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Exhibit
10.35
NON-COMPETITION
AGREEMENT
THIS NON–COMPETITION
AGREEMENT, is made and effective as of April 28, 2005 (this
“ Agreement ”), by and among Cohen Brothers,
LLC, a Delaware limited liability company (“ Cohen
Bros .”), in favor of Taberna Capital Management, LLC, a
Delaware limited liability company (“ Taberna Capital
”).
WHEREAS, Cohen Bros. will
transfer its interests in Taberna Capital pursuant to that certain
Agreement and Plan of Merger by and among Taberna Realty Finance
Trust (the “ Trust ”), TCM Merger Sub, LLC and
Taberna Capital (the “Merger Agreement ”);
and
WHEREAS, Cohen Bros. and the
Trust have expressly stated that it is a condition of the closing
of the transactions contemplated by the Merger Agreement that Cohen
Bros. and Taberna Capital deliver this Agreement.
NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be
legally bound, agree, as follows:
1. DEFINITIONS
.
(a) “ Affiliate
” means any Person directly or indirectly controlled by, or
under direct or indirect common control with, Cohen
Bros.
(b) “ Business
” means (1) purchasing from, or acting as placement
agent for, the issuer of trust preferred securities or other
preferred equity securities issued by REITs and real estate
operating companies and (2) acting as the collateral manager
of collateral debt obligation transactions or other securitizations
involving securities of the type contemplated by clause
(1).
(c) “ Change of
Control ” means the occurrence of one or more of the
following: (a) any sale, lease, exchange or other transfer (in
one transaction or a series of transactions) of all or
substantially all of Taberna Capital’s, or its direct or
indirect parent company’s assets; (b) the approval by
Taberna Capital’s, or its direct or indirect parent
company’s equity owners of any plan or proposal for Taberna
Capital’s, or its direct or indirect parent company’s
liquidation or dissolution; (c) any Person shall become the
owner, directly or indirectly, beneficially or of record, of equity
shares representing more than 50% of Taberna Capital’s
aggregate ordinary voting power; and (d) the replacement of a
majority of Taberna Capital’s, or its direct or indirect
parent company’s board of directors or trustees over a
two-year period from the directors or trustees who constituted the
board of directors or trustees at the beginning of such period,
that is not approved by a majority of the board of directors or
trustees; provided that the consummation of the transactions
contemplated by the Merger Agreement shall not constitute a Change
of Control.
(d) “ Officer
” means any officer of the Trust who, on the date hereof or
at any time during the Term, holds any of the following titles or
positions: (1) President; (2) Chief Executive Officer;
(3) Chief Financial Officer; (4) Chief Investment
Officer; (5) Executive Vice President, or (6) any other
executive officer of the Trust.
(e) “ Person
” means any individual, corporation, association,
partnership, limited liability company, joint venture,
unincorporated organization, trust, trustee, executor,
administrator or other legal representative, governmental entity,
or other entity or organization.
(f) “
Subsidiaries ” means, when used with reference to any
party hereto, any corporation, partnership, limited liability
company, or other entity, a majority of the outstanding voting
power of which is owned directly or indirectly by such party or, in
the case of Cohen Bros. only, of which Cohen Bros. or one of its
Subsidiaries is the sole managing member or sole general
partner.
(g) “ Term
” has the meaning assigned to it in
Section 9.
2. NON-COMPETITION AND
NON-SOLICITATION .
(a) Except as otherwise
agreed, for the Term of this Agreement, none of (i) Cohen
Bros., (ii) any Subsidiary of Cohen Bros., or (iii) any
successor or assign of Cohen Bros., or its Subsidiaries, shall
engage in the Business, provided, however, that nothing contained
herein shall prohibit Cohen Bros. from (A) owning, directly or
indirectly, less than 5% of any class of voting securities of any
company engaged in any of the Business, unless such company would
become a Subsidiary of Cohen Bros. as a result of the acquisition
of such voting securities or (B) directly or indirectly
acquiring a business which as a component of its business, is
engaged in any of the Business provided, however, that Cohen Bros.
disposes of such competitive business within one year o
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