisfy any indemnification obligation to, and other employment arrangements with, directors, officers, employees,
managers and consultants of the Borrower or any Covered Subsidiary entered into in the ordinary course of business;
(d) enter into and continue ordinary course employment, compensation and benefits arrangements, including the
reacquisition by Covered Subsidiaries from employees of equity and profit participation interests previously granted to such employees as
part of their compensation;
(e) effect any transaction expressly permitted by Section 6.05;
(f) enter into any Management Fee Agreement;
(g) effect transactions solely between or among Covered Subsidiaries or the Borrower and one or more Covered
Subsidiaries otherwise permitted hereunder;
(h) effect the Reorganization and enter into any transition services agreements relating thereto and to the IPO (whether
entered into on or after the Closing Date); provided that any such transition services agreement is on an arms-length basis or otherwise
provides for periodic cash payments or reimbursements (not less frequently than quarterly) in amounts not less than the costs and expenses
(including allocable employee compensation expenses) incurred by the Borrower or the Covered Subsidiaries in providing services
thereunder, and having terms (including with respect to the calculation of such costs and expenses) customary for transition services
agreements of the same general type; and
(i) perform its obligations under the Parent Agreements and the Note in accordance with the terms thereof.
SECTION 6.07. Limitation on Restricted Payments. The Borrower will not declare or make, or permit any Covered
Subsidiary to declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment or incur any obligation (contingent or
otherwise) to do so except:
(a) each Covered Subsidiary may make Restricted Payments to the Borrower or any other Covered Subsidiary and to any
other Person that owns an Equity Interest in such Covered Subsidiary ratably according to such Person’s holdings of the type of
Equity Interests in respect of which a Restricted Payment is being made to the Borrower or any other Covered Subsidiary;
(b) the Borrower may pay the OMGUK Dividend prior to the
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consummation of the IPO and pay the OMGUK Dividend Note substantially simultaneously with the making of the initial Loans on
the Closing Date;
(c) Restricted Payments by any Covered Subsidiary to employees in respect of Equity Interests or equity or profit
participation interests in such Covered Subsidiary issued to such employee for the primary purposes of effecting a compensation
arrangement, including the reacquisition for cash consideration of such Equity Interests or equity or profit participation interests;
provided that such compensation arrangements and such Restricted Payments are made in the ordinary course; and
(d) So long as no Default has occurred and is continuing or would result therefrom, the Borrower may declare and pay
regular quarterly cash dividends on its ordinary shares outstanding; provided that any dividend declared at a time when no Default
has occurred and is continuing or would result from the payment thereof at such time may be paid on the announced payment date
therefor, not withstanding that a Default is then continuing or would result from such payment (but no such Default shall be deemed
to be waived as a result of this proviso).
SECTION 6.08. Limitation on Amendments to Certain Agreements . The Borrower will not agree to or permit any
amendment, modification, suspension or waiver of any provision of any documents relating to the organization of the Borrower or any Covered
Subsidiary, of any agreement or instrument evidencing or governing any Material Indebtedness or of any Parent Agreement that materially
impairs the creditworthiness of the Borrower or is adverse in any material respect to the rights or interests of the Lenders hereunder.
SECTION 6.09. Restrictive Agreements. The Borrower will not, and will not permit any Covered Subsidiary to, enter into,
incur or permit to exist any agreement or other arrangement that restricts or imposes any condition upon (a) the ability of the Borrower or any
Covered Subsidiary to create, incur or permit to exist any Lien upon any of its assets to secure any Obligations, (b) the ability of any Covered
Subsidiary to pay dividends or other distributions with respect to its Equity Interests or to make or repay loans or advances to the Borrower or
any Covered Subsidiary or (c) the ability of any Covered Subsidiary to Guarantee Indebtedness of the Borrower; provided that (i) the foregoing
shall not apply to (A) restrictions and conditions imposed by law or by any Loan Document, (B) restrictions and conditions existing on the date
hereof identified on Schedule 6.09 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of,
any such restriction or condition), (C) restrictions and conditions set forth in the Shareholder Agreement or the Intellectual Property License
Agreement as in effect on the Closing Date, (D) in the case of any Covered Subsidiary that is not a Wholly-Owned Subsidiary, restrictions and
conditions imposed by its organizational documents or any related joint venture, shareholder or similar agreement; provided that such
restrictions and conditions apply only to such Covered Subsidiary and to any Equity Interests in such Covered Subsidiary and (E) restrictions
and conditions imposed by loan documents entered into in connection with the Non70
Recourse Seed Indebtedness; provided that any such restrictions and conditions apply solely to the seed capital investments financed with such
Non-Recourse Seed Indebtedness, (ii) clause (a) of the foregoing shall not apply to (A) restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by Section 6.01 if such restrictions or conditions apply only to the assets securing such Indebtedness
or (B) customary provisions in leases and other agreements restricting the assignment thereof and (iii) clause (b) of the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating to the sale of assets that is applicable only to such assets and
solely pending such sale; provided that such sale is permitted hereunder.
SECTION 6.10. Hedging Agreements. The Borrower will not, and will permit any Covered Subsidiary to, enter into any
Hedging Agreement, except for Hedging Agreements entered into (i) to hedge or mitigate risks to which the Borrower or such Covered
Subsidiary has actual exposure and (ii) not for speculative purposes.
SECTION 6.11. Permitted Activities of Holding Companies. The Borrower will not permit US Sub or UK Sub to
(a) incur, directly or indirectly, any Indebtedness or any other monetary obligation or liability whatsoever, including with respect to
intercompany accounts, other than Indebtedness owing to the Borrower or intercompany indebtedness existing immediately after the
consummation of the Reorganization owed by UK Sub to US Sub, (b) create or suffer to exist any Lien upon any property or assets now owned
or hereafter acquired, leased or licensed by it other than Permitted Encumbrances or (c) engage in any business or activity or own any assets
other than (i) (A) in the case of US Sub, holding 100% of the Equity Interests of UK Sub, (B) in the case of UK Sub, owning 100% of the
Equity Interests of OMUSH and (C) owning Equity Interests of other Subsidiaries and (ii) as may be required by law.
SECTION 6.12. Financial Covenants.
quarter to exceed 3.00 to 1.00.
(a) The Borrower will not permit the Leverage Ratio at the end of any fiscal
(b) The Borrower will not permit the Interest Coverage Ratio in respect of any Test Period to be less than 4.00 to 1.00.
ARTICLE VII
Events of Default
If any of the following events (“ Events of Default ”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to
in clause (a) of this Article) payable under this Agreement, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of three or more
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Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any Covered Subsidiary in
connection with the Borrowings hereunder, in connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, or in any report, certificate, financial statements or other document furnished pursuant to or in connection with
any Loan Document or any amendment or modification thereof or waiver thereunder shall prove to have been false or misleading in
any material respect when so made, deemed made or furnished;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a),
Section 5.03 (with respect to the Borrower’s existence), the second sentence of Section 5.08, Section 5.09 or Article VI;
(e) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document
(other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Agent or any Lender to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Covered Subsidiary shall fail to make any payment (whether of principal or interest and regardless
of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or
that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not
apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any Covered Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Covered Subsidiary
or for a substantial part of its assets, and, in any such case referred to in (i) or (ii) above, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
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(i) the Borrower or any Covered Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Covered Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) one or more judgments for the payment of money in an aggregate amount in excess of $10,000,000 (net of insurance
proceeds payable in respect thereto; provided that the applicable insurance carriers have been notified of such judgment and are not
disputing liability with respect to the netted amount) shall be rendered against the Borrower, any Covered Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any
Covered Subsidiary to enforce any such judgment;
(k) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect; or
(l) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Article ), and at any time
thereafter during the continuance of such event, the Agent may, and at the request of the Required Lenders shall, by notice to the Borrower,
take any of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and any unpaid accrued fees and all other obligations of the Borrower accrued
hereunder and under any other Loan Document, shall become forthwith due and payable, and (iii) require the deposit of cash collateral in
respect of LC Exposure as provided in Section 2.04(j), in each case without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in any event with respect to the Borrower described in paragraph (h) or (i) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued fees and all other
obligations of the Borrower accrued hereunder
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and under any other Loan Document, shall automatically become due and payable and the deposit of such cash collateral in respect of LC
Exposure shall automatically become due, in each case without presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding.
ARTICLE VIII
The Agent
Each of the Lenders and each Issuing Bank hereby irrevocably appoints the Agent as its agent and authorizes the Agent to
take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof and the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender or an Issuing Bank
as any other Lender or Issuing Bank and may exercise the same as though it were not the Agent, and such bank and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Agent hereunder and without any duty to account therefor to
the Lenders or Issuing Bank.
The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Agent is
required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or
as the Agent shall believe in good faith to be necessary, under the circumstances as provided in Section 9.08); provided that the Agent shall not
be required to take any action that, in its opinion, could expose the Agent to liability or be contrary to any Loan Document or applicable law,
and (c) except as expressly set forth herein, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Agent or any of its
Affiliates in any capacity. The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith to be
necessary, under the circumstances as provided in Section 9.08) or in the absence of its own gross negligence or willful misconduct, as
determined by a court of competent jurisdiction by a final and non-appealable judgment. The Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the Agent by the Borrower, a Lender or the Issuing Bank, and the Agent shall not
be responsible for or have any duty
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to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any Loan Document,
(ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Agent or satisfaction of any condition that expressly refers to the matters described therein being
acceptable or satisfactory to the Agent. Notwithstanding anything herein to the contrary, the Agent shall not have any liability arising from
any confirmation of the Credit Exposure or the component amounts thereof.
Nothing in this Agreement or any other Loan Document shall require the Agent or any of its Related Parties to carry out any
“know your customer” or other checks in relation to any Person on behalf of any Lender and each Lender confirms to the Agent that it is solely
responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the
Agent or any of its Related Parties.
The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed or sent or otherwise authenticated by the proper Person. The Agent also may
rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
The Agent may perform any and all its duties and exercise its rights and powers hereunder or under any other Loan
Documents by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in
connection with any syndication of the credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as provided in this paragraph, the Agent may resign at any
time by notifying the Lenders, the Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the right,
with the consent of the Borrower (such consent not to be unreasonably withheld or delayed), to appoint a successor. If no successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment
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within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing
Banks, appoint a successor Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank.
If the Person serving as Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders
may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Agent and, with
the consent of the Borrower (such consent not to be unreasonably withheld or delayed), appoint a successor. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by
the Required Lenders) (the “ Removal Effective Date ”), then such removal shall nonetheless become effective in accordance with such notice
on the Removal Effective Date.
Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring or removed Agent shall be discharged from its
duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the Agent’s resignation or removal hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such retiring Agent, its sub agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.
Each Lender further represents that it has, independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a
Lender, and to make, acquire or hold Loans hereunder. Each Lender shall, independently and without reliance upon the Agent or any other
Lender and based on such documents and information (which may contain material, non-public information within the meaning of the United
States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or
thereunder and in deciding whether or to the extent to which it will continue as a Lender or assign or otherwise transfer its rights, interests and
obligations hereunder.
The provisions of this Article are solely for the benefit of the Agent, the Lenders and the Issuing Banks and the Borrower
shall not have any rights as a third party beneficiary of any such provisions.
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other communications expressly permitted to be given by
telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail, sent by telecopy or, where permitted herein, sent by
email, as follows:
(i) if to the Borrower, to it at OM Asset Management plc, Attention of: Stephen H. Belgrad, Chief Financial Officer
(Telecopy No. (617)369-7472); email: [email protected]; with a copy to Richard Hart, Senior Legal Counsel (Telecopy
No. (617)369-7441 ); email: [email protected];
(ii) if to the Agent, to it at Citibank, N.A., 1615 Brett Road, Building III, New Castle, DE 19720, Attention of Bank Loan
Syndications Department (Telecopy No. (212) 994-0961); email: [email protected] with a copy to email:
[email protected]; and
(iii) if to a Lender, to it at its address (or telecopy number or email address) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by
electronic mail communications pursuant to procedures approved by the Agent; provided that the foregoing shall not apply to notices
pursuant to Article II unless otherwise agreed by the Agent and the applicable Lender or Issuing Bank, as the case may be. The Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
(c) Each of the Borrower and the Agent may change its address, telecopy number or email address for notices and other
communications hereunder by notice to the other parties hereto. Each Lender may change its address, telecopy number or email address for
notices and other communications hereunder by notice to the Borrower and the Agent. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in
the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making
by the Lenders of the Loans, regardless of any investigation made by any such other party or on its behalf, and notwithstanding that the Agent,
or any Lender may have had notice or knowledge of any
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Default or incorrect representation or warranty at the time any Loan is made, or continued or converted hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or
any other Loan Document is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.14, 2.15, 9.05 and 9.19 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.03. Binding Effect. Except as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Borrower and the Agent and when the Agent shall have received counterparts hereof which, when taken together,
bear the signatures of each of the other parties hereto and thereafter this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Delivery of an executed signature page of the Agreement by facsimile
transmission or email shall be effective as delivery of a manually executed counterpart hereof.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of an Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments, participations in
Letters of Credit and the Loans at the time owing to it) with the prior written notice to and consent (such consent not to be unreasonably
withheld or unduly delayed) of:
(A) the Borrower (which consent shall be deemed to have been given unless the Borrower objects to such assignment
by written notice to the Agent within 10 Business Days after having received notice thereof); provided that (i) no consent of the
Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of Default
has occurred and is continuing, any other assignee and (ii) any refusal by the
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Borrower to consent to a proposed assignment to a non-bank assignee that is primarily engaged in Core Businesses and is a
competitor of the Borrower will not be deemed unreasonable;
(B) the Agent; and
(C) each Issuing Bank.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire
remaining amount of the assigning Lender’s Commitments or Loans, the amount of the Commitments or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Agent) shall not be less than $5,000,000 and shall be an integral multiple of $1,000,000 in excess
thereof unless the Borrower otherwise consents; provided that no such consent of the Borrower shall be required if an Event of
Default under clause clause (a), (b), (h) or (i) of Article VII has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights
and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500 (for which the Borrower shall not be responsible); provided that the Agent may,
in its sole discretion, elect to waive such fee in the case of any assignment; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term “ Approved Fund ” has the following meaning:
“ Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the ordinary course of its business and that is managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date
specified in each Assignment and Assumption the Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by
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such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.05). Any assignment or transfer by a Lender
of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) The Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, the
Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time
to time (the “ Register ”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent and the
Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower,
any Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an Eligible
Assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Agent shall accept such Assignment and Assumption and record the information contained therein in
the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided
in this paragraph.
(c) Any Lender may, without the consent of the Borrower or the Agent sell participations to one or more banks or other
entities (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitments and Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Agent
and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree
to any amendment, modification or waiver described in the first proviso to Section 9.08(b) that
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affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 (subject to
the requirements and limitations therein, including the requirements and obligations of the Participant under Section 2.15(f) (it being
understood that the documentation required under Sections 2.15(f) shall be delivered to the participating Lender)) to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees
to be subject to the provisions of Section 2.16 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to
receive any greater payment under Sections 2.13 or 2.15, with respect to any participation, than its participating Lender would have been
entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the
Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.16 as though it were a Lender. Each
Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it
enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or
other obligations under this Agreement (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s
interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary
to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each person whose
name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice
to the contrary. For the avoidance of doubt, the Agent (in its capacity as administrative agent) shall have no responsibility for maintaining a
Participant Register.
(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this
Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
SECTION 9.05. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Agent, in
connection with the preparation, execution, delivery and administration of this Agreement or any amendments, modifications or waivers of the
provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated),
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(ii) all reasonable out-of-pocket expenses incurred by an Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the Agent, an Issuing
Bank or any Lender, including the fees, charges and disbursements of any counsel for the Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section,
or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
negotiations associated with a workout or restructuring in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Agent, each Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities, penalties and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the preparation, execution, delivery and
administration of this Agreement, the other Loan Documents or any agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or under any other Loan Document or the consummation of the Transactions or any
other transactions contemplated hereby or thereby, (ii) any Loan, Letter of Credit or the use of the proceeds therefrom (including any refusal
by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from
any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted (i) from the gross negligence or
willful misconduct of such Indemnitee or (ii) such Indemnitee’s breach of its obligations under this Agreement or the other Loan
Documents. This Section 9.05(b) shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from
any non-Tax claim.
(c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Agent or an Issuing Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Agent or such Issuing Bank, such Lender’s pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Agent or such Issuing Bank in its capacity as such. For purposes of this Section, a Lender’s “pro rata share” shall be
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determined based upon its share of the sum of the total Credit Exposures and unused Commitments at the time.
(d) To the extent permitted by applicable law, each party hereto agrees that it shall not assert, and hereby waives, any
claim against any Person (including any Indemnitee), on any theory of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof, provided that, nothing in this
paragraph (d) shall relieve the Borrower of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or
punitive damages asserted against such Indemnitee by a third party.
(e) All amounts due under this Section shall be payable not later than 10 days after written demand therefor.
(f) No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this
Agreement or any other Loan Document or the transactions contemplated hereby or thereby, except to the extent that such damages are
determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful
misconduct of such Indemnitee.
SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate
to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, regardless of whether such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights
of setoff) which such Lender may have. Each Lender agrees to notify the Borrower and the Agent promptly after any such setoff and
application to the extent permitted by law.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Agent, any Issuing Bank or any Lender in
exercising any power or right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of the Agent and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or any other Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or
demand in similar or other circumstances. Without limiting the generality of the foregoing, the
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making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Agent or any Lender may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or
modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Agent with the consent of the Required Lenders; provided that no such agreement shall
(i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment without the written consent of each Lender affected thereby, (iv) change Section 2.12(c) or 2.16(b) in a
manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of “ Required Lenders ” or any other provision hereof or of any other Loan Document specifying
the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any
consent hereunder, without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Agent or any Issuing Bank hereunder without the prior written consent of the Agent or such Issuing Bank, as
applicable. Notwithstanding the foregoing, (1) no consent with respect to any amendment, waiver or other modification of this Agreement
or any other Loan Document shall be required of any Defaulting Lender, except with respect to any amendment, waiver or other modification
referred to in clause (i), (ii) or (iii) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be affected
by such amendment, waiver or other modification and (2) any provision of this Agreement may be amended by an agreement in writing
entered into by the Borrower and the Agent to cure any ambiguity, omission, mistake, defect or inconsistency so long as, in each case, the
Lenders shall have received at least five Business Days prior written notice thereof and the Agent shall not have received, within five
Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object
to such amendment.
SECTION 9.09. No Fiduciary Relationship. The Borrower, on behalf of itself and the Covered Subsidiaries, agrees that
in connection with all aspects of the transactions contemplated hereby and any communications in connection therewith, the Borrower, the
Covered Subsidiaries and their Affiliates, on the one hand, and the Agent, the Lenders and their Affiliates, on the other hand, will have a
business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of the Agent, the Lenders or their
Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.
The Agent, each Issuing Bank, each Lender and their affiliates, may have economic interests that conflict with those of the
Borrower. The Borrower acknowledges and agrees that (i) the transactions contemplated by this Agreement and the related documents are
arm’s-length commercial transactions between the Agent, the Issuing Banks and the Lenders, on the one hand, and the Borrower, on the other,
(ii) in connection therewith and with the process leading to such transaction the Agent, each of the Issuing Banks and each of the Lenders is
acting solely as a principal and not the agent or fiduciary of the Borrower, its management, stockholders, creditors or any other person, (iii) the
Agent, the Issuing Banks and the Lenders have not assumed an advisory or fiduciary responsibility in favor of the Borrower with respect to the
transactions contemplated hereby or the process leading thereto (irrespective of whether the Agent, any Issuing Bank, any Lender or any of
their affiliates has advised or is currently advising the Borrower on other matters) or any other obligation to the Borrower except the obligations
expressly set forth in this Agreement or the related documents and (iv) the Borrower has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Borrower further acknowledges and agrees that it is responsible for making its own independent judgment
with respect to such transactions and the process leading thereto. The Borrower agrees that it will not claim that the Agent, any Issuing Bank,
or any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Borrower, in connection with
such transaction or the process leading thereto.
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SECTION 9.10. Entire Agreement. This Agreement, the other Loan Documents and any separate letter agreements with
respect to fees constitute the entire contract among the parties relative to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.12. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction
shall not invalidate such provision in any other jurisdiction.
SECTION 9.13. Counterparts. This Agreement may be executed in two or more counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single
contract, and shall become effective as provided in Section 9.03.
SECTION 9.14. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any New York State court and of the United States District Court of the
Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be
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enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan
Documents against the Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so,
any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) The Borrower hereby irrevocably designates, appoints and empowers OMUSH (the “ Process Agent ”), with offices on
the date hereof at 200 Clarendon Street, 53 rd Floor, Boston, MA 02116, as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its property, service of any and all legal process, summons, notices and documents that
may be served in any such action or proceeding arising out of or relating to this Agreement or any other Loan Document. Such service may
be made by mailing or delivering a copy of such process to the Borrower in care of the Process Agent (or any successor thereto, as the case
may be) at such Process Agent’s above address (or the address of any successor thereto, as the case may be), and the Borrower hereby
irrevocably authorizes and directs the Process Agent (and any successor thereto) to accept such service on its behalf. If for any reason such
designee, appointee and agent shall cease to be available to act as such, the Borrower agrees to designate a new designee, appointee and
agent in New York City on the terms and for the purposes of this provision reasonably satisfactory to Agent, and further shall at all times
maintain an agent for service of process in the United States of America, so long as there shall be outstanding any Obligations. The
Borrower shall give notice to the Agent of any such appointment of successor agents for service of process, and shall obtain from each
successor agent a letter of acceptance of appointment and promptly deliver the same to the Agent.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in
Section 9.01 or, in the case of service of process against the Borrower, as specified in paragraph (c) of this Section 9.15. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.16. Confidentiality. (a) Each of the Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and agents,
including accountants, legal counsel and other advisors on a “need to know” basis (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to
the extent requested by any regulatory authority having
86
jurisdiction over such Agent or Lender, (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement, the other Loan Documents or the enforcement of rights hereunder or thereunder, (vi) subject to an
agreement containing provisions substantially the same as those of this Section, to (A) any permitted assignee of or Participant in, or any
prospective permitted assignee of or Participant in, any of its rights or obligations under this Agreement or (B) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (vii) with the consent of the
Borrower or (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach of this Section or
(B) becomes available to the Agent or any Lender on a nonconfidential basis from a source other than the Borrower. For the purposes of this
Section, “ Information ” means all information received from the Borrower or any Subsidiary relating to the Borrower or such Subsidiary or its
or their business, other than any such information that is available to the Agent or any Lender on a nonconfidential basis prior to disclosure by
the Borrower or any Subsidiary. Any Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential information. In addition, the Agent and the Lenders may disclose the
existence of this Agreement and information (other than fees) about this Agreement to market data collectors, similar service providers to the
lending industry and service providers to the Agent and the Lenders in connection with the administration of this Agreement, any other Loan
Document, and the Commitments.
(b) Each transferee shall be deemed, by accepting any assignment or participation hereunder, to have agreed to be bound
by this Section 9.16.
SECTION 9.17. Electronic Communications. The Borrower hereby agrees that, unless otherwise requested by the Agent,
it will provide to the Agent all information, documents and other materials that it is obligated to furnish to the Agent pursuant to
Section 5.01(a), (b) and (e) (the “ Communications ”) by transmitting the Communications in an electronic/soft medium (provided such
Communications contain any required signatures) in a format reasonably acceptable to the Agent to [email protected] (or such
other e-mail address as shall be designated by the Agent from time to time); provided , that any delay or failure to comply with the
requirements of this Section 9.17 shall not constitute a Default or an Event of Default hereunder, it being understood that this Section 9.17 shall
not extend the dates by which the Borrower is required to deliver to the Agent the information, documents and other materials required to be
delivered pursuant to Section 5.04(a), (b) and (e). The Borrower further agrees that the Agent may make the Communications available to the
Lenders by posting the Communications on DebtDomain or a substantially similar electronic transmission system, access to which is controlled
by the Agent (the “ Platform ”). The Platform is provided “as is” and “as available”. The Agent Parties (as defined below) do not warrant the
accuracy or completeness of the Communications or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the
Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular
purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by the Agent Parties in connection with
the Communications or the Platform. In no event shall the Agent or any of its Affiliates or any of their respective officers, directors,
employees, agents, advisors or
87
representatives (collectively, “ Agent Parties ”) have any liability to the Borrower, any Lender or any other Person or entity for damages of any
kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise)
arising out of the Borrower’s or the Agent’s transmission of Communications through the Internet, except to the extent the liability of any
Agent Party is found in a final, nonappealable judgment by a court of competent jurisdiction to have resulted primarily from the gross
negligence or wilful misconduct of, or breach of this Agreement by, such Agent Party
SECTION 9.18. USA Patriot Act. Each Lender that is subject to Section 326 of the USA PATRIOT Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act it is
required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the Borrower in accordance with the USA PATRIOT Act.
SECTION 9.19. Judgment Currency . (a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a
sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant jurisdiction the first currency could
be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due to any party hereto or any holder of any obligation owing
hereunder (the “ Applicable Creditor ”) shall, notwithstanding any judgment in a currency (the “ Judgment Currency ”) other than US Dollars
(the “ Agreement Currency ”), be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency that may be
so purchased is less than the sum originally due to the Applicable Creditor in the Agreement Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against such loss. The obligations of the Borrower
under this Section shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.
[Remainder of Page Intentionally Left Blank]
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OM ASSET MANAGEMENT PLC, as Borrower,
By
/s/ Stephen H. Belgrad
Name: Stephen H. Belgrad
Title:
Chief Financial Officer
[Signature Page to the Revolving Credit Agreement]
CITIBANK, N.A., individually, and in its capacity as Agent and an
Issuing Bank,
By
/s/ Maureen Maroney
Name: Maureen Maroney
Title:
Vice President
[Signature Page to the Revolving Credit Agreement]
BANK OF AMERICA, N.A.
By:
/s/ Matthew C. White
Name: Matthew C. White
Title:
Vice President
[Signature Page to the Revolving Credit Agreement]
CREDIT SUISSE AG, LONDON BRANCH
By:
/s/ Garrett Lynskey
Name: Garrett Lynskey
Title:
Authorized Signatory
By:
/s/ Brian Fitzgerald
Name: Brian Fitzgerald
Title:
Authorized Signatory
[Signature Page to the Revolving Credit Agreement]
MORGAN STANLEY BANK, N.A.
By:
/s/ Michael King
Name: Michael King
Title:
Authorized Signatory
[Signature Page to the Revolving Credit Agreement]
ROYAL BANK OF CANADA
By:
/s/ Philip Ball
Name: Philip Ball
Title:
Managing Director
[Signature Page to the Revolving Credit Agreement]
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
/s/ Tracy Moosbrugger
Name: Tracy Moosbrugger
Title:
Managing Director
[Signature Page to the Revolving Credit Agreement]
THE BANK OF NEW YORK MELLON
By:
/s/ Adim Offurum
Name: Adim Offurum
Title:
Vice President
[Signature Page to the Revolving Credit Agreement]
Exhibit 99.1
OMAM ANNOUNCES CLOSING OF
INITIAL PUBLIC OFFERING
LONDON, October 15, 2014 — OM Asset Management plc (OMAM) today announces the closing of the initial public offering of 22,000,000
of its ordinary shares at a price to the public of $14.00 per share. Shares of OMAM began trading on the New York Stock Exchange on
October 9 under the ticker symbol “OMAM”.
The underwriters have an option, exercisable through November 7, 2014, to purchase up to an additional 3,300,000 shares from Old Mutual plc
at the initial public offering price, less the underwriting discount, to cover over-allotments, if any.
BofA Merrill Lynch, Morgan Stanley, Citigroup and Credit Suisse acted as joint bookrunning managers for the offering.
The prospectus relating to the offering may be obtained from: BofA Merrill Lynch, Attention: Prospectus Department, 222 Broadway, New
York, NY 10038, email: [email protected] or Morgan Stanley & Co. LLC, Attention: Prospectus Department, 180 Varick
Street, Second Floor, New York, NY 10014 or Citigroup, c/o Broadridge Financial Solutions, 1155 Long Island Avenue, Edgewood, NY
11717 or Credit Suisse Securities (USA) LLC, Attention: Credit Suisse Prospectus Department, One Madison Avenue, New York, NY 10010,
e-mail: [email protected]. The prospectus may also be obtained for free by visiting the Securities and Exchange
Commission’s website at http://www.sec.gov.
This news release shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any
state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws
of any such state or jurisdiction.
OMAM is a global, multi-boutique asset management company with approximately $221 billion of assets under management as of August 31,
2014 through a diverse portfolio of asset managers that serve institutional investors around the world. Its business model combines the
investment, talent, entrepreneurialism, focus and creativity of leading asset management boutiques with the resources and capabilities of a
larger firm.
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Contact:
Bruce Dunbar, Finsbury
Tel: +1 646.805.2070