Exhibit 10.2
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
