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UNITED STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 13D
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Under the Securities Exchange Act
of 1934
(Amendment No. )*
(Name of Issuer)
Class
A Common Stock, Par Value $.01
(Title of Class of
Securities)
(CUSIP Number)
David
K. Boston, Esq.
Laura
L. Delanoy, Esq.
Willkie
Farr & Gallagher LLP
787
Seventh Avenue
New
York, NY 10019
(212)
728-8000
(Name, Address and
Telephone Number of Person
Authorized to Receive Notices and Communications)
(Date of Event Which
Requires Filing of this Statement)
If the filing person has previously filed a statement
on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of Section 240.13d-1(e), 240.13d-1(f)
or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be
filled out for a reporting person's initial filing on this form with respect to
the subject class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this
cover page shall not be deemed to be "filed" for the purpose of
Section 18 of the Securities Exchange Act of 1934 ("Act") or
otherwise subject to the liabilities of that section of the Act but shall be
subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 223622 101
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1
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Name of Reporting Person
RCG Holdings LLC
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2
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Check the Appropriate Box
if a Member of a Group
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(a)
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x
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(b)
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o
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3
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SEC Use Only
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4
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Source of Funds
OO
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5
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
37,536,826
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8
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Shared Voting Power
0
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9
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Sole Dispositive Power
37,536,826
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10
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Shared Dispositive Power
0
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11
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Aggregate Amount
Beneficially Owned by Each Reporting Person
37,536,826
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12
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares o
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13
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Percent of Class
Represented by Amount in Row (11)
67.9%
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14
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Type of Reporting Person
OO
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2
CUSIP No. 223622 101
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1.
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Name of Reporting Person
C4S & CO., L.L.C.
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2
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Check the Appropriate Box
if a Member of a Group
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(a)
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x
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(b)
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o
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3
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SEC Use Only
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4
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Source of Funds
OO
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5
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6
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Citizenship or Place of Organization
Delaware
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
37,536,826
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8
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Shared Voting Power
0
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9
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Sole Dispositive Power
37,536,826
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10
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Shared Dispositive Power
0
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11
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Aggregate Amount
Beneficially Owned by Each Reporting Person
37,536,826
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12
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares o
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13
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Percent of Class
Represented by Amount in Row (11)
67.9%
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14
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Type of Reporting Person
OO
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3
CUSIP No. 223622 101
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1.
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Name of Reporting Person
PETER A. COHEN
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2
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Check the Appropriate Box
if a Member of a Group
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(a)
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x
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(b)
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o
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3
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SEC Use Only
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4
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Source of Funds
OO
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5
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6
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Citizenship or Place of Organization
USA
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
0
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8
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Shared Voting Power 37,536,826
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9
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Sole Dispositive Power
0
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10
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Shared Dispositive Power 37,536,826
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11
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Aggregate Amount
Beneficially Owned by Each Reporting Person
37,536,826
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12
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares o
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13
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Percent of Class
Represented by Amount in Row (11)
67.9%
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14
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Type of Reporting Person
IN
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4
CUSIP No. 223622 101
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1.
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Name of Reporting Person
MORGAN B. STARK
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2
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Check the Appropriate Box
if a Member of a Group
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(a)
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x
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(b)
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o
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3
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SEC Use Only
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4
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Source of Funds
OO
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5
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6
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Citizenship or Place of Organization
USA
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
0
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8
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Shared Voting Power 37,536,826
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9
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Sole Dispositive Power
0
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10
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Shared Dispositive Power 37,536,826
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11
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Aggregate Amount
Beneficially Owned by Each Reporting Person
37,536,826
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12
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares o
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13
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Percent of Class
Represented by Amount in Row (11)
67.9%
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14
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Type of Reporting Person
IN
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5
CUSIP No. 223622 101
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1.
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Name of Reporting Person
JEFFREY M. SOLOMON
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2
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Check the Appropriate Box
if a Member of a Group
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(a)
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x
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(b)
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o
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3
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SEC Use Only
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4
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Source of Funds
OO
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5
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6
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Citizenship or Place of Organization
USA
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
0
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8
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Shared Voting Power 37,536,826
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9
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Sole Dispositive Power
0
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10
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Shared Dispositive Power 37,536,826
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11
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Aggregate Amount
Beneficially Owned by Each Reporting Person
37,536,826
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12
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares o
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13
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Percent of Class
Represented by Amount in Row (11)
67.9%
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14
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Type of Reporting Person
IN
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6
CUSIP No. 223622 101
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1.
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Name of Reporting Person
THOMAS W. STRAUSS
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2
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Check the Appropriate Box
if a Member of a Group
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(a)
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x
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(b)
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o
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3
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SEC Use Only
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4
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Source of Funds
OO
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5
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Check if Disclosure of Legal Proceedings Is
Required Pursuant to Items 2(d) or 2(e)
o
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6
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Citizenship or Place of Organization
USA
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Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With
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7
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Sole Voting Power
0
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8
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Shared Voting Power 37,536,826
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9
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Sole Dispositive Power
0
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10
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Shared Dispositive Power 37,536,826
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11
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Aggregate Amount
Beneficially Owned by Each Reporting Person
37,536,826
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12
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Check if the Aggregate
Amount in Row (11) Excludes Certain Shares o
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13
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Percent of Class
Represented by Amount in Row (11)
67.9%
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14
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Type of Reporting Person
IN
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7
Item
1. Security and Issuer
This statement on Schedule 13D relates to the Class A
Common Stock, par value $.01 per share (the Shares), of Cowen Group, Inc.,
a Delaware corporation (the Issuer). The principal executive offices of the
Issuer are located at 599 Lexington Avenue, 20th Floor, New
York, New York 10022.
Item
2. Identity and Background
(a) This
statement is filed by:
(i) RCG Holdings LLC, a Delaware limited
liability company (RCG);
(ii) C4S & Co., L.L.C., a Delaware
limited liability company (C4S), which serves as managing member of RCG;
(iii) Peter A. Cohen, who serves as one of the
managing members of C4S;
(iv) Morgan B. Stark, who serves as one of the
managing members of C4S;
(v) Thomas W. Strauss, who serves as one of the
managing members of C4S; and
(vi) Jeffrey M. Solomon, who serves as one of
the managing members of C4S.
Each
of the foregoing is referred to as a Reporting Person and collectively as the
Reporting Persons. Each of the Reporting Persons is party to that certain
Joint Filing Agreement, as further described in Item 6. Accordingly, the Reporting Persons are hereby
filing a joint Schedule 13D.
(b)
The address of the principal office of each of RCG, C4S, and Messrs. Cohen,
Stark, Strauss and Solomon is 599 Lexington Avenue, 20th Floor, New York, New
York 10022.
(c)
RCG is a holding company which holds shares of common stock of the Issuer on
behalf of its members. C4S serves as
managing member of RCG. Messrs. Cohen,
Strauss, Stark and Solomon serve as co-managing members of C4S.
(d)
No Reporting Person has, during the last five years, been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
(e)
No Reporting Person has, during the last five years, been party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as a result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
(f)
Messrs. Cohen, Stark, Strauss, and Solomon are citizens of the United
States of America.
Item
3. Source and Amount of Funds or Other Consideration
On
November 2, 2009, the transactions (the Transactions) contemplated by
the Transaction Agreement and Agreement and Plan of Merger, dated as of June 3,
2009 (the Transaction Agreement), by and among the Issuer, Cowen Holdings, Inc.
(f/k/a Cowen Group, Inc.) (Cowen Holdings), Lexington
8
Merger
Corp. (Merger Sub), Ramius LLC (f/k/a Park Exchange LLC) (Ramius) and RCG,
were consummated. Upon the closing of
the Transactions, Merger Sub merged with and into Cowen Holdings, with Cowen
Holdings being the surviving corporation and becoming a wholly owned subsidiary
of the Issuer; and Ramius, a wholly owned subsidiary of the Issuer, acquired
substantially all of the assets and assumed substantially all of the
liabilities of RCG. At the closing of
the Transactions, 37,536,826 shares of the Issuers Class A Common Stock
were issued to RCG (such shares, the Reported Shares). The Issuer is the parent of both Cowen
Holdings and Ramius following the consummation of the Transactions.
References
to and descriptions of the Transaction Agreement set forth above in this Item 3
are not intended to be complete and are qualified in their entirety by
reference to the full text of the Transaction Agreement, a copy of which is
attached hereto as Exhibit 99.2.
Item
4. Purpose of Transaction
The information set forth or incorporated by
reference in Items 3 and 6 is hereby incorporated by reference herein. RCG acquired beneficial ownership of the
Reported Shares upon consummation of the Transactions. As a result of C4S serving as the managing
member of RCG, and Messrs. Cohen, Solomon, Stark and Strauss serving as
managing members of C4S, each of the Reporting Persons may be deemed to have
acquired beneficial ownership of the Reported Shares for purposes of Rule 13d-3
promulgated under the Act (Rule 13d-3).
RCG appointed six of the members of the board of directors of the Issuer
pursuant to the Transaction Agreement as of the closing of the
Transactions. The Reported Shares represent
substantially all of RCGs assets. The
Reported Shares have been allocated to different members of RCG, including Messrs. Cohen
(2,997,813 allocated Shares), Solomon (587,881 allocated Shares), Stark
(2,435,132 allocated Shares, including Shares allocated to Mr. Starks
wife) and Strauss (2,874,001 allocated Shares, including Shares allocated to an
entity controlled by Mr. Strauss).
The ability of the members to withdraw capital from RCG are limited by
certain restrictions, as described in Item 6 below.
No
Reporting Person has any present plan or proposal which would relate to or
result in any of the matters set forth in subparagraphs (a) - (j) of
Item 4 of Schedule 13D except as set forth herein or such as would occur upon
completion of any of the actions discussed herein. The Reporting Persons intend to review their
investment in the Issuer on a continuing basis.
Depending on various factors including, without limitation, withdrawals
of capital from RCG by its members, the Issuers financial position and investment
strategy, the price levels of the Shares, conditions in the securities markets
and general economic and industry conditions, the Reporting Persons may in the
future take such actions with respect to their investment in the Issuer as they
deem appropriate including, without limitation, selling some or all of their
Shares or purchasing additional Shares.
Item
5. Interest in Securities of the Issuer
The aggregate percentage of
Shares reported owned by each person named herein is based upon 55,292,998
Shares outstanding as of November 2, 2009.
A. RCG
(a) RCG is the
beneficial owner for purposes of Rule 13d-3 of 37,536,826 Shares, which it
owns directly.
Percentage: Approximately
67.9%.
(b) 1. Sole power to
vote or direct vote: 37,536,826
9
2. Shared power to vote or
direct vote: 0
3. Sole power to dispose or
direct the disposition: 37,536,826
4. Shared power to dispose
or direct the disposition: 0
(c) Other than the
acquisition of the Reported Shares by RCG upon the consummation of the
Transactions, RCG did not enter into any transactions in the Shares in the past
60 days. The Reported Shares held by RCG
have been allocated to the members of RCG, including Messrs. Cohen, Stark,
Strauss and Solomon.
B. C4S
(a) C4S, as the
managing member of RCG, may be deemed the beneficial owner for purposes of Rule 13d-3
of the 37,536,826 Shares owned by RCG.
Percentage: Approximately
67.9%.
(b) 1. Sole power to
vote or direct vote: 37,536,826
2. Shared power to vote or
direct vote: 0
3. Sole power to dispose or
direct the disposition: 37,536,826
4. Shared power to dispose
or direct the disposition: 0
(c) Other than the
acquisition of the Reported Shares by RCG upon the consummation of the
Transactions, C4S did not enter into any transactions in the Shares in the past
60 days. The Reported Shares held by RCG
have been allocated to the members of RCG, including Messrs. Cohen, Stark,
Strauss and Solomon.
C. Messrs. Cohen,
Stark, Strauss and Solomon
(a) Each of Messrs. Cohen,
Stark, Strauss and Solomon, as a managing member of C4S, may be deemed the
beneficial owner for purposes of Rule 13d-3 of the 37,536,826 Shares owned
by RCG.
Percentage: Approximately
67.9%.
(b) 1. Sole power to
vote or direct vote: 0
2. Shared power to vote or
direct vote: 37,536,826
3. Sole power to dispose or
direct the disposition: 0
4. Shared power to dispose
or direct the disposition: 37,536,826
(c) Other than the
acquisition of the Reported Shares by RCG upon the consummation of the
Transactions, none of Messrs. Cohen, Stark, Strauss or Solomon entered
into any transactions in the Shares in the past 60 days. The Reported Shares held by RCG have been
allocated to the members of RCG,
10
including Messrs. Cohen,
Stark, Strauss and Solomon.
(d) Certain members of
RCG other than the Reporting Persons have the right to receive, or the power to
direct the receipt of dividends from, or proceeds from the sale of, certain
Shares of Class A Common Stock that are held by RCG and that are allocated
to them in connection with their ownership interest in RCG; however, these
rights are limited by certain restrictions, as described in Item 6 below.
(e) Not applicable.
Item
6. Contracts, Arrangements,
Understandings or Relationship with Respect to Securities of the Issuer
Under
RCGs operating agreement, a copy of which is attached hereto as Exhibit 99.3,
the members of RCG, including Messrs. Cohen, Solomon, Stark and Strauss,
generally will not be entitled to receive any distributions of Shares or other
capital from RCG, and RCGs managing member (C4S) has agreed in RCGs operating
agreement not to make any distributions of Shares or other capital to these
members (except for, in certain circumstances, distributions of any dividends
on the Shares held by RCG and tax distributions) for specified periods of
time. Following the distribution of the Shares to the members of RCG in
accordance with the lock-up provisions described below, such Shares will be
freely tradeable (subject to any applicable legal restrictions on transfers by
affiliates). These lock-up provisions
may be waived by the managing member in accordance with the terms of RCGs
operating agreement.
The
minimum lock-up which is applicable to certain RCG members provides that they
may withdraw one-third of their capital in RCG as of the end of each calendar
year beginning on December 31, 2009.
An aggregate of 1,655,726 Shares underlie the capital that these members
hold in RCG as of the closing of the Transactions. In connection with a withdrawal of capital by
these members of RCG, RCG will sell Shares attributable to these members on or
prior to the effectiveness of such withdrawal and will use the net proceeds of
such sales to satisfy the withdrawal requests of these members in cash.
A
second group of RCG members has agreed in RCGs operating agreement to further
lock-up their capital so that they may only withdraw one-third of their capital
upon each of the first, second and third anniversaries of the closing of the
Transactions. An aggregate of 17,906,992
Shares underlie the capital that these members hold in RCG as of the closing of
the Transactions. Upon the withdrawal of capital by these members of RCG, RCG
will distribute to the members the Shares underlying the withdrawn capital.
Furthermore,
certain RCG members who are also principals of RCG (some of whom are also
members of RCGs managing member and some of whom are officers of the Issuer
following the closing of the Transactions), which group includes Messrs. Cohen,
Solomon, Stark and Strauss, have further agreed in RCGs operating agreement
not to withdraw any of their capital from RCG (except for, in certain
circumstances, distributions of any dividends on the Shares held by RCG and
certain tax distributions) until the 30-month anniversary of the closing of the
Transactions, at which time such members would be allowed to withdraw half of
their capital in RCG. Upon the 36-month anniversary
of the closing of the Transactions, these individuals would be able to withdraw
all of their remaining capital from RCG.
9,455,423 Shares, in the aggregate, underlie the capital that these
members hold in RCG at the closing of the Transactions. If, however, at any time BA Alpine Holdings, Inc.
(a third party investor in RCG) and its affiliates beneficially own less than
4.9% of the then-outstanding shares of common stock of the Issuer (including
Shares held by RCG that are attributable to BA Alpine Holdings, Inc.), the
managing member of RCG may elect to make distributions of capital to these
principals of RCG in accordance with the schedule set forth in the immediately
preceding paragraph. If RCGs managing
member elects to make such accelerated distributions, Alpine Cayman Islands
Limited (an affiliate of BA Alpine Holdings, Inc.) and Bayerische Hypo-
und Vereinsbank AG (an affiliate of BA Alpine Holdings, Inc.) may cause,
subject to
11
certain
exceptions, investments in certain Ramius funds and certain funds of Ramius
Fund of Funds Group LLC to be reduced below certain agreed upon levels. Upon the withdrawal of capital by these
members of RCG, RCG will distribute to the members the Shares underlying the
withdrawn capital.
Upon
the consummation of the Transactions, 8,518,685 Shares were allocated to BA
Alpine Holdings, Inc. in respect of its ownership in RCG. Withdrawals of BA Alpine Holdings, Inc.s
capital in RCG are subject to restrictions and limitations as set forth in RCGs
operating agreement. For a period of six
months following the closing of the Transactions, BA Alpine Holdings, Inc.
is not permitted to withdraw any of its capital from RCG (except for, in
certain circumstances, distributions of any dividends on the Shares held by
RCG) other than to the extent necessary to prevent BA Alpine Holdings, Inc.
from being in violation of federal, state or foreign banking laws, including
the Bank Holding Company Act of 1956, as amended (the BHC Act). Following the six-month anniversary of the
closing of the Transactions, BA Alpine Holdings, Inc. will be allowed to
withdraw its capital from RCG to the extent that BA Alpine Holdings, Inc.,
together with its affiliates and permitted transferees, continue to
beneficially own 50% of the aggregate number of Shares that BA Alpine Holdings, Inc.
and its affiliates beneficially owned at the closing of the Transactions,
including shares beneficially owned indirectly through RCG. These restrictions will terminate following
the second anniversary of the closing of the Transactions or upon the
occurrence of certain Lock-Up Termination Events as defined in the RCG
operating agreement. Upon the withdrawal
of capital by BA Alpine Holdings, Inc., RCG will distribute to such
member, at its election, either (i) Shares underlying the withdrawn
capital (subject to certain provisions set forth in the RCG operating
agreement) or (ii) cash, in which instance RCG will sell Shares
attributable to such member on or prior to the effectiveness of such withdrawal
and will use the net proceeds of such sales to satisfy the withdrawal request
in cash.
References to and descriptions of RCGs operating
agreement set forth above in this Item 6 are not intended to be complete and
are qualified in their entirety by reference to the full text of the operating
agreement, a copy of which is attached hereto as Exhibit 99.3.
The responses to Item 2, Item 3, Item 4 and Item 5
are incorporated herein by reference.
Except as set forth in response to other Items of this Schedule 13D and
this Item 6, there are no contracts, arrangements, understandings or
relationships among the Reporting Persons, or between the Reporting Persons and
any other person, with respect to the securities of the Issuer.
On November 12, 2009, the Reporting Persons
entered into a Joint Filing Agreement in which the Reporting Persons agreed to
the joint filing on behalf of each of them of statements on Schedule 13D, with
respect to securities of the Issuer, to the extent required by applicable law. A copy of this agreement is attached hereto
as Exhibit 99.1 and is incorporated herein by reference.
Item
7. Material to be Filed as Exhibits
99.1 Joint
Filing Agreement
99.2 Transaction
Agreement and Agreement and Plan of Merger, dated June 3, 2009, by and
among Cowen Holdings, Inc. (f/k/a Cowen Group, Inc.), Cowen Group, Inc.
(f/k/a LexingtonPark Parent Corp.), Lexington Merger Corp., Ramius LLC (f/k/a
Park Exchange LLC) and RCG Holdings LLC (f/k/a Ramius LLC) (incorporated by
reference to Exhibit 2.1 of the Form 8-K filed by Cowen Holdings, Inc.
(f/k/a Cowen Group, Inc.) on June 5, 2009).
99.3 Fourth Amended
and Restated Limited Liability Company Agreement of RCG Holdings LLC (f/k/a
Ramius LLC), dated as of November 2, 2009, by and among C4S & Co.
L.L.C. and the Members party thereo.
12
SIGNATURE
After reasonable inquiry and to the best of each of
the undersigned knowledge and belief, each of the undersigned certifies that
the information set forth in this statement is true, complete and correct.
Dated: November 12, 2009
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RCG HOLDINGS LLC
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By: C4S & Co., L.L.C.,
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as managing member
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By:
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/s/ Jeffrey M. Solomon
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Name: Jeffrey M. Solomon
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Title: Authorized
Signatory
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C4S & CO., L.L.C.
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By:
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/s/ Jeffrey M. Solomon
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Name: Jeffrey M. Solomon
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Title: Authorized
Signatory
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/s/ Jeffrey M. Solomon
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JEFFREY M. SOLOMON
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/s/ Peter A. Cohen
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PETER A. COHEN
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/s/ Morgan B. Stark
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MORGAN B. STARK
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/s/ Thomas W. Strauss
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THOMAS
W. STRAUSS
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13
EXHIBIT 99.1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1)(iii) under
the Securities Exchange Act of 1934, as amended, the persons named below agree
to the joint filing on behalf of each of them of a Statement on Schedule 13D
filed on November 12, 2009 (including additional amendments thereto) with
respect to the shares of Class A Common Stock, par value $0.01 per share,
of Cowen Group, Inc. This Joint
Filing Agreement shall be filed as an Exhibit to such Statement.
RCG HOLDINGS LLC
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By: C4S & Co., L.L.C.,
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as managing member
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By:
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/s/ Jeffrey M. Solomon
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Name: Jeffrey M. Solomon
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Title: Authorized
Signatory
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C4S & CO., L.L.C.
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By:
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/s/ Jeffrey M. Solomon
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Name: Jeffrey M. Solomon
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Title: Authorized
Signatory
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/s/ Jeffrey M. Solomon
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JEFFREY M. SOLOMON
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/s/ Peter A. Cohen
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PETER A. COHEN
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/s/ Morgan B. Stark
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MORGAN B. STARK
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/s/ Thomas W. Strauss
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THOMAS W. STRAUSS
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Exhibit 99.3
Execution Version
FOURTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
RCG HOLDINGS LLC
This Fourth Amended and Restated Limited
Liability Company Agreement (this Agreement) of RCG Holdings LLC (f/k/a
Ramius LLC, the Company), dated as of November 2, 2009, by and among C4S &
Co., L.L.C. (C4S), having an office at 599 Lexington Ave, New York, New York
10022; and the persons listed on Schedule A attached hereto. This Agreement
amends and restates the Third Amended and Restated Limited Liability Company
Agreement between C4S and the persons listed on Schedule A dated January 1,
2007, as amended, and shall hereafter govern the Company and each Series. C4S and the persons listed on Schedule A
shall be referred to collectively hereinafter as the Members.
ARTICLE I
GENERAL PROVISIONS
1.01. Certificate of Formation; Name; Series LLC. A Certificate of Formation of the Company was
filed with the Secretary of State of Delaware on March 25, 1997, and
Certificates of Amendment to such Certificate of Formation were filed with the
Secretary of State of Delaware on (i) August 9, 2006, (ii) February 27,
2008 and (iii) November 2, 2009 (the Amendment). Pursuant to the Amendment, (i) the name
of the Company was changed from Ramius LLC to RCG Holdings LLC, and (ii) notice
was given that the Company is constituted as a series limited liability
company. This Agreement shall establish the terms for the issuance of series of
limited liability company interests in the Company herein, separate rights,
powers and duties with respect to specified property or obligations of the
Company and profits and losses associated with such specified property or
obligations (each, a Series) herein, each of which shall be insulated from
the liabilities of any other Series and the Company generally pursuant to Section 18-215
of the Delaware Limited Liability Company Act (the Act), except as otherwise
provided pursuant to this Agreement.
1.02. Term.
The term of the Company shall continue until the Company is dissolved in
accordance with the Act, or upon the termination of all Series. Any Series may be terminated at the
election of the Managing Member; provided that the termination of Series I
shall require the consent of the Series I Members holding a majority of
the Series I Percentage Interests and, for so long as either (x) BA
Alpine Holdings and its affiliates beneficially own, in the aggregate, 2.0% or
more of the outstanding New Parent Common Stock or (y) Series I owns,
in the aggregate, 2.0% or more of the outstanding New Parent Common Stock, any
termination of Series II, Series III or Series IV (including any
action or omission that would cause the termination of either such Series)
shall require the consent of the Series I Members holding a majority of
the Series I Percentage Interests if such termination would occur prior to
the restrictions on distribution or withdrawal set forth in Sections 4.03(c),
4.05(c) or 6.01(b), as applicable.. The term of each Series shall
continue for so long as the Series holds any assets. The death, retirement, resignation,
expulsion, bankruptcy or dissolution of a Member or the occurrence of any other
event which terminates the continued membership of a Member shall not in and of
itself cause a dissolution of the Company or the termination of any Series.
1.03. Purpose. The Companys and each Series sole purpose
is to (i) hold, own, vote, liquidate, convert, distribute and exercise any other rights as
shareholder with respect to (a) the shares of Class A common stock,
par value $0.01 per share (New Parent Class A Common Stock) of Cowen
Group, Inc. (f/k/a LexingtonPark Parent Corp.), a Delaware corporation (New
Parent), that were received by the Company pursuant to the transactions (the Transactions)
contemplated by the Transaction Agreement and Agreement and Plan of Merger,
dated as of June 3, 2009, (the Transaction Agreement), by and among the
Company, Cowen Group, Inc., New Parent, Lexington Merger Corp. and Park
Exchange LLC (Exchange Sub), pursuant to which, among other things, Exchange Sub acquired substantially all of the
assets and assumed all of the liabilities of the Company, which shares
of New Parent Class A Common Stock are held by each Series in
accordance with the terms of this Agreement, and (b) any other equity securities of New
Parent issued or issuable in exchange for or with respect to the New Parent Class A
Common Stock (x) by way of conversion, dividend, split or combination of
shares or (y) in connection with a reclassification, recapitalization,
merger, consolidation, other reorganization or similar transaction,
including, without limitation, shares of Class B common stock, par value
$0.01 per share (New Parent Class B Common Stock, and, together with the
New Parent Class A Common Stock, the New Parent Common Stock), of New
Parent, (ii) arbitrate that certain matter set forth on Schedule 1.03
hereof (the Arbitration), including, without limitation, asserting or
pursuing any claim, action, proceeding or investigation with respect thereto,
compromising or settling the Arbitration, conducting negotiations with the
counter-parties in the Arbitration and filing, prosecuting and/or defending any
appeals from any decision, judgment or award rendered in the Arbitration; (iii) to
exercise all of it rights and comply with all of its obligations with respect
to that certain $500,000 Secured Revolving Credit Facility made
available to the Company by Bayerische Hypo-und Vereinsbank AG, New York Branch as of the date hereof (the Revolving
Credit Facility), including without limitation, incurring debt under the
Revolving Credit Facility and granting security interests over certain assets
of the Company in accordance with the Revolving Credit Facility, (iv) maintain
and administer the Ramius LLC Employee Ownership Program and the
Ramius Fund of Funds Group LLC Participation Program (collectively, the Compensation
Programs), including complying with the Companys obligations thereunder and
under any grant agreements evidencing awards under the Compensation Programs, and
(v) liquidate the assets of the Company or make distributions of such
assets to the Members in accordance with the terms of this Agreement. The Company and each Series shall have
the power to do any and all acts necessary, appropriate, proper, advisable,
incidental or convenient to or for the furtherance of the purpose described
above, and for the protection and benefit of the Company and each Series,
including, without limitation, the power to invest any cash held by the Company
or any Series in short-term securities in accordance with this Agreement.
1.04. Limitation on Liability. Except as otherwise expressly provided in the
Act or this Agreement, the debts, obligations and liabilities of the Company
and each Series, whether arising in contract, tort or otherwise, shall be
solely the debts, obligations and liabilities of the Company or such Series, as
applicable, and no Member shall be obligated personally for any such debt,
obligation or liability of the Company or such Series solely by reason of
being a Member of the Company or such Series.
Except as otherwise expressly provided in the Act, the liability of each
Member shall be limited to the amount of capital contributions made by such Member
in accordance with the provisions of this Agreement.
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1.05. Tax Classification; No State Law Partnership. Each Series shall constitute a separate
business entity for federal income tax purposes and shall have and maintain the
status of a partnership solely for such purpose. Each
Member and the Company agree to file all tax returns and otherwise take all tax
and financial reporting positions in a manner consistent with such
treatment. No provision of this
Agreement shall be deemed or construed to constitute the Company or any Series as
a partnership (including a limited partnership) or joint venture, or any Member
as a partner of or with any other Member for any purposes other than federal,
state and local tax purposes.
1.06. Assets
and Liabilities Transferred in the Transaction. As
of the closing of the Transaction, except as expressly provided in this
Agreement, the Company shall not have any assets or liabilities other than (a) the
New Parent Common Stock issued in connection with the Transaction, (b) $500,000
in cash or cash equivalents, (c) all rights, titles and interest in the
Transaction Agreement and the other agreements ancillary to the Transactions
(including the documents and instruments referred to therein), (d) its
rights and obligations under Revolving Credit Facility, (e) its rights and
obligations under the Compensation Programs, including pursuant to any grant
agreements evidencing awards under the Compensation Programs and (f) the right to any proceeds
pursuant to a recovery in the Arbitration that is final, non-appealable and
binding, less (i) any expenses related thereto previously incurred by the
Company, (ii) any required disbursement of such proceeds to such
investment vehicles as the Company is obligated to distribute to such
investment vehicles and (iii) $6 million required to be disbursed to New
Parent, pursuant to the terms of the Transaction Agreement (the Net
Arbitration Proceeds). The Net
Arbitration Proceeds shall be considered a General Asset of the Company.
ARTICLE II
MANAGEMENT OF THE COMPANY
2.01. Managing Member; Establishment and
Characteristics of Series.
(a) The business and affairs of the Company and
each Series shall be managed by C4S, which shall be the Managing Member.
The Managing Member shall have the power to do any and all acts necessary or
convenient to or for the furtherance of the purposes described herein,
including resolving and paying any claims against the Company or any Series,
establishing reserves, paying expenses, retaining and paying attorneys,
accountants and other professional advisors, entering into agreements with
respect to the distribution and sale of shares of New Parent Common Stock,
entering into custodian and brokerage arrangements and including all other
powers, statutory or otherwise, possessed by members under the Act, and to
establish Series of interests in the Company as described herein, the
interests in each of which shall be separate and distinct from the interests in
any other Series. No Member (other than the
Managing Member), by reason of its status as such, shall have any authority to
act for or bind the Company or otherwise take part in the management of the
business and affairs of the Company; provided that the members shall have the
right to vote on or approve the actions specified herein or in the Act to be
voted on or consented to by the Members.
(b) There shall be four Series of interests
in the Company: Series I, Series II, Series III and Series IV. The assets of each Series, as of the date
hereof, are set opposite the name of such Series in Schedule B to this
Agreement. All of the interests in the
Company
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outstanding on the date hereof are hereby converted into an interest in
a Series as contemplated on Schedule A.
The Members holding the interests in each Series are set forth on
Schedule A, which also sets forth the Capital Account and Series Percentage
Interest of, and the number of shares of New Parent Common Stock allocable to,
each Member of each Series, and the Percentage Interest of each Member in the
Company, in each case, as of the date hereof. The Members holding interests in Series I
are referred to herein as the Series I Members with respect to their
ownership of interests in that Series.
The Members holding interests in Series II are referred to herein
as the Series II Members with respect to their ownership of interests in
that Series. The Members holding interests in Series III are referred to
herein as the Series III Members with respect to their ownership of
interests in that Series. The Members
holding interests in Series IV are referred to herein as the Series IV
Members with respect to their ownership of interests in that Series. All assets of a Series, including any
proceeds derived from the sale, exchange or liquidation of such assets shall be
held for the benefit of the Members who have interests in that Series and
shall irrevocably belong to that Series for all purposes, subject only to
the rights of creditors of such Series, shall be so recorded upon the books of
account of the Company and such Series and shall be held and accounted for
separately from the other assets of the Company or any other Series. Such assets, including any proceeds derived
from the sale, exchange or liquidation of such assets, are herein referred to
as assets belonging to or assets held with respect to that Series. In the event that
there are any assets which are not readily identifiable as assets held with
respect to any particular Series (collectively General Assets), the
Managing Member shall allocate such General Assets to, between or among any one
or more of the Series in proportion to each Series pro rata share of the
Percentage Interest of the Company; provided that, if the Managing Member, in
its reasonable discretion and in good faith, determines that such allocation of
General Assets (other than the Net Arbitration Proceeds, which in all events
shall be allocated pro rata among all the Series in accordance with their
respective Series Percentage Interests) would be unfair or inequitable to
any Series, the Managing Member may allocate the General Assets (other than the
Net Arbitration Proceeds) in such manner and on such basis as the Managing
Member, in its reasonable discretion and in good faith, deems fair and
equitable, and any General Assets so allocated to a particular Series shall
be held with respect to that Series. For the avoidance of doubt, any such
allocation by the Managing Member shall be conclusive and binding upon the
Members of all Series for all purposes.
Separate and distinct records shall be maintained for each Series and
the assets held with respect to each Series shall be held and accounted
for separately from the assets held with respect to all other Series and
the General Assets of the Company not allocated to such Series. No Series shall
have any right to or interest in the assets belonging to any other Series, and
no Member shall have any right or interest with respect to the assets belonging
to any Series in which it does not have an interest.
(c) The assets belonging to each particular Series shall
be charged with the liabilities of that Series and all expenses, costs,
charges and reserves attributable to that Series. The debts, liabilities, expenses, costs,
charges and reserves so charged to a Series are herein referred to as liabilities
belonging to that Series. Separate and
distinct records shall be maintained for the liabilities belonging to each
Series. The Managing Member shall
allocate general debts, liabilities, expenses, costs or charges of the Company
that are not readily identifiable with respect to any particular Series (General
Liabilities) to, between or among any one or more of the Series in
proportion to each Series pro rata share of the Percentage Interest of the
Company; provided that, if the Managing Member, in its reasonable discretion
and
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in good faith, determines that such allocation of General Liabilities
would be unfair or inequitable to any Series, the Managing Member may allocate
the General Liabilities in such manner and on such basis as the Managing
Member, in its reasonable discretion and in good faith, deems fair and
equitable.
(d) Notwithstanding any other provisions of this
Agreement, no distribution (including, without limitation, any distribution
made upon dissolution and winding up of the Company or the termination of any
Series) with respect to, nor any redemption or repurchase of, the interest of
any Series shall be effected by the Company other than from the assets
held with respect to such Series.
(e) In accordance with Section 18-215(b) of
the Act, but without limitation of the provisions of Section 2.01(c) hereof
relating to the allocation of General Liabilities, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series shall be enforceable against the assets of
such Series only, and not against the assets of the Company generally or
against any other Series thereof, and, except to the extent provided in Section 2.01(c) hereof
relating to the allocation of the General Liabilities, none of the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to the Company generally or any other Series shall
be enforceable against the assets of such Series.
(f) Each Member shall be the owner of one or
more interests in one or more Series and, as such, shall have the right to
a share of the Net Profits and Net Losses of the applicable Series and to
receive distributions of assets of such Series, but in all cases as
specifically provided in this Agreement.
The interests of the Members are personal property, and no Member shall
have an interest in specific property of the Company or any Series. The
ownership of interests shall be recorded and reflected on the books of the
Company, which books shall be maintained separately for the interests of each Series and
shall not be evidenced by a certificate. The record books of the Company as kept by the
Company shall be conclusive as to the identity of the Members of each Series and
as to the interests of each Series held from time to time by each Member.
2.02. Managing Employees. Managing Employees shall include Peter A.
Cohen (Cohen), Morgan B. Stark (Stark) and Thomas W. Strauss (Strauss).
2.03. Activities
of the Members.
(a) Nothing
in this Agreement shall preclude any Member, including, without limitation, the
Managing Member, or its Affiliates from exercising investment responsibility or
buying, selling or otherwise dealing with any securities for their own
accounts, or for any family member related to the Member (and its Affiliates
and its directors, officers, employees or other agents). No other Member shall
have any rights of first refusal, coinvestment or other rights in respect of
the investments of such accounts or in any profits or other income earned or
otherwise derived therefrom.
(b) Any
Member, including, without limitation, the Managing Member, and its Affiliates
may be engaged in businesses other than the business of the Company. A Member
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shall have no
right to participate in any manner in any profits or income earned or derived by
or accruing to any other Member or its Affiliates from the conduct of any
business other than the business of the Company or from any transaction in
securities effected by such Member for any account other than that of the
Company.
2.04. Officers and Employees; Compensation. The Managing Member may appoint officers of
the Company or any Series and may engage employees and agents on the
Companys or any Series behalf, as it deems appropriate. Such officers, employees and agents shall be
subject to removal or termination by the Managing Member at any time. Until the earlier of (a) the three-year
anniversary of the date of this Agreement and (b) Series I
beneficially owning, in the aggregate, less than 10% of the New Parent Common
Stock beneficially owned by Series I as of November 2, 2009, the
Company shall not enter into any compensation arrangement or any agreement that
is not on arms-length terms with any Ramius Key Principal without the consent
of the Series I Members holding a majority of the Series I Percentage
Interests.
2.05. Exculpation.
(a) (i) No Member or Managing Employee of
the Company or any Series and (ii) no officer, director or employee
of the Company or any of its subsidiaries or of any Series designated by
the Company as an Indemnified Party (each of the persons and entities described
in clauses (i) and (ii) being an Indemnified Party) shall be liable
to any Member, the Company or any Series for mistakes of judgment or for
any action or inaction, unless such mistakes, action or inaction arise out of,
or are attributable to, the gross negligence, willful misconduct, fraud or bad
faith of the Indemnified Party or breach of this Agreement. Subject to the
foregoing, no Indemnified Party shall be liable to any Member, the Company or
any Series for any action or inaction of any employee, broker, or other
agent of the Company or any Series, provided that such employee, broker or
agent was selected, engaged or retained by such Indemnified Party with
reasonable care. Any Indemnified Party may consult with counsel, accountants,
investment bankers, financial advisers, appraisers and other specialized,
reputable, professional consultants or advisers in respect of Company (or
Series) affairs and be fully protected and justified in any action or inaction
which is taken in accordance with the advice or opinion of such persons,
provided that they shall have been selected with reasonable care, subject to
the first sentence of this Section 2.05(a).
(b) Notwithstanding any of the foregoing to the
contrary, the provisions of this Section 2.05 shall not be construed so as
to relieve (or attempt to relieve) any Indemnified Party of any liability, to
the extent (but only to the extent) that such liability may not be waived,
modified or limited under applicable law, but shall be construed so as to
effectuate the provisions of Section 2.05 to the fullest extent permitted
by law.
2.06. Indemnification.
(a) Each Indemnified Party shall, in accordance
with this Section 2.06, be indemnified and held harmless by the Company,
and, if applicable, any Series, from and against any and all losses, claims,
damages, liabilities, expenses (including legal and other professional fees and
disbursements), judgments, fines, settlements, and other amounts (collectively,
the Indemnification Obligation) arising from any and all claims, demands,
actions, suits or
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proceedings (civil, criminal, administrative or investigative), actual
or threatened, in which such Indemnified Party may be involved, as a party or
otherwise (i) by reason of such persons service to or on behalf of, or
such persons management of the affairs of, the Company or any subsidiary of
the Company or such Series (including serving in any capacity, at the request
of the Company or any of its subsidiaries, in respect of any other person or
entity), or such persons rendering of advice or consultation with respect
thereto, or (ii) which relate to the Company or its subsidiaries or such Series or
their respective properties, business or affairs, whether or not the
Indemnified Party continues to be such at the time any such Indemnification
Obligation is paid or incurred, provided that such Indemnification Obligation
did not result from mistakes of judgment or from any action or inaction, that
arise out of, or are attributable to, the gross negligence, fraud, willful
misconduct or bad faith of the Indemnified Party or breach of this
Agreement. The Company, and, if
applicable, any Series, shall also indemnify and hold harmless an Indemnified
Party from and against any Indemnification Obligation suffered or sustained by
such Indemnified Party by reason of any action or inaction of any employee,
broker or other agent of such Indemnified Party; provided, however, that such
employee, broker or agent was selected, engaged or retained by such Indemnified
Party with reasonable care. Expenses
(including legal and other professional fees and disbursements) incurred in any
proceeding will be paid by the Company, and, if applicable, any Series in
advance of the final disposition of such proceeding upon receipt of any
undertaking by or on behalf of such Indemnified Party to repay such amount if
it shall ultimately be determined that such Indemnified Party is not entitled
to be indemnified by the Company as authorized hereunder.
(b) The indemnification provided by this Section 2.06
shall not be deemed to be exclusive of any other rights to which each
Indemnified Party may be entitled under any agreement, or as a matter of law,
or otherwise, both as to action in such Indemnified Partys official capacity
and to action in another capacity, and shall continue as to such Indemnified
Party who has ceased to have an official capacity for acts or omissions during
such official capacity or otherwise when acting at the request of a Managing
Member and shall inure to the benefit of heirs, successors and administrators
of such Indemnified Party.
(c) The Managing Member shall have the power to
purchase and maintain insurance on behalf of the Managing Member and each
Indemnified Party, at the expense of the Company, against any liability which
may be asserted against or incurred by them in any such capacity, whether or
not the Company would have the power to indemnify the Indemnified Parties against
such liability under the provisions of this Agreement.
(d) Notwithstanding any of the foregoing to the
contrary, the provisions of this Section 2.06 shall not be construed so as
to provide for the indemnification of an Indemnified Party for any liability to
the extent (but only to the extent) that such indemnification would be in
violation of applicable law or that such liability may not be waived, modified,
or limited under applicable law, but shall be construed so as to effectuate the
provisions of this Section 2.06 to the fullest extent permitted by law.
2.07. Bank Regulated Members.
(a) BHC Member shall mean a Member that is a
bank holding company, as defined in Section 2(a) of the Bank Holding
Company Act of 1956, as amended (the BHC Act),
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or a non-bank subsidiary of such bank holding company or any company
that is directly or indirectly subject to the BHC Act (other than BA Alpine
Holdings, Inc. and any transferees or successors of its interest in the
Company (BA Alpine Holdings)).
(b) Notwithstanding anything to the contrary in
this Agreement, the amount of any BHC Members aggregate percentage interest in
the Company (including all Series of the Company, considered as a whole)
from time to time in excess of 4.99% (including without limitation as a result
of the admission or withdrawal in whole or in part of any Member or any
subsequent closing) shall be held in the form of a Limited-Voting Interest (as
defined below) and any BHC Member may, upon notice to the Managing Member,
elect at any time to hold all or any fraction of such Members interest in the
Company (including in any Series) as a Limited-Voting Interest. Limited-Voting
Interest shall mean an interest which shall not be entitled to vote or
otherwise participate in any consent of the Members as to any matter other than
(i) dissolution of the Company or, if applicable, termination of a Series,
or (ii) any amendment pursuant to Section 8.01(b) (with such
Limited-Voting Interest not being counted in determining the giving or
withholding of any such consent or determining whether the requisite majority
of the Percentage Interests or Series Percentage Interests, as the case
may be, have consented to, approved, adopted or taken any other action
hereunder). Except as provided in this Section, an interest in the Company
(including any Series) held as a Limited-Voting Interest shall be identical in
all respects to all other interests in the Company (or such Series) held by the
Members. Any election to hold Limited-Voting Interests shall be irrevocable and
shall bind the successors and assigns of the holder of such Limited-Voting
Interest.
(c) Each BHC Member hereby further irrevocably
waives, to the extent of its Limited-Voting Interest, its rights under the Act
to vote or consent to any action by or with respect to the Company, a Series or
the Managing Member other than dissolution of the Company or, if applicable,
termination of any Series, which waiver shall be binding upon such BHC Member
and any entity which succeeds to such Limited-Voting Interest.
(d) Subject to Section 4.02(a) or
4.03(a), as the case may be, the Company shall provide to each BHC Member
notice (i) as soon as reasonably practicable once the Company reasonably
believes that such BHC Members ownership in the Company (including all Series thereof,
taken as a whole) would, or would be reasonably likely to, exceed 33.33% of the
Percentage Interests of the Company and (ii) at least 75 days prior to
each annual anniversary of the date of this Agreement if the Company reasonably
believes that such BHC Members ownership in the Company (including all Series thereof, taken as
a whole) would, or would be reasonably likely to, exceed 33.33% of the
Percentage Interests of the Company after giving effect to distributions and
withdrawals of capital by other Members with respect to which the Company has
received a notice of withdrawal (clause (ii), a BHC Event). Notwithstanding any provision of this
Agreement to the contrary, any BHC Member may elect to withdraw from the
Company, or make a partial withdrawal from such BHC Members Capital Account at
any time, to the extent necessary to prevent such BHC Member from having an
aggregate Percentage Interest in the Company (including any Limited-Voting
Interest) in excess of 33.33% or otherwise being in violation of the BHC Act or
other federal, state or foreign banking law. In the event of such withdrawal,
the withdrawing BHC Member shall give notice and receive its withdrawn capital
in accordance with Section 4.02(d) (in the case of a Series I
Member) or Sections 4.03(c) and 4.03(d) (in the case of a Series II
Member). Notwithstanding that payment
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on account of a withdrawal may be made after the effective time of such
withdrawal, any completely withdrawing BHC Member shall not be considered a
Member for any purpose after the effective time of such complete withdrawal
and, with respect to any partially withdrawing BHC Member, such BHC Members
Capital Account and Series Capital Accounts (and corresponding voting and
other rights) shall be reduced for all other purposes hereunder upon the
effective time of such partial withdrawal.
(e) Notwithstanding any provision in this
Agreement to the contrary, any BHC Member may elect, by notice in writing to
the Managing Member, liquidator or liquidating trustee, as applicable, to
decline the receipt of distributions in kind if the receipt thereof would cause
such BHC Member to be in violation of the BHC Act or any other federal, state
or foreign banking law, in which event the Managing Member, liquidator or
liquidating trustee shall cause the property which would otherwise have been
distributed to such BHC Member to be disposed of and the proceeds of such
disposition to be distributed to such BHC Member, or make other arrangements
approved by such BHC Member, in each case at the expense of such BHC
Member. Such BHC Member shall indemnify
the Company and the Managing Member for any liability incurred by any of them
arising from such disposition.
(f) Notwithstanding anything to the contrary in
this Agreement (including anything to the contrary in subsections (a)-(e) of
this Section 2.07), BA Alpine Holdings entire interest in the Company
(including in any Series) shall be held in the form of a Nonvoting Interest (as
defined below). Nonvoting Interest shall mean an interest in the Company
(including any Series) the holder of which shall not be entitled to vote or
otherwise participate in any consent of the Members as to any matter other than
(i) termination of Series I or the sale, or as provided in Section 4.02(d) disposition
of, New Parent Common Stock held by Series I, (ii) as provided in
Sections 1.02, 2.04, 2.07, 2.08, 4.03(c)(iv), 4.03(f), 5.01(c) and 5.02(a) or
(iii) any amendment pursuant to Section 8.01(a) (with respect to
the purpose of the Company) or Section 8.01(b) hereof (with such
Nonvoting Interest not being counted in determining the giving or withholding
of any such consent or determining whether the requisite majority of the
Percentage Interests have consented to, approved, adopted or taken any other
action hereunder, except for any vote or consent referenced in clauses (i), (ii) or
(iii) of this Section 2.07(f).
A Member holding a Nonvoting Interest shall not participate in the
management of the Company or any Series nor shall it participate in making
decisions as to Company or Series policy. Except as provided in this Section 2.07,
an interest in the Company (including in any Series) held as a Nonvoting
Interest shall be identical in all respects to all other interests in the
Company (or such Series) held by the Members. An interest in the Company
(including any Series) held as a Nonvoting Interest shall remain a Nonvoting
Interest upon transfer to any other person and the provisions of Section 2.07(c),
(d), (e), (f) and (g), to the extent applicable, shall bind the successors
and assigns of the holder of a Nonvoting Interest.
(g) Notwithstanding anything to the contrary in
this Agreement (including anything to the contrary in subsections (a)-(e) of
this Section 2.07) but subject to the rights set forth in Section 2.07(f),
BA Alpine Holdings
(i) shall be subject to and have the benefit of
the provisions of subsections (c), (d) and (e) of this Section 2.07
as if it were a BHC Member, except that references to a Limited-Voting Interest
shall be deemed to refer to a
9
Nonvoting Interest;
(ii) shall be subject to and have the benefit of the
provisions of Section 5.01 hereof, except that the words which shall not
be unreasonably withheld shall be deemed to have been deleted as the provision
shall apply to BA Alpine Holdings;
(iii) shall be subject to and have the benefit of
the provisions of Section 5.02 hereof, except that the unanimous consent
referred to in the first sentence therein shall not be understood to include
the consent of BA Alpine Holdings; and
(iv) shall be subject and have the benefit of the
provisions of Section 8.01 hereof as if it were a BHC Member.
2.08. Governance of New Parent. Except as specifically set forth below, the
Managing Member shall have the right and the authority to vote all shares of
New Parent Common Stock held by the Company for the account of each Series, in
its sole discretion, on all matters that are presented to a vote of the
stockholders of New Parent.
Notwithstanding the foregoing:
(a) For so long as BA Alpine Holdings and its
affiliates beneficially own any shares of New Parent Common Stock, without the
prior consent of BA Alpine Holdings, the Company for the account of each Series shall
not vote the shares of New Parent Common Stock held by the Company or any Series in
favor of an amendment to the terms of the New Parent Class B Common Stock
(whether or not any shares of New Parent Class B Common Stock are issued
and outstanding at such time);
(b) For so long as BA Alpine Holdings and its
affiliates beneficially own any shares of New Parent Common Stock, the Company
and Series I shall, with respect to an amendment to the terms of New
Parents certificate of incorporation or bylaws which is intended to
discriminate against BA Alpine Holdings relative to the other Members, vote the
shares of New Parent Common Stock held by Series I as directed by the Series I
Members;
(c) Until BA Alpine Holdings and its affiliates
beneficially own, in the aggregate, less than 4.9% of the outstanding New
Parent Common Stock throughout any consecutive 90-day period following the
consummation of the Transactions, the Company and each Series shall vote
all of the shares of New Parent Class A Common Stock held by the Company
and each Series in favor of the election to the Board of Directors of New
Parent of one individual selected by BA Alpine Holdings (the BA Designee),
and in the event that the BA Designee ceases to be a director of New Parent,
the Company for the account of each Series shall use its reasonable best
efforts to cause the directors then serving on the Board of Directors of New
Parent that were designated by the Company and each Series (the Company
Designees) to fill such vacancy as is directed by BA Alpine Holdings;
(d) subject to applicable law and stock exchange
requirements, until BA Alpine Holdings and its affiliates beneficially own, in
the aggregate, less than 10% of the outstanding New Parent Common Stock
throughout any consecutive 90-day period following the consummation of the
Transactions, the Company and each Series shall use reasonable best
10
efforts to cause the BA Designee to be a member of each committee of
the Board of Directors of New Parent; and
(e) until the second anniversary of the date of
this Agreement, without the prior consent of BA Alpine Holdings, none of the
Company, any Series, the Managing Member or any Ramius Key Principal shall
engage in any transaction with New Parent or any of its controlled affiliates
(other than (i) the transactions set forth on Schedule 2.08 hereto, (ii) customary
expense reimbursements for directors and officers, and (iii) in the case
of each of the Company, each Series and the Managing Member, voting the
shares of New Parent Class A Common Stock and exercising its rights with
respect to such shares and performing all acts incidental to the ownership of
the New Parent Common Stock and operation of the business of the Company in
accordance with this Agreement).
(f) For purposes of Sections 2.08, 4.03(c)(iv),
4.03(f) and 5.01, a Member shall be deemed the beneficial owner of and
shall be deemed to beneficially own or have beneficial ownership of any
securities which such Member or any of such Members affiliates beneficially
owns directly or indirectly (as determined pursuant to Rules 13d-3 and
13d-5(b)(1) under the Securities Exchange Act of 1934, as amended);
provided, that (i) a Member shall be deemed to beneficially own the number
of shares of New Parent Common Stock allocable to such Member with respect to
its Series Percentage Interest, and (ii) the number of shares of New
Parent Common Stock that are deemed to be beneficially owned by BA Alpine
Holdings and its affiliates shall not include any shares of New Parent Common
Stock that (x) are the subject of derivative transactions entered into by
BA Alpine Holdings and a non-affiliated third party (the Counterparty), which
give the Counterparty the economic equivalent of ownership of such shares due
to the fact that the value of the derivative is explicitly determined by
reference to the price or value of such shares, without regard to whether (a) such
derivative conveys any voting rights in such shares to the Counterparty, (b) the
derivative is required to be, or capable of being, settled through delivery of
such shares, or (c) the Counterparty may have entered into other
transactions that hedge the economic effect of such derivative or (y) are
held in accounts managed or maintained by BA Alpine Holdings or its affiliates
for the benefit of clients that are non-affiliated third parties.
(g) Notwithstanding anything in this Agreement
to the contrary, any rights granted to BA Alpine Holdings pursuant to Sections
2.08(a), (b), (c) and (d) are not transferable to any person other
than an affiliate of BA Alpine Holdings in connection with a permitted transfer
of Percentage Interests to such affiliate in accordance with Section 5.01.
ARTICLE III
CAPITAL ACCOUNTS OF MEMBERS
AND OPERATION THEREOF
3.01. Definitions. For the purposes of this Agreement, unless
the context otherwise requires:
(a) the term Net Profits shall mean, in
respect of any Series, with respect to any Accounting Period, the excess of (i) revenues
of that Series increased or reduced by the amount credited or debited to
the capital account of the Series in any entity in which that Series
11
is invested, over (ii) the Series expenses; and
(b) the term Net Losses shall mean, in respect
of any Series, with respect to any Accounting Period, the excess of (i) that
Series expenses over (ii) revenues of that Series increased or reduced
by the amount credited or debited to the capital account of that Series in
any entity in which that Series is invested.
(c) the term Accounting Period in respect of
the Company or any Series shall mean a period (i) the first day of
which is (A) the first day of each calendar quarter, (B) the date on
which any material amount is credited to a Capital Account (as determined by the Managing Member), other
than on a pro rata basis, (C) such other date deemed appropriate by the
Managing Member, including as a result of interim year accounting adjustments,
and (ii) the last day of which is (A) the day prior to the
commencement of any Accounting Period or (B) the date on which there are
withdrawals or distributions from the Company or that Series, as the case may
be, or any material amount is debited to any Capital Account, other than on a
pro rata basis.
3.02. Expenses of the Company. The Company and each Series shall pay,
and shall reimburse any Member who pays on behalf of the Company or such
Series, all costs and expenses incurred in connection with the business of the
Company or such Series, including organizational costs and expenses and
operating expenses of the Company or such Series (including without
limitation legal and accounting costs and other third party costs). Notwithstanding the foregoing, the Company
and each Series shall not make any payments to any Ramius Key Principal or
any employee or director of New Parent or any of its affiliates other than such
payments made in connection with permitted withdrawals hereunder or payments of
Indemnification Obligations. Unless the Managing Member determines that any
such costs or expenses are directly attributable to a particular Series, they
shall constitute General Liabilities.
3.03. Capital Contributions. The Members have contributed or are deemed to
have contributed to the Company in respect of each Series the amounts
(each, a Capital Contribution) set forth on Schedule B.
3.04. Additional Contributions. No Member is required to make any additional
capital contributions to the Company or any Series. Except as required by law, no Series shall
accept any capital contribution after the date hereof.
3.05. Capital Accounts. A capital account (a Capital Account) has
been established in the books of each Series for each Member of that
Series. The Capital Account of each Member shall be in an amount set forth in
the books and records of the applicable Series.
At the end of each Accounting Period, the Capital Account of each Member
shall be (i) increased or decreased by the Net Profits or Net Losses
credited or debited to the Capital Account of such Member pursuant to Section 3.07;
and (ii) decreased by the amount of any distributions or withdrawals made
by or to such Member pursuant to Sections 2.07, 6.01 or 7.01(b) or Article IV.
3.06. Percentage Interests.
(a) The Percentage Interests of the Members in
the Company with respect to any Accounting Period shall be determined by
dividing the aggregate amount of the Capital Account(s) of each Member in
each Series in which the Member holds an interest by the
12
aggregate amount of the Capital Accounts in all Series of all the
Members in all Series at the beginning of such Accounting Period. As of the date of this Agreement, each Members
Percentage Interest shall be as set forth opposite such Members name on
Schedule B, and shall be equal to the number of shares of New Parent Common
Stock calculated as the product of (x) such Members Percentage Interest
in the Company immediately prior to the closing of the Transactions and (y) the
aggregate number of shares of New Parent Common Stock received by the Company
in the Transactions.
(b) The Series Percentage Interests of the
Members in each Series with respect to any Accounting Period shall be
determined by dividing the amount of the Capital Account of each Member in such
Series by the aggregate amount of the Capital Accounts of all the Members
in such Series at the beginning of such Accounting Period. The Series Percentage Interests of the Series I
Members in Series I are herein referred to as the Series I
Percentage Interests. The Series Percentage
Interests of the Series II Members in Series II are herein referred
to as the Series II Percentage Interests. The Series Percentage Interests of the Series III
Members in Series III are herein referred to as the Series III
Percentage Interests. The Series Percentage
Interests of the Series IV Members in Series IV are herein referred
to as the Series IV Percentage Interests. The Series I Percentage Interests, Series II
Percentage Interests, Series III Percentage Interests and Series IV
Percentage Interests are herein referred to as the Series Percentage
Interests.
3.07. Allocation of Net Profits, and Net Losses. For each Series, Net Profits and Net Losses,
if any, for each Accounting Period, shall be allocated to the Members pro rata
in accordance with their respective Series Percentage Interests at the
beginning of such period for such Series.
3.08. Liabilities. Liabilities shall be determined in accordance
with generally accepted accounting principles applied on a consistent basis;
provided, however, that the Managing Member, in its reasonable discretion and
in good faith, may provide reasonable reserves for estimated accrued expenses,
liabilities or contingencies, whether or not in accordance with generally
accepted accounting principles.
3.09. Determination by the Managing Member of
Certain Matters. All matters
concerning valuations and the allocation of taxable income, deductions,
credits, Net Profits and Net Losses among the Members, including taxes thereon
and accounting procedures, not expressly provided for by the terms of this
Agreement, shall be reasonably and equitably determined in good faith by the
Managing Member, whose determination shall be final, conclusive and binding as
to all of the Members. Without limiting the generality of the foregoing and
notwithstanding Section 3.07, if during a fiscal year an Event (as defined
in Section 6.01(c)) occurs in respect of a Member, the Managing Member in
its sole discretion may make a special allocation to the withdrawn Member for
U.S. federal income tax purposes of all or a portion of the income and gain
recognized by the Company with respect to such Members Series for such
fiscal year in such a manner as will eliminate or reduce the amount, if any, by
which such Members Capital Account balance as of the last day of the fiscal
year in which the Event occurs exceeds its tax basis in its interest in the
Company (including a Series) for U.S. federal income tax purposes, such tax
basis being determined without regard to any adjustment made by reason of any
transfer or assignment of such interest or by reason of death; provided,
however, that such
13
income and gain specially allocated shall be in an amount that is
proportionate to net ordinary income, short-term capital gain and long-term
capital gain of the Series during the fiscal year.
ARTICLE IV
DISTRIBUTIONS AND WITHDRAWALS
4.01. Distributions to Series III Members. Each
Series III Member shall receive a distribution of 40% of the taxable Net
Profits allocated to his Capital Account for a fiscal year; provided, however,
that with the Managing Members consent, a Series III Member may elect to
not take such distribution. Other distributions shall be made to the Series III
Members at the Managing Members discretion. Such other distributions shall be
allocated among the Series III Members in accordance with their Series III
Percentage Interests.
4.02. Limitation on Distributions and Withdrawals
for Series I Members.
(a) Distributions
and permitted withdrawals from Series I are subject to (i) the
provision by Series I for all liabilities of Series I in accordance
with the Act and (ii) reserves for liabilities taken in accordance with Section 3.08
hereof. In no event shall the Company or
any Series be entitled to offset against distributions any claims which it
or its Affiliates, on the one hand, may have against a Series I Member or
its Affiliates, on the other hand, other than Liabilities of such Member
arising solely in such Persons capacity as a Member of the Company.
(b) The
Managing Member may not withdraw any of its Series I Capital Contribution
prior to the termination of Series I.
(c) Distributions may only
be made from Series I to a Series I Member, as follows:
(i) commencing
the day after the six month anniversary of this Agreement, a number of shares
of New Parent Common Stock (or cash proceeds in respect thereof as provided in Section 4.02(d))
specified in the notice given pursuant to this Section 4.02(c), such that
following such distribution, such Series I Member together with its
Affiliates and permitted third-party transferees under the Exchange Agreement
and Section 5.01 hereof retain beneficial ownership of at least fifty
percent (50%) of the sum of (x) the New Parent Common Stock constituting
the aggregate Capital Contribution of the Series I Members to Series I
and (y) the New Parent Common Stock constituting Exchange Consideration
under the Exchange Agreement (as adjusted for stock splits, consolidations,
recapitalizations, reorganizations, mergers and similar events affecting the
New Parent capital);
(ii) from
and after the earlier of (x) the second anniversary of the date hereof,
and (y) and the Lock-up Termination Event, the balance of any assets
allocable to such Member in respect of Series I;
(iii) as
provided in Section 2.07; and
14
(iv) as provided in Section 4.06.
All distributions pursuant to Section 4.02(c)(i), (ii) and (iii) shall
be made only in accordance with Section 4.02(d) and after receipt of
at least two business days prior written notice (a Series I Withdrawal
Notice) from the Series I Member requesting the same. Each Series I Withdrawal Notice shall
specify whether the distribution shall be made in cash or in-kind. If a cash distribution is requested, the Series I
Withdrawal Notice shall specify the instructions of the Series I Member
regarding the manner of sale, the counterparty (if not a public sale), the
underwriter or broker, if applicable, and any limitations on the sale of the
shares of New Parent Class A Common Stock, and the Company shall use
commercially reasonable efforts to sell the shares of New Parent Class A
Common Stock in accordance with any such instructions contained in the Series I
Withdrawal Notice. If an in-kind
distribution is requested, the Series I Withdrawal Notice shall specify
whether any of the shares to be distributed should be delivered in the form of
New Parent Class A Common Stock or converted by the Company into shares of
New Parent Class B Common Stock prior to distribution; provided, that a Series I
Member shall not request an in-kind distribution of shares of New Parent Class A
Common Stock to the extent that such distribution would result in such Series I
Member and its affiliates beneficially owning a number of outstanding shares of
New Parent Class A Common Stock that would violate the BHC Act. Lock-up Termination Event means:
(A) a
material breach by the Company of any of the agreements set forth on Schedule
4.02(c) to this Agreement, which breach continues for 10 days after
receipt by the Company of written notice of such breach from the Series I
Member;
(B) the
occurrence of a BHC Event;
(C) 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;
(D) the
failure of the Company to comply with Section 2.08(c) of this
Agreement; or
(E) the
Managing Member ceasing to be controlled by at least two of Messrs. Cohen,
Stark, Strauss and Jeffrey Solomon.
(d) Upon
any permitted distribution to a Series I Member (other than pursuant to Section 4.06),
such Series I Member shall have the option (exercised in the Series I
Withdrawal Notice), to receive either: (i) cash,
to be generated by the sale by the Company and Series I on behalf of such Series I
Member of the requisite number of shares of New Parent Class
15
A Common Stock
underlying the Series I Percentage Interest in respect of which such
distribution is being made (less any underwriting/brokerage costs and
reasonable third-party legal or other third-party advisor expenses); or (ii) in
kind, as the requisite number of shares of New Parent Class A Common Stock
underlying such Series I Percentage Interest; provided that, unless the Series I
Member is permitted under the BHC Act to receive an in-kind distribution of Class A
Common Stock and so advises the Company and Series I, then prior to any
such in-kind distribution, the Company and Series I shall take all
necessary action to convert the number of shares (if any) of New Parent Class A
Common Stock held by Series I specified in the Series I Withdrawal
Notice into New Parent Class B Common Stock which it shall distribute to
the Series I Member. A Member
withdrawing pursuant to clause (i) shall receive its withdrawn capital
promptly following the completion of the sale by the Company and Series I
of the shares of New Parent Class A Common Stock underlying the Series I
Percentage Interest in respect of which such distribution is being made (less
any underwriting/brokerage costs and reasonable third-party legal or other
third-party advisor expenses). A Member
withdrawing pursuant to clause (ii) shall receive its withdrawn capital
upon two business days written notice to the Managing Member of such
withdrawal. The Company and the Managing
Member shall use their respective commercially reasonable efforts to make such
distribution in the manner set forth in the Series I Withdrawal Notice as
soon as reasonably practicable following receipt thereof. In the event that a Series I Member
elects to receive cash in respect of any withdrawal, it shall indemnify the
Company, Series I and the Managing Member from and against any liability
arising from the related sale of shares of New Parent Common Stock as
contemplated by this Section 4.02(d) except to the extent that the
liability arises as a result of (x) the gross negligence, fraud, willful
misconduct or bad faith of the Company, Series I or the Managing Member or
(y) information provided by the Company, Series I or the Managing
Member with respect to such Persons for inclusion in a registration statement
or securities purchase agreement. The
Company and Series I shall provide the Series I Member with
reasonable access to all documentation in connection with any such transaction
prior to execution and shall obtain the consent of such Member with respect to
any expenses to be allocated to such Member in connection with such
disposition. Except as required by this Section 4.02(d) or
Section 2.07, the Company and Series I shall not sell or dispose of
shares of New Parent Common Stock held by Series I without the consent of
the Series I Member to whom such shares are allocable.
(e) In the event that the provisions regarding
the distributions to or withdrawals of capital by any Series II Member or Series III
Member are amended or waived in any manner so as to make those provisions more
favorable to any such Member than the existing distribution and withdrawal
provisions for the Series I Members are to any Series I Member (other
than the Managing Member), the distribution and withdrawal provisions of the Series I
Members (other than the Managing Member) shall be deemed to be amended to
reflect such more favorable provisions.
(f) In the event that any Series I Member
gives notice to the Managing Member that it is withdrawing capital in
accordance with this Section 4.02 during any blackout period pursuant to
the then effective Insider Trading policy of New Parent, the Managing Member
may delay the distribution (whether in cash or in kind) of such withdrawn
capital until such time as the blackout period has expired. In the event that any Series I Member
gives notice to the Managing Member that it is withdrawing capital in
accordance with this Section 4.02 (ii) during any period ( a Deferral
Period) in which the Managing Member determines, in
16
its sole discretion, that it is in possession of material nonpublic
information regarding New Parent, the Managing Member may delay the
distribution (whether in cash or in kind) of such withdrawn capital until the date on which the Managing Member no
longer possess nonpublic inside information; provided, however the Managing
Member shall not delay any such distribution for a period in excess of 60
consecutive calendar days or in excess of 120 calendar days in any twelve-month
period, provided that there must be an interim period of at least ninety (90)
consecutive days between the end of one Deferral Period and the beginning of
another Deferral Period.
(g) Following a distribution to a Series I
Member in accordance with this Section 4.02, the Managing Member will
notify such Member of the number of shares of New Parent Common Stock
beneficially owned by such Member through its Series I Interest.
(h) The Exchange Agreement means that certain
Asset Exchange Agreement dated as of June 3, 2009 by and among the
Company, LLC, HVB Alternative Advisors, LLC, Bayerische Hypo- und Vereinsbank
AG, Cowen Group Inc., LexingtonPark Parent Corp., Lexington Merger Corp., and
Park Exchange LLC.
4.03. Limitation on Distributions and Withdrawals
for Series II Members.
(a) Distributions and permitted withdrawals from
Series II are subject to the provision by Series II for (i) all
liabilities of Series II in accordance with the Act and (ii) reserves
for liabilities taken in accordance with Section 3.08 hereof.
(b) The Managing Member may not withdraw any of
its Series II Capital Contribution prior to termination of Series II.
(c) Distributions may only be made from Series II
to a Series II Member, as follows:
(i) on the first anniversary of the date of this
Agreement, the number of shares of New Parent Class A Common Stock
specified in the notice given pursuant to the last sentence of this Section 4.03(c) (the
Specified Distribution Amount), not to exceed the excess of (x) one-third
of the number of shares of New Parent Common Stock constituting the Capital
Contribution in respect of Series II of such Series II Member over (y) such
number of shares that had been distributed to such Member, or the proceeds of
the sale or disposal of which have been distributed to such Member, from Series II
since the date hereof;
(ii) on the second anniversary of the date of
this Agreement, the Specified Distribution Amount in respect of such
distribution, not to exceed the excess of (x) two-thirds of the number of
shares of New Parent Common Stock constituting the Capital Contribution in
respect of Series II of such Series II Member over (y) such
number of shares that have been distributed to such Member, or the proceeds
from the sale or disposal of which have been distributed to such Member, from Series II
since the date hereof;
17
(iii) commencing on the third anniversary of the
date of this Agreement, the lesser of (x) the Specified Distribution
Amount in respect of such distribution or (y) the balance of any assets
allocable to such Series II Member in respect of Series II;
(iv) as determined by the Managing Member, such
number of shares of New Parent Common Stock or other assets in Series II
allocable to such Series II Member; provided that without the consent of
the Series I Members holding a majority of the Series I Percentage
Interests, the restrictions on distributions set forth in clauses (i), (ii) or
(iii) above shall not be accelerated and shall apply with respect to this
clause (iv) for so long as either (x) BA Alpine Holdings and its
affiliates beneficially own, in the aggregate, 2.0% or more of the outstanding
New Parent Common Stock or (y) Series I owns in the aggregate 2.0% or
more of the outstanding New Parent Common Stock;
(v) as provided in Section 2.07; and
(vi) as provided in Section 4.06.
All such distributions (other than pursuant to Section 4.06) shall
be made only in accordance with Section 4.03(d) and after receipt of
at least 90 days (30 days in case of a distribution contemplated by Section 2.07)
prior written notice from the Series II Member requesting the same.
(d) Distributions pursuant to Section 4.03(c)(i),
(ii) and (iii) shall only, and distribution pursuant to Section 4.03(c)(iv) may,
be made with shares of New Parent Class A Common Stock. Distributions pursuant to Section 4.03(c)(iv) may
also be made with other property received as proceeds from the sale or
disposition of New Parent Class A Common Stock in Series II allocable
to the Series II Member to whom such distribution is to be made. Distributions pursuant to Sections 4.03(c)(v) and
(vi) shall be made with such assets as provided in Section 2.07 or
4.06, as the case may be.
(e) In the event that any Series II Member
gives notice to the Managing Member that it is withdrawing capital in
accordance with this Section 4.03 either (i) during any blackout
period pursuant to the then effective Insider Trading policy of New Parent or (ii) during
any period in which the Managing Member determines, in its sole discretion,
that it is in possession of material nonpublic information regarding New
Parent, the Managing Member may delay the distribution (whether in cash or in
kind) of such withdrawn capital until such time as the blackout period has
expired or the Managing Member no longer possess nonpublic inside information.
(f) Notwithstanding anything in this Section 4.03
to the contrary, each Series II Member set forth on Schedule 4.03(f) to
this Agreement (each, a Ramius Key Principal) hereby agrees, and any
permitted transferee of such Members interests pursuant to Section 5.01(a)(i) will
be deemed to have agreed in connection with such transfer, not to make any
withdrawals of capital and the Managing Member agrees not to make any distributions
to such
18
Series II Member (except for distributions pursuant to Section 4.06)
until (i) with respect to 50% of the interests in Series II held by
each Ramius Key Principal, the date that is 30 months after the date of this
Agreement, (ii) with respect to the remaining interests in Series II
held by each Ramius Key Principal, the date that is 36 months after the date of
this Agreement and (iii), upon the election of the Managing Member, on or after
such time as BA Alpine Holdings and its affiliates beneficially own less than
4.9% of the outstanding common stock of New Parent; provided, that, such Series II
Members shall nevertheless continue to be bound by the restrictions on
withdrawal set forth in this Section 4.03 (a) through (e). Notwithstanding anything to the contrary in
this Agreement, the Managing Member will not consent to the amendment of this
clause (f) or any withdrawal in contravention of this clause (f) without
the prior consent of the Series I Members holding a majority of the Series I
Percentage Interests.
4.04. Limitation on Distributions and Withdrawals
for Series III Members.
(a) Distributions and permitted withdrawals from
Series III are subject to the provision by Series III for (i) all
liabilities of Series III in accordance with the Act and (ii) reserves
for liabilities taken in accordance with Section 3.08 hereof. The unused
portion of any reserve shall be distributed, with interest at a rate equal to
the coupon equivalent yield on 13-week U.S. Treasury bills (adjusted
quarterly), as determined by the Managing Member, after the Managing Member has
determined that the need therefor shall have ceased.
(b) The Managing Member may not withdraw any of
its Series III Capital Contribution prior to the termination of Series III.
4.05. Limitation on Distributions and Withdrawals
for Series IV Members.
(a) Distributions and permitted withdrawals from
Series IV are subject to the provision by Series IV for (i) all
liabilities of Series IV in accordance with the Act and (ii) reserves
for liabilities taken in accordance with Section 3.08 hereof.
(b) The Managing Member may not withdraw any of
its Series IV Capital Contribution prior to termination of Series IV.
(c) Distributions may only be made from Series IV
to a Series IV Member (other than a Series IV Member who is a Ramius
Key Principal) as such interests in Series IV vest in accordance with the
terms of the grants establishing such interests in Series IV.
(d) Distributions may only be made from Series IV
to a Series IV Member who is a Ramius Key Principal (i) with respect
to 50% of a Ramius Key Principals interests in Series IV, the date that
is 30 months after the date of this Agreement, (ii) with respect to the
remaining interests of a Ramius Key Principal in Series IV, the date that
is 36 months after the date of this Agreement and (iii), upon the election of
the Managing Member, on or after such time as BA Alpine Holdings and its
affiliates beneficially own less than 4.9% of the outstanding common stock of
New Parent; provided, however, that each Series IV Member who is a Ramius
Key Principal shall be entitled to receive distributions from Series IV at
the time such Series IV Members interests in Series IV vest to the
extent necessary to provide for the payment of any taxes that are due and
payable on account of the vesting of such interests in Series IV.
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(e) If any interests in Series IV are
forfeited in accordance with terms of the grant agreements pursuant to which
they were granted, the shares of New Parent Common Stock underlying such
forfeited interests in Series IV shall be allocated to the Series in
proportion to each Series pro rata share of the Percentage Interest of the
Company.
4.06. Dividends on New Parent Common Stock. Subject to Section 4.02(a), 4.03(a),
4.04(a) and 4.05(a), whichever is applicable, in the event that New Parent
declares and pays a cash dividend on the shares of New Parent Common Stock, the
Company and Series I shall cause the dividends paid on the shares of New
Parent Common Stock held by Series I, and the Company and each of Series II
and Series III may cause the dividends paid on the shares held by Series II
and III, to be distributed to the Members of the applicable Series in
accordance with their respective Series Percentage Interests in respect of
such Series, net of any applicable withholding tax.
4.07. Obligation
to Make Distributions.
Notwithstanding anything herein to the contrary, the obligation to make
any sales or distributions of New Parent Common Stock hereunder is subject in
all respects to (i) there being an effective registration statement in
place with respect to the shares of New Parent Common Stock to be sold or
distributed or (ii) such sales or distributions of such shares of New
Parent Common Stock being otherwise exempt from registration under the
Securities Act of 1933, as amended.
ARTICLE V
RESTRICTIONS ON TRANSFER;
ADMISSION OF ADDITIONAL OR SUBSTITUTE MEMBERS
5.01. Restrictions on Transfer.
(a) No
Member shall have the right to sell, assign, pledge, transfer or otherwise
dispose of all or any part of his interest in the Company or any Series,
directly or indirectly, without the consent of the Managing Member, which shall
not be unreasonably withheld; provided, however, that, subject to a
determination by the Managing Member that such transfer would not cause the
Company or any Series to be treated as a publicly traded partnership, (i) a Member may assign all or any part
of his interest in the Company or any Series to any members of his
immediate family or trusts established for their exclusive benefit or any
Affiliate all of the outstanding equity interests of which are owned, directly
or indirectly, by the Member, by any person which directly or indirectly wholly
owns the Member or by members of his immediate family or trusts established for
their exclusive benefit, so long as the assignment has no adverse tax
consequences to the Company, the applicable Series or the other Members
(provided that a Ramius Key Principal shall only be entitled to make a transfer
pursuant to this clause (i) in a non-cash transaction for estate planning
purposes), (ii) a BHC Member may, at any time, transfer a portion of its Series I
Percentage Interest to the extent necessary to prevent such BHC Member from having an aggregate Percentage Interest
in the Company (including any Limited-Voting Interest) in excess of 33.33% or
otherwise being in violation of the BHC Act or other federal, state or foreign
banking law (in such Members sole discretion); and (iii) a Series I
Member (other than the Managing Member) may, in non-market private sale
transactions, sell or transfer all or any part of its Series I Percentage
Interest to third party investors (Third Party Investors) that agree to
become Members subject to this Agreement; provided that, without the
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consent of the
Managing Member, no such private sale transactions, individually or in the
aggregate, shall result in any Third Party Investor and its Affiliates
beneficially owning in excess of 10% of the outstanding shares of Class A
Common Stock of New Parent as of the completion of such transaction. Any transferee of Interests in the Company
shall become entitled to the rights of the transferor hereunder; provided that
the rights under the covenants in Sections 2.08 (other than 2.08(e)) shall not
be assignable to a transferee other than an Affiliate of the transferor. Any purported sale, pledge, assignment,
transfer or other disposition of all or any part of an interest in the Company
or any Series in violation of this Section 5.01 shall be null and void
and of no force and effect.
(b) Notwithstanding
anything to the contrary in this Agreement, commencing the day after the six
month anniversary of this Agreement, a Series I Member shall be entitled
to sell, assign, pledge, transfer or otherwise dispose of all or any part of
his interest in the Company or any Series so long as, following such sale,
assignment, transfer or other disposition, such Series I Member together
with its Affiliates and permitted third-party transferees under the Exchange
Agreement and Section 5.01(a) hereof retain beneficial ownership of
at least fifty percent (50%) of the sum of (x) the New Parent Common Stock
constituting the aggregate Capital Contribution of the Series I Members to
Series I and (y) the New Parent Common Stock constituting Exchange
Consideration under the Exchange Agreement (as adjusted for stock splits,
consolidations, recapitalizations, reorganizations, mergers and similar events
affecting the New Parent capital stock).
Following the second anniversary of the date of this Agreement, the
transfer restrictions set forth in this Section 5.01 with respect to Series I
Members shall cease to apply. In
addition, any such transfer restrictions under this Section 5.01 shall
terminate and cease to apply following a Lock-up Termination Event.
(c) The
Managing Member will not consent to the amendment of this Section 5.01
with respect to a Ramius Key Principal or consent to any transfer of Interests by any Ramius Key Principal without the
prior consent of the Series I Members holding a majority of the Series I
Percentage Interests; provided that the consent of the Series I Members
shall not be required following the earlier of (i) the date that is 36
months after the date of this Agreement and (ii) such time as BA Alpine Holdings
and its affiliates beneficially own less than 4.9% of the outstanding common
stock of New Parent.
(d) Notwithstanding
anything to the contrary in this Agreement, subject to any applicable
provisions of the Insider Trading policy of New Parent, the Series I
Members shall not be restricted from engaging in hedging or derivatives
transactions with respect to New Parent Common Stock.
(e) Subject
to receiving the reports described in Section 4.02(g), BA Alpine Holdings
shall provide written notice to the Managing Member if at any time BA Alpine
Holdings and its affiliates beneficially own, in the aggregate, less than 4.9%
of the outstanding New Parent Common Stock, whether as a result of hedging or
derivatives transactions or otherwise.
5.02. Admission of Additional or Substitute
Members.
(a) No substitute or additional Managing Member
shall be admitted to the
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Company without the unanimous consent of the Members, in their sole
discretion. Except as provided in Section 5.01, no substitute or
additional Member shall be admitted to the Company without the consent of the
Managing Member, in its sole discretion.
The Company will not issue any Series I Interests to any Person or
admit any additional Series I Member without the consent of holders of a
majority of the Series I Interests.
(b) No transferee or other recipient of all or
any portion of an interest in the Company or any Series shall be admitted
as a Member hereunder unless (i) such interest is transferred or granted
in compliance with the applicable provisions of this Agreement and (ii) such
transferee or recipient shall have executed and delivered to the Company a
joinder agreement confirming the agreement of such transferee or recipient to be
bound by all the terms and provisions of this Agreement with respect to the
interest acquired by such transferee or recipient. As promptly as practicable
after the admission of an additional or substitute Member, the books and
records of the Company and the applicable Series shall be changed to
reflect such admission.
ARTICLE VI
WITHDRAWAL, DEATH, PERMANENT DISABILITY, ADJUDICATION OF INCOMPETENCY,
DISSOLUTION, TERMINATION OR BANKRUPTCY
6.01. Withdrawal, Death, Permanent Disability,
Adjudication of Incompetency, Dissolution, Termination or Bankruptcy of a Series III
Member.
(a) As of December 31 of each year, any Series III
Member may withdraw from the Company on at least 90 days notice prior to the
end of the fiscal year subject to Section 4.04.
(b) Upon the withdrawal, death, permanent
disability, adjudication of incompetency, dissolution, termination or
bankruptcy of any Series III Member (an Event), the Series III
Member with respect to whom the Event occurred, or his legal representatives
(the Affected Member), shall have the right to the following payments from Series III:
(i) an amount equal to
33.33% of his Capital Account calculated as of the last day of the fiscal year
during which the Event occurred, payable in cash within three months following
the end of the fiscal year in which the Event occurred, plus
(ii) an amount equal to 50%
of his remaining Capital Account calculated as of the last day of the fiscal
year following the year in which the Event occurred, payable in cash within
three months following the end of such fiscal year, plus
(iii) an amount equal to his
remaining Capital Account calculated as of the last day of the second fiscal
year following the year in which the Event occurred, payable in cash within
three months following the end of such second fiscal year;
provided, however, that the Managing Member,
at its sole discretion, may elect to return the
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affected Members capital on an accelerated
basis. The Managing Member will not
elect to return capital on an accelerated basis without the consent of holders
of a majority of the Series I Interests.
ARTICLE VII
TERMINATION OF THE COMPANY
7.01. Termination of Company. Upon dissolution of the Company or
termination of a Series (whichever is being dissolved or terminated) (i) the
Company and/or the applicable Series shall be liquidated in an orderly
manner. The Managing Member shall be the liquidator to wind up the affairs of
the Company or a Series pursuant to this Agreement. If there shall be no
Managing Member, Members having aggregate Percentage Interests of greater than
50% may approve one or more
liquidators to act as the liquidator of the Company or a Series generally
in carrying out such liquidation. In performing its duties, the liquidator is
authorized to sell, distribute, exchange or otherwise dispose of the assets of
the Company or the applicable Series in accordance with the Act and in any
reasonable manner that the liquidator shall determine to be in the best interest
of the Members (or, as applicable, the Members holding interests in the
dissolved Series). After payment of the
expenses of winding up, liquidation and dissolution of the Company or the
applicable Series, all of the remaining assets of the Company and/or the
applicable Series shall be applied in the following order:
(a) to creditors of the Company and/or the
applicable Series, including Members (to the extent otherwise permitted by
law), in the order of priority as provided by law; and
(b) to all Members of the Company or Members
holding interests in the applicable Series in accordance with their
respective Capital Accounts.
Any Net Profits or Net Losses attributable to
the termination of the Company shall be allocated among the Members in accordance
with Section 3.07 hereof.
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments. (a) The terms and provisions of this
Agreement may be modified or amended at any time and from time to time by the
Managing Member and Members holding a majority of the Percentage Interests of
the Members; provided that any change to the purpose of the Company shall also
require the consent of the Members of each Series holding a majority of
the Series Percentage Interest of such Series; and provided, further, that
the terms and provisions of this Agreement, as they pertain only to any one or
more Series, may be modified or amended at any time and from time to time by
the Managing Member and Series Members in respect of such Series holding
a majority of the Series Percentage Interests in respect of such
Series. Notwithstanding the foregoing,
the Managing Member shall have the right to effect immaterial or insubstantial
amendments to this Agreement without the consent of any of the other Members,
or a change that does not adversely affect the other Members in any material
respect (excluding changes to the purpose of the Company which shall remain
subject to the foregoing consent rights in all respects) or reflects additional
Capital Contributions to the Company (whether from
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an existing or new Member); provided that the Managing Member provides
to all Members any such amendment at least five (5) days prior to the
effective date of such amendment.
(b) Notwithstanding the foregoing, no amendment
shall be permitted which would (i) increase the liability of any Member, (ii) modify
the allocations or distributions to which any Member is entitled (other than
changes to Percentage Interests or Series Percentage Interests based on
the amount of any Capital Contribution), (iii) further restrict the
transferability of any Members interest, (iv) modify the provisions of
the Agreement (x) in a manner adverse to BA Alpine Holdings in any
material respect or (y) specifically applicable to any BHC Member or BA
Alpine Holdings, (v) modify this Section 8.01, or (vi) modify
the voting rights expressly reserved for the Series I Members hereunder,
in each case without the prior written consent of the Member adversely affected
thereby or, in the case of clause (vi), the consent of the Series I
Members holding a majority of the Series I Percentage Interests.
8.02. Fiscal Year. The Companys and each Series fiscal year
shall end on December 31.
8.03. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware, all
rights and remedies being governed by said laws. If any provision of this
Agreement conflicts with a default rule under the Act, this Agreement
shall govern.
8.04. Books and Records. The books and records of the Company and each
Series, and a list of the names and residence, business or mailing addresses, Series Percentage
Interests, Percentage Interests and Capital Contributions of all Members, shall
be maintained at the principal executive offices of the Company. Each Member shall have the right to obtain
from the Company from time to time, upon reasonable demand for any purpose
reasonably related to the Members interest as a Member of the Company or a
Series, the books and records of the Company and each Series with which
such Member is associated and such other information concerning its business,
properties and personnel as such Member may reasonably request. Any demand by a Member pursuant to this Section 8.04
shall be in writing and shall state the purpose of such demand. The Company and each Series may maintain
such other books and records and may provide such financial or other statements
as the Managing Member in its discretion deems advisable. Notwithstanding anything to the contrary in
this Agreement, the Managing Member may restrict access to its books and
records to the extent necessary to comply with any confidentiality restrictions
or agreements to which it is subject.
8.05. Recapitalizations,
Exchanges, Etc. Affecting Interests, New Parent Common Stock. The Managing Member shall cause, and shall
use its reasonable best efforts to cause New Parent to cause, the provisions of
this Agreement to apply to the full extent set forth herein with respect to the
interests of the Company and
to shares of New Parent Common Stock, as applicable, and to any and all equity
interests in the Company or New Parent, as applicable, or any successor or
assign of the Company or New Parent, as applicable, (whether by merger, consolidation,
sale of assets or otherwise) which may be issued in respect of, in exchange
for, or in substitution of the interests of the Company or the shares of New
Parent Common Stock, as applicable, by reason of any stock dividend, stock
split, stock issuance, reverse stock split, combination, recapitalization,
reclassification, merger, consolidation, judicially imposed restatement of this
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Agreement or
otherwise; provided, however, that after such transaction the stockholders of
New Parent or its successor or the Members of the Company or its successor,
such stockholders or Members, as applicable are substantially the same as
immediately prior to such transaction.
Upon the occurrence of any such events, amounts hereunder shall be
appropriately adjusted and the rights of BA Alpine Holdings and its permitted
transferees hereunder preserved.
Remainder of Page Intentionally Left
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IN WITNESS WHEREOF,
the parties hereto have executed the Limited Liability Company Agreement as of
the 2nd day of November, 2009.
MANAGING MEMBER:
C4S & Co., L.L.C.
By:
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/s/ Peter A. Cohen
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Name:
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Peter A. Cohen
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Title:
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Managing Member
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SIGNATURE PAGE FOR FOURTH AMENDED AND
RESTATED LIMITED LIABILITY COMPANY AGREEMENT
NON-MANAGING MEMBER:
BA ALPINE HOLDINGS, INC.
By:
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/s/ Gavin Burke
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Name:
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Gavin Burke
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Title:
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Managing Director
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By:
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/s/ John Gallagher
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Name:
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John Gallagher
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Title:
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Managing Director - POA
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SIGNATURE PAGE FOR FOURTH AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT