agreements amending such agreements, including the AuM Amendment Agreements (together, the “ Amendments ”); and

 

WHEREAS, for U.S. federal income tax purposes, the parties intend that the JV Interest Exchange be treated as a taxable exchange in which gain or loss is recognized.

 

NOW, THEREFORE, the parties, in consideration of their mutual promises and intending to be legally bound, agree as follows:

 

ARTICLE I.
DEFINITIONS AND USAGE

 

Section 1.1.            Definitions.  For purposes of this Agreement, the following terms and variations thereof have the meanings specified or referred to in this Section 1.1 :

 

“ Acquirors ” — as defined in the caption to this Agreement.

 

“ Adjusted Number of Shares ” — as defined in Section 2.1(a) .

 

“ Affiliate ” — means , with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; provided , that, for purposes of this Agreement no UniCredit Party nor any of their respective controlled affiliates shall be deemed to be Affiliates of Ramius and none of Ramius or any of its Subsidiaries shall be deemed to be Affiliates of any UniCredit Party.

 

“ Agreement ” — as defined in the caption to this Agreement.

 

“ Amendments ” — as defined in the Recitals, such term to include the Ramius Security Agreement (as defined therein).

 

“ Ancillary Agreements ” — means the Amendments, the Assignment, the Fourth Amended and Restated Ramius LLC Agreement, the Joinder Agreement, the Registration Rights Agreement and, to the extent applicable, the JV Note and the JV Note Security Agreement.

 

“ Assignment ” — as defined in Section 2.3(a)(i) .

 

“ AuM Amendment Agreements ” — means that certain Second Amendment to the Investment Reporting Agreement by and between HVB AG and Ramius HVB Partners, LLC and that certain Amendment to the Amended and Restated Investment Management Agreement by and between Bank Austria Cayman Islands Limited and Ramius, each dated as of the date hereof.

 

“ Base Number of Shares ” — as defined in Section 2.1(a) .

 

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“ BHC Act ” — the Bank Holding Company Act of 1956, as amended.

 

“ Breach ” — any breach of, or any inaccuracy in, any representation or warranty or any breach of, or failure to perform or comply with, any covenant or obligation, in or of this Agreement or any other Contract, or any event which with the passing of time or the giving of notice, or both, would constitute such a breach, inaccuracy or failure.

 

“ Change of Control ” — the occurrence of any merger, consolidation, tender offer, or any other transaction resulting in the stockholders of New Parent immediately before such transaction owning less than a majority of the aggregate voting power of the resultant entity or any sale of all or substantially all of the assets of New Parent;

 

“ Class A Common Stock ” — as defined in the Recitals.

 

“ Class B Common Stock ” — means Class B Common Stock, par value $0.01 per share, of New Parent.

 

“ Closing ” — as defined in Section 2.2 .

 

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

“ Common Stock ” — means the Common Stock of New Parent.

 

“ Common Stock Consideration ” — as defined in Section 2.1(a) .

 

“ Contract ” — any contract, lease or other agreement (whether written or oral).

 

“ Cowen ” — as defined in the caption to this Agreement.

 

“ Debt Consideration ” — as defined in Section 2.1(a) .

 

“ Encumbrance ” — any lien, option, pledge, security interest, mortgage, right of way, easement, encroachment, servitude, right of first option, right of first refusal or similar restriction; provided that, in respect of the JV Interest, such term shall not include restrictions pursuant to the JV LLC Agreement or state or federal securities laws, and in respect of the Exchange Consideration, such term shall not include restrictions pursuant to federal or state securities laws.

 

“ Exchange Act ” — means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the SEC.

 

“ Exchange Consideration ” — as defined in the Recitals.

 

“ Governing Documents ” — with respect to any particular entity, (a) if a corporation, the articles or certificate of incorporation and the bylaws; (b) if a general partnership, the partnership agreement and any statement of partnership; (c) if a limited partnership,  the limited partnership agreement and the certificate of limited partnership; (d) if a limited liability company, the certificate of formation and operating agreement; (e) if another

 

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type of Person, any other charter or similar document adopted or filed in connection with the creation, formation or organization of the Person; (f) all equityholders’ agreements, voting agreements, voting trust agreements or other similar agreements or documents relating to the organization, management or operation of any Person; and (g) any amendment or supplement to any of the foregoing.

 

“ Governmental Authorization ” — any consent, license, registration or permit issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Law.

 

“ Governmental Body ” — any international, federal, state, local, municipal, foreign or other governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court, tribunal or other entity exercising governmental or quasi-governmental powers) or exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power.

 

“ HVB AG ” — as defined in the caption to this Agreement.

 

“ HVB Solicitation Agreement ” — means that certain Solicitation Agreement, dated as of December 31, 2004, by and between Ramius HVB Partners, LLC and HVB AG.

 

“ Insider Trading Policy ” — means that certain Insider Trading Policy of New Parent attached as Exhibit B hereto.

 

“ Joinder Agreement ” — the Joinder Agreement to the JV LLC Agreement in the form of Exhibit A hereto.

 

“ JV ” — as defined in the Recitals.

 

“ JV Acquiror ” — as defined in the caption to this Agreement.

 

“ JV Funds ” — means investment funds managed by the JV or its Subsidiaries.

 

“ JV Interest ” — as defined in the Recitals.

 

“ JV Interest Exchange ” — as defined in the Recitals.

 

“ JV Investment Management Agreement ” — means the Investment Reporting Agreement, dated as of July 29, 2005 between the JV and HVB AG, as thereafter amended (including the date hereof).

 

“ JV LLC Agreement ” — as defined in the Recitals.

 

“ JV Note ” — means the promissory note, in a principal amount equal to the JV Principal Amount, in the form attached as Exhibit C hereto.

 

“ JV Note Security Agreement ” — means the security agreement in a form substantially identical to the Security Agreement attached to the Secured Revolving Credit

 

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Agreement dated as of June 3, 2009, by and among Ramius, as borrower, and Bayerische Hypo-und Vereinsbank AG, New York Branch as administrative agent, issuing bank and lender, to be executed and delivered at Closing pursuant to the JV Note if the New Parent Revolver Execution does not occur.

 

“ JV Principal Amount ” — means $10,370,032, as such amount shall be adjusted if required pursuant to Section 2.1(b).

 

“ JV Secured Revolving Loan Agreements ” — means those agreements listed on Schedule 1.1-A hereto.

 

“ Law ” — means any foreign, federal, state, or local law, statute, code, ordinance, rule, regulation or other requirement.

 

“ Lender ” — means Bayerische Hypo -un Vereinsbank AG, New York Branch.

 

“ Liability ” — with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.

 

“ Lock-up Termination Event ” — means any of the following: (a) a material breach by Ramius of any of the following agreements: the Ramius Revolving Credit Agreement (or any replacement facility provided by the Lender), the JV Secured Revolving Credit Agreement, this Agreement, the Investment Reporting Agreement by and between HVB AG and Ramius HVB Partners, LLC, as amended, the Ramius Investment Management Agreement, as amended, the JV Investment Management Agreement, as amended, the Fourth Amended and Restated Ramius LLC Agreement and, in each case if applicable, the JV Note and the New Parent Revolver, which breach has remained uncured for a period of 10 days after receipt by Ramius of written notice of such breach; (b) unless the UniCredit Parties and their Affiliates beneficially own, in the aggregate, less than 4.9% of the outstanding Common Stock throughout any consecutive ninety (90) day period, the failure of the Managing Member to vote all of the shares of Class A Common Stock held by Ramius in favor of the election to the board of directors of New Parent of the Board Designee; (c) if the Managing Member ceases to be controlled by at least two of Peter A. Cohen, Morgan B. Stark, Thomas W. Strauss and Jeffrey Solomon; or (d) a Change of Control.

 

“ Managing Member ” — as defined in the Ramius LLC Agreement.

 

“ Material Adverse Effect ” — means with respect to Ramius or Transferor, as the case may be, any event, change, circumstance or development which has or is reasonably likely to have a material adverse effect on (i) the financial condition, results of operations or business of such party and its Subsidiaries taken as a whole; provided , however , that, with respect to clause (i), the term “Material Adverse Effect” shall not include any effects resulting from (A) changes, after the date hereof, in GAAP or regulatory accounting requirements applicable generally to companies in the industries in which such party and its Subsidiaries operate,

 

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(B) changes, after the date hereof, in laws, rules, regulations or the interpretation of laws, rules or regulations by Governmental Bodies of general applicability to companies in the industries in which such party and its Subsidiaries operate, (C) actions or omissions taken with the prior written consent of the other party or expressly required by this Agreement, (D) changes in global, national or regional political conditions (including acts of terrorism or war) or general business, economic or market conditions, including changes generally in prevailing interest rates, currency exchange rates, credit markets and price levels or trading volumes in the United States or foreign securities markets, in each case generally affecting the industries in which such party or its Subsidiaries operate and including changes to any previously correctly applied asset marks resulting therefrom, (E) the execution of this Agreement or the public disclosure of this Agreement or the transactions contemplated hereby, including losses of employees to the extent resulting therefrom, (F) failure, in and of itself, to meet earnings projections, but not including any underlying causes thereof, (G) changes in the trading price of a party’s common stock, in and of itself, but not including any underlying causes or (H) in the case of Ramius and its Subsidiaries, withdrawals from the Funds that are consistent with withdrawals from the Funds over the past twelve months, except, with respect to clauses (A), (B) and (D), to the extent that the effects of such change are materially and disproportionately adverse to the financial condition, results of operations or business of such party and its Subsidiaries, taken as a whole, as compared to other companies in the industry in which such party and its Subsidiaries operate or (ii) the ability of such party to timely consummate the transactions contemplated by this Agreement.

 

“ New Parent ” — as defined in the caption to this Agreement.

 

“ New Parent Parties ” — as defined in the caption to this Agreement.

 

“ New Parent Revolver ” — means the $25,000,000 secured revolving credit facility that may be entered into by the Lender and New Parent on or immediately prior to the Closing.

 

“ New Parent Revolver Execution ” — as defined in Section 2.1(a).

 

“ Order ” — any order, injunction, judgment, decree, ruling, assessment or arbitration award of any Governmental Body or arbitrator.

 

“ Ordinary Course of Business ” — means, with respect to any Person, the ordinary and usual course of business of such Person consistent with its past practice through the date hereof.

 

“ Person ” — any individual, partnership, limited liability company, joint venture, corporation, trust, government (or agencies or political subdivisions thereof) and other association or entity.

 

“ Ramius ” — as defined in the caption to this Agreement.

 

“ Ramius Asset Exchange ” — as defined in the Recitals.

 

“ Ramius Funds ” — means investment funds managed by Ramius or its Subsidiaries.

 

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“ Ramius Investment Management Agreement ” — means the Amended and Restated Investment Management Agreement, dated as of June 3, 2003, between Ramius (f/k/a Ramius Capital Group, LLC) and Bank Austria Cayman Islands Limited, as hereafter amended (including on the date hereof).

 

“ Ramius LLC Agreement ” — means the Third Amended and Restated Limited Liability Company Agreement of Ramius, dated as of January 1, 2007.

 

“ Ramius Parties ” — as defined in the Recitals.

 

“ Ramius Revolving Credit Agreement ” — means the Revolving Loan Agreement, dated as of June 3, 2003, by and between Ramius (f/k/a Ramius Capital Group, LLC) and BA Alpine Holdings, Inc., as thereafter amended (including on the date hereof).

 

“ Registration Rights Agreement ” — means the Registration Rights Agreement in the form of Exhibit D hereto.

 

 “ SEC ” — means the United States Securities and Exchange Commission.

 

“ Securities Act ” — the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“ Subsidiary ” — with respect to any Person (the “ Owner ”), any corporation or other Person of which securities or other interests having the power to elect a majority of that corporation’s or other Person’s board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than securities or other interests having such power only upon the happening of a contingency that has not occurred), are held by the Owner or one or more of its Subsidiaries; provided that none of the JV Funds or Ramius Funds shall be deemed to be a Subsidiary of Ramius or the JV.

 

“ Third Party Investors ” — as defined in Section 8.1.

 

“ Transaction Agreement ” — as defined in the Recitals.

 

“ Transferor ” — as defined in the caption to this Agreement.

 

“ UniCredit ” — as defined in the Recitals.

 

“ UniCredit Consent ” — means the Consent, dated the date hereof, of UniCredit and certain of its Affiliates.

 

“ UniCredit Parties ” — as defined in the Recitals.

 

Section 1.2.            Usage.

 

(a)            Interpretation .  In this Agreement, unless a clear contrary intention appears:

 

(i)             the singular number includes the plural number and vice versa;

 

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(ii)            reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually;

 

(iii)           reference to any gender includes each other gender;

 

(iv)           reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof;

 

(v)            reference to any Law means such Law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder, and reference to any section or other provision of any Law means that provision of such Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement or reenactment of such section or other provision;

 

(vi)           “ hereunder ,” “ hereof ,” “ hereto ,”  and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof;

 

(vii)          “ including ” (and with correlative meaning “ include ”) means including without limiting the generality of any description preceding such term;

 

(viii)         with respect to the determination of any period of time, “ from ” means “ from and including ” and “ to ” means “ to but excluding ”; and

 

(ix)            references to documents, instruments or agreements shall be deemed to refer as well to all addenda, Exhibits, schedules or amendments thereto.

 

(b)            Legal Representation of the Parties .  This Agreement was negotiated by the parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to any construction or interpretation hereof.

 

ARTICLE II.
JV INTEREST EXCHANGE; CLOSING

 

Section 2.1.            JV Interest Exchange; Closing; Exchange Consideration .

 

(a)            Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Transferor shall transfer, convey, assign, and deliver to JV Acquiror the JV Interest, free and clear of all Encumbrances, and New Parent shall, and Ramius and Cowen shall cause New Parent, on behalf of JV Acquiror, to issue and deliver to Transferor, or its designee in accordance with Section 11.8, (i) good valid title to 2,713,882 shares (the “ Base Number of Shares ”) of Class A Common Stock (subject to adjustment as provided below), free and clear of

 

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all Encumbrances (other than pursuant to this Agreement) (the “ Common Stock Consideration ”), and (ii) the JV Note and the JV Note Security Agreement, provided, however, that if the New Parent Revolver has been entered into by New Parent and the Lender on or immediately prior to the Closing (the “ New Parent Revolver Execution ”), then New Parent shall not execute and deliver the JV Note and the JV Note Security Agreement, but shall instead borrow under the New Parent Revolver an amount equal to the JV Principal Amount and shall deliver to Transferor the JV Principal Amount in cash, by wire transfer of immediately available funds (the “ Debt Consideration ” and, together with the Common Stock Consideration, the “ Exchange Consideration ”).

 

(b)            In the event that the Base Number of Shares would exceed 4.9% of the issued and outstanding shares of Class A Common Stock immediately following the consummation of the transactions contemplated by the Transaction Agreement and the JV Interest Exchange, (i) the number of shares that constitute the Common Stock Consideration shall be adjusted downward so that the Transferor receives a number of shares of Class A Common Stock equal to 4.9% of the issued and outstanding shares of Class A Common Stock (the “ Adjusted Number of Shares ”) and (ii) the JV Principal Amount shall be increased by an amount equal to the product of (x) $8.6555 and (y) the excess of (I) the Base Number of Shares over (II) the Adjusted Number of Shares.

 

Section 2.2.            Closing.   Subject to the conditions set forth in this Agreement, the consummation of the transactions provided for in this Agreement (the “ Closing ”) shall be held at the time of the closing under the Transaction Agreement at the offices of Willkie Farr & Gallagher, 787 Seventh Avenue, New York, New York 10019, or at such other place as the closing under the Transaction Agreement is to occur or as the parties hereto shall otherwise agree in writing.  Ramius shall provide notice to Transferor of the date of the closing under the Transaction Agreement at least three business days in advance.  At the Closing, all of the transactions provided for in this Article II shall be consummated on a substantially concurrent basis, effective immediately following the consummation of the Ramius Asset Exchange.

 

Section 2.3.            Closing Obligations.   In addition to any other documents to be delivered under other provisions of this Agreement, at the Closing:

 

(a)            Transferor shall deliver:

 

(i)             To JV Acquiror, an assignment (the “ Assignment ”) of all of the JV Interest in the form of Exhibit E hereto, executed by Transferor;

 

(ii)            the Registration Rights Agreement executed, in respect of the Exchange Consideration, by the UniCredit Parties that are members of Ramius as of the Closing and Transferor; and

 

(iii)           if the New Parent Revolver Execution has not occurred, an executed counterpart to the JV Note, executed by the UniCredit Parties thereto.

 

(b)            New Parent shall, and Ramius, Cowen and JV Acquiror shall cause New Parent to, deliver to Transferor:

 

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(i)                                      Duly executed and validly issued stock certificates in the name of Transferor representing the Common Stock Consideration;

 

(ii)                                   on behalf of JV Acquiror, evidence that the shares of Class A Common Stock included in the Exchange Consideration have been authorized for listing on the NASDAQ;

 

(iii)                                (x) if the New Parent Revolver Execution has not occurred, the JV Note and the JV Note Security Agreement, each executed by New Parent and any Subsidiaries party thereto or (y) if the New Parent Revolver Execution has occurred, the JV Principal Amount in cash; and

 

(iv)                               the Registration Rights Agreement executed by New Parent.

 

(c)                                   Ramius shall deliver to New Parent and Transferor the Registration Rights Agreement executed by Ramius.

 

(d)                                  JV Acquiror shall deliver to Park Exchange LLC:

 

(i)                                      the Joinder Agreement executed by Acquiror.

 

ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF TRANSFEROR

 

Transferor represents and warrants to the other parties hereto, both as of the date hereof and as of the Closing, as follows:

 

Section 3.1.                                 Organization and Good Standing.  Each of the UniCredit Parties is a entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full corporate power and authority to conduct its business as it is now being conducted and to own or use the properties and assets that it purports to own or use.

 

Section 3.2.                                 Enforceability; Authority; No Conflict.

 

(a)                                   This Agreement and the Amendments constitute the legal, valid and binding obligations of the UniCredit Parties that are parties thereto, enforceable against each of them in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity (whether considered in a proceeding at law or in equity).  Upon the execution and delivery by the applicable UniCredit Parties of the other Ancillary Agreements to which it is a party, each of such agreements so executed thereby will constitute the legal, valid and binding obligation of such UniCredit Party, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer or similar laws affecting the enforcement of creditors’ rights generally and general principles of equity (whether considered in a proceeding at law or in equity).  Each of the UniCredit Parties has the requisite right, power and authority to execute and deliver this Agreement and the

 

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Ancillary Agreements executed (or to be executed thereby) to which it is a party, and to perform its obligations under this Agreement and such Ancillary Agreements, and such action has been duly authorized by all necessary corporate or limited liability company action.

 

(b)                                  Neither the execution and delivery of this Agreement or the applicable Ancillary Agreements by the UniCredit Parties nor the consummation or performance of any of this Agreement or such Ancillary Agreements by any of them will,