UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| For the Fiscal Year Ended December 31, 2013 |
OR
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission File Number 001-33805
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
(Exact Name of Registrant as Specified in its Charter)
Delaware | | 26-0354783 |
(State of Incorporation) | | (I.R.S. Employer Identification Number) |
9 West 57th Street, New York, New York 10019
(Address of Principal Executive Offices)
Registrant’s telephone number: (212) 790-0041
Securities registered pursuant to Section 12(b) of the Act:
Class A Shares | | New York Stock Exchange |
(Title of each class) | | (Name of each exchange on which registered) |
Securities registered pursuant to Section 12(b) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes þ No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes þ No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act:
Large accelerated filer þ | | Accelerated filer ¨ | | Non-accelerated filer ¨ | | Smaller reporting company ¨ |
| | | | (Do not check if a smaller
reporting company) | | |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No þ
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant as of June 30, 2013 was approximately $1.5 billion. As of March 13, 2014, there were 170,551,300 Class A Shares and 301,884,116 Class B Shares outstanding.
Documents Incorporated by Reference
Portions of the definitive proxy statement for the 2014 annual meeting of Och-Ziff Capital Management Group LLC’s shareholders to be filed pursuant to Regulation 14A are incorporated by reference into Part III of this Form 10-K.
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
TABLE OF CONTENTS
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Available Information
Och-Ziff Capital Management Group LLC files annual, quarterly and current reports, proxy statements and other information required by the Securities Exchange Act of 1934, as amended, which we refer to as the “Exchange Act,” with the Securities and Exchange Commission, which we refer to as the “SEC.” We make available free of charge on our website (www.ozcap.com) our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, proxy statements and any amendments to those filings as soon as reasonably practicable after such material is electronically filed with or furnished to the SEC. Also posted on our website in the “Class A Shareholders – Corporate Governance” section are charters for our Audit Committee; Compensation Committee; and Nominating, Corporate Governance and Conflicts Committee, as well as our Corporate Governance Guidelines and Code of Business Conduct and Ethics governing our directors, officers and employees. Information on, or accessible through, our website is not a part of, and is not incorporated into, this report or any other SEC filing. Copies of our SEC filings or corporate governance materials are available without charge upon written request to Och-Ziff Capital Management Group LLC, 9 West 57th Street, New York, New York 10019, Attention: Office of the Secretary.
Any materials we file with the SEC are also publicly available through the SEC’s website (www.sec.gov) or may be read and copied at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, DC 20549. Information on the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330.
In this annual report, references to “Och-Ziff,” “our Company,” “the Company,” “the firm,” “we,” “us,” or “our” refer, unless the context requires otherwise, to Och-Ziff Capital Management Group LLC, a Delaware limited liability company, and its consolidated subsidiaries, including the Och-Ziff Operating Group. References to the “Och-Ziff Operating Group” refer, collectively, to OZ Management LP, a Delaware limited partnership, which we refer to as “OZ Management,” OZ Advisors LP, a Delaware limited partnership, which we refer to as “OZ Advisors I,” OZ Advisors II LP, a Delaware limited partnership, which we refer to as “OZ Advisors II,” and their consolidated subsidiaries. References to our “intermediate holding companies” refer, collectively, to Och-Ziff Holding Corporation, a Delaware corporation, which we refer to as “Och-Ziff Corp,” and Och-Ziff Holding LLC, a Delaware limited liability company, which we refer to as “Och-Ziff Holding,” both of which are wholly owned subsidiaries of Och-Ziff Capital Management Group LLC.
References to our “executive managing directors” refer to the current limited partners of the Och-Ziff Operating Group entities other than the Ziffs and our intermediate holding companies, including our founder, Mr. Daniel S. Och, and, except where the context requires otherwise, include certain limited partners who are no longer active in the business of the Company. References to our “active executive managing directors” refer to executive managing directors who remain active in our business and certain employees with the title executive managing director. References to the “Ziffs” refer collectively to Ziff Investors Partnership, L.P. II and certain of its affiliates and control persons.
References to “Class A Shares” refer to our Class A Shares, representing Class A limited liability company interests of Och-Ziff Capital Management Group LLC, which are publicly traded and listed on the New York Stock Exchange, which we refer to as the “NYSE.” References to “Class B Shares” refer to Class B Shares of Och-Ziff Capital Management Group LLC, which are not publicly traded, are currently held solely by our executive managing directors and have no economic rights but entitle the holders thereof to one vote per share together with the holders of our Class A Shares.
References to our “IPO” refer to our initial public offering of 36.0 million Class A Shares that occurred in November 2007. References to the “2007 Offerings” refer collectively to our IPO and the concurrent private offering of approximately 38.1 million Class A Shares to DIC Sahir Limited, a wholly owned subsidiary of Dubai International Capital LLC, which we refer to as “DIC.” References to the “Reorganization” refer to the reorganization of our business prior to the 2007 Offerings. References to the “2011 Offering” refer to our public offering of 33.3 million Class A Shares in November 2011.
References to “our funds” or the “Och-Ziff funds” refer to the multi-strategy funds, credit funds, collateralized loan obligations (“CLOs”), real estate funds and other alternative investment vehicles for which we provide asset management services. References to “Special Investments” refer to investments that we, as investment manager, believe lack a readily ascertainable market value, are illiquid or should be held until the resolution of a special event or circumstance.
No statements herein, available on our website or in any of the materials we file with the SEC constitute, or should be viewed as constituting, an offer of any Och-Ziff fund.
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Forward-Looking Statements
Some of the statements under “Item 1. Business,” “Item 1A. Risk Factors,” “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which we refer to as “MD&A,” “Item 7A. Quantitative and Qualitative Disclosures About Market Risk” and elsewhere in this annual report may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, which we refer to as the “Securities Act,” and Section 21E of the Exchange Act that reflect our current views with respect to, among other things, future events and financial performance. We generally identify forward-looking statements by terminology such as “outlook,” “believe,” “expect,” “potential,” “continue,” “may,” “will,” “should,” “could,” “seek,” “approximately,” “predict,” “intend,” “plan,” “estimate,” “anticipate,” “opportunity,” “comfortable,” “assume,” “remain,” “maintain,” “sustain,” “achieve,” “see,” “think,” “position” or the negative version of those words or other comparable words.
Any forward-looking statements contained herein are based upon historical information and on our current plans, estimates and expectations. The inclusion of this or other forward-looking information should not be regarded as a representation by us or any other person that the future plans, estimates or expectations contemplated by us will be achieved.
We caution that forward-looking statements are subject to numerous assumptions, estimates, risks and uncertainties, including but not limited to the following: global economic, business, market and geopolitical conditions, including Euro-zone sovereign debt issues; U.S. and foreign regulatory developments relating to, among other things, financial institutions and markets, government oversight, fiscal and tax policy; conditions impacting the alternative asset management industry; our ability to successfully compete for fund investors, assets, professional talent and investment opportunities; our ability to retain our active executive managing directors, managing directors and other investment professionals; our successful formulation and execution of our business and growth strategies; our ability to appropriately manage conflicts of interest and tax and other regulatory factors relevant to our business; and assumptions relating to our operations, investment performance, financial results, financial condition, business prospects, growth strategy and liquidity.
If one or more of these or other risks or uncertainties materialize, or if our assumptions or estimates prove to be incorrect, our actual results may vary materially from those indicated in these statements. These factors are not and should not be construed as exhaustive and should be read in conjunction with the other cautionary statements and risks that are included in our filings with the SEC, including but not limited to those described in “Item 1A. Risk Factors.”
There may be additional risks, uncertainties and factors that we do not currently view as material or that are not known. The forward-looking statements contained in this annual report are made only as of the date of this report. We do not undertake to update any forward-looking statement because of new information, future developments or otherwise.
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PART I
Business Description
Founded in 1994 by Daniel S. Och, we are one of the largest institutional alternative asset managers in the world, with approximately $42.3 billion in assets under management as of March 1, 2014. We serve the investment needs of a diversified institutional base, providing asset management services through our funds, which pursue a broad range of global investment opportunities. We currently manage multi-strategy funds, credit funds, CLOs, real estate funds and other alternative investment vehicles.
We have always focused on establishing long-term relationships with a global base of institutional investors, which today includes many of the largest, most sophisticated investors in the world. These include pension funds, fund-of-funds, foundations and endowments, corporations and other institutions, private banks and family offices. Our fund investors value our funds’ consistent performance history, our global investing expertise, and our diverse investment strategies, combined with our strong focus on risk management and sustaining a robust operational infrastructure. Our funds make investments in many regions around the world with a breadth we believe is offered by few alternative asset management firms.
We have built an experienced investment management team around the world. As of December 31, 2013, we had 546 employees worldwide, including 148 investment professionals and 24 active executive managing directors, working from our headquarters in New York City and offices in London, Hong Kong, Mumbai, Beijing and Dubai. Our London office houses our European investment team and our Hong Kong office houses the majority of our Asian investment team.
We conduct substantially all of our operations through our only reportable segment under GAAP, the Och-Ziff Funds segment, which provides asset management services to our multi-strategy funds, credit funds, CLOs and other alternative investment vehicles. Other Operations are primarily comprised of our real estate business, which provides asset management services to our real estate funds. See Note 16 to our consolidated financial statements included in this annual report for additional information regarding the Och-Ziff Funds segment.
Our primary sources of revenues are management fees, which are based on the amount of our assets under management, and incentive income, which is based on the investment performance of our funds. Accordingly, for any given period, our revenues will be driven by the combination of assets under management and the investment performance of the Och-Ziff funds.
Funds Overview
Our assets under management are generally invested on a multi-strategy basis, across multiple geographies, although certain of our funds are focused on specific strategies and geographies. We have always limited our use of leverage to generate investment performance, with an emphasis on preservation of capital.
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The following chart presents the composition of our assets under management by fund as of December 31, 2013:
The following chart presents the composition of our assets under management by geography as of January 1, 2014(1):
(1) | The North American exposure includes the United States, Canada, Central America and South America. The European exposure includes Africa and the Middle East. The Asian exposure includes Australia and New Zealand. |
Multi-Strategy Funds
As of December 31, 2013, we managed approximately $31.8 billion of assets under management in our multi-strategy funds, or 79% of our total assets under management. These funds seek to generate consistent, positive, absolute returns across market cycles, with low volatility compared to the equity markets.
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Our three main multi-strategy funds are described below. As of December 31, 2013, these funds comprised approximately 70% of our assets under management.
• | OZ Master Fund is our flagship, global, multi-strategy fund. The OZ Master Fund opportunistically allocates capital between the underlying investment strategies described below in North America, Europe and Asia. The OZ Master Fund’s European and Asian investments mirror those made in the OZ Europe Master Fund and the OZ Asia Master Fund, respectively. As of January 1, 2014, the OZ Master Fund’s geographic allocation was 65% in North America, Central America and South America, 19% in Europe, Africa and the Middle East and 16% in Asia, Australia and New Zealand. |
• | OZ Europe Master Fund is a multi-strategy fund that opportunistically allocates capital between the underlying investment strategies described below in Europe, Africa and the Middle East. |
• | OZ Asia Master Fund is a multi-strategy fund that opportunistically allocates capital between the underlying investment strategies described below in Asia, Australia and New Zealand. |
The portfolio composition of our multi-strategy funds is determined by evaluating what we believe are the best market opportunities for each fund, consistent with each fund’s goal of diversification and capital preservation. The primary investment strategies we employ in these funds include the following:
• | Convertible and derivative arbitrage, which takes advantage of price discrepancies between convertible and derivative securities and the underlying equity or other security. These investments may be made at multiple levels of an entity’s capital structure to profit from valuation or other pricing discrepancies; |
• | Corporate credit, which includes a variety of credit-based strategies, such as high-yield debt investments in distressed businesses and investments in bank loans and senior secured debt. Corporate credit also includes providing mezzanine financing and structuring creative capital solutions; |
• | Long/short equity special situations, which consists of fundamental long/short and event-driven investing. Fundamental long/short investing involves analyzing companies and assets to profit where we believe mispricing or undervaluation exists. Event-driven investing attempts to realize gain from corporate events such as spin-offs, recapitalizations and other corporate restructurings, whether company specific or as a result of industry or economic conditions; |
• | Merger arbitrage, which is an event-driven strategy involving multiple investments in entities contemplating a merger or similar business combination. This strategy seeks to realize a profit from pricing discrepancies among the securities of the entities involved in the event; |
• | Private investments, which encompasses investments in a variety of special situations that seek to realize value through strategic sales or initial public offerings; and |
• | Structured credit, which involves investments in residential and commercial mortgage-backed securities and other asset-backed securities. This strategy also includes investments in collateralized loan obligations and collateralized debt obligations. |
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The chart below presents the composition, by strategy (excluding residual assets attributable to redeeming investors), of the OZ Master Fund as of January 1, 2014, which represents the majority of our assets under management.
Credit Funds
As of December 31, 2013, we managed approximately $4.4 billion of assets under management in our dedicated credit funds. These funds make investments in a broad range of structured and corporate credit assets, primarily in the United States and Europe. The investment professionals who manage the structured and corporate credit strategies in our multi-strategy funds also manage our dedicated credit funds, enabling our investors to take advantage of our investment expertise in these asset classes. The investment process for these funds follows the same research-driven investment process that is pursued in our other investment strategies.
CLOs
As of December 31, 2013, we managed approximately $2.6 billion of assets under management in our CLOs. CLOs are collateralized financing vehicles that issue notes to investors and use those proceeds to acquire various types of credit-related investments that serve as collateral for the notes. The more senior notes have a stated interest rate and interest is due periodically, while the most subordinated notes have no stated interest rate but are entitled to any of the excess cash flows from the underlying collateral after fees and expenses.
Real Estate Funds
As of December 31, 2013, we managed approximately $840.4 million of assets under management in our real estate funds. These funds generally make investments in commercial and residential real estate in North America, including real property, multi-property portfolios, real estate related joint ventures, real estate operating companies and other real estate related assets.
Investment Management Process
Our approach to asset management today is based on the same fundamental elements that we have employed since our firm was founded in 1994. Our objectives are to create long-term value for our fund investors by generating consistent, positive, absolute returns while protecting investor capital, and to develop new, carefully considered investment opportunities. Our extensive experience, combined with the consistency of our approach to investing and risk management, has been integral to extending our performance history. Our investment and risk management processes benefit from our dedicated and experienced investment teams operating out of our offices worldwide. Our portfolio managers, who are active executive managing directors, combine qualitative judgment gained from their extensive experience with quantitative analysis in order to effectively manage our investment process.
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Our approach to investing is defined by certain common elements:
• | Consistent, positive, absolute returns. Our investment process focuses on generating consistent, positive, absolute returns across market cycles with low volatility compared to the broader markets. Our goal is to preserve capital during periods of market decline and produce competitive investment performance in rising markets. We seek to generate fund returns without relying on asset concentration or market direction. |
• | Multi-strategy approach. Our funds invest across multiple strategies and geographies, with no predetermined commitments of capital. Portfolio composition is determined by selecting what we believe are the best market opportunities, consistent with the investment objectives for each of our funds. Our ability to invest in multiple strategies worldwide enables us to adjust our portfolio allocations as market conditions change. |
• | Focus on fundamentals. We approach investments in each of our strategies through rigorous fundamental analysis of the drivers of potential investment risk and return. We look at both qualitative and quantitative factors in assessing the risk/reward parameters and perform extensive due diligence. |
• | Limited use of leverage. Our funds generally do not rely on extensive leverage to generate investment returns. Our approach to risk management limits the amount of leverage we employ on a portfolio-wide basis. |
• | Disciplined investment and risk management processes. Our investment and risk management processes are central to the way we allocate capital. We focus on hedging and actively managing the exposures of our portfolios. Our risk management practices are based on both quantitative and qualitative analyses implemented at both the individual position and total portfolio levels, and they have been integrated into our daily investment process. |
Portfolio Risk Management
Risk management is central to the investment process for all our portfolios. We use both quantitative and qualitative analyses to monitor financial and event risk and manage volatility. We may seek to hedge credit, interest rate, currency and market exposures; however, there can be no assurances that appropriate hedges will be available or in place to successfully limit losses. We place substantial emphasis on portfolio diversification by asset class, industry sector and geography. The active management of positions in our funds allows for timely reallocation of capital in response to changes in business, market or economic conditions.
Our Risk Committee oversees our risk management processes. The Risk Committee meets regularly to review, among other information, sophisticated risk analysis, including the results of stress testing our portfolios under numerous scenarios. The Risk Committee also considers other general risks, including, but not limited to, global economic, geopolitical, counterparty and operational risks. Additionally, our portfolio managers meet with our analysts daily to review inherent risks associated with the individual positions in each fund.
Risk management is also central to how we manage the operations of our business. We actively manage the operational risks of our business, including liquidity, counterparty exposures, legal and reputational risks.
Investment Performance
We believe one of the principal drivers of our ability to increase assets under management has been the investment performance track record of our funds. Our historical ability to generate consistent, absolute returns with limited use of leverage and low volatility compared to the equity markets, combined with our ability to preserve fund capital when markets decline, are hallmarks of our investment approach. We also believe that these attributes are key points of competitive differentiation for us.
The historical and potential future returns of the funds we manage are not directly linked to returns on our Class A Shares; therefore, positive investment performance of the funds we manage may not necessarily correspond to positive returns on an investment in our Class A Shares. Poor performance of the funds that we manage, however, would cause a decline in our revenues from those funds, which may have a negative effect on the returns on an investment in our Class A Shares. An investment in our Class A Shares is not an investment in any of the Och-Ziff funds. See “Item 1A. Risk Factors—Risks Related to Our Business—An investment in our Class A Shares is not an alternative to an investment in any of our funds, and the returns of our funds should not be considered as indicative of any returns expected on our Class A Shares, although poor investment performance of, or lack of capital flows into, the funds we manage could have a materially adverse impact on our revenues and, therefore, the value of our Class A Shares.”
Moreover our funds’ historical returns reflect investment opportunities and general global economic and market conditions that may not repeat themselves, and the rates of return also reflect our funds’ historical expenses, which may vary in the future due to factors beyond our control, including changes in applicable law. See “Item 1A. Risk Factors—Risks Related to Our Funds—The historical returns attributable to our funds should not be considered as indicative of the future results of our funds or any future funds we may raise.”
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The table below sets forth, as of December 31, 2013, the net annualized return, volatility and Sharpe Ratio of the OZ Master Fund, the Och-Ziff Multi-Strategy Composite (as defined below), the S&P 500 Index and the MSCI World Index, and is provided for illustrative purposes only. The OZ Master Fund includes every strategy and geography in which the Och-Ziff funds invest and constituted approximately 63% of our assets under management as of December 31, 2013. Our other funds implement geographical or strategy focused investment programs. The investment performance for our other funds varies from those of the OZ Master Fund, and that variance may be material. The performance reflected in the table below is not necessarily indicative of the future results of the OZ Master Fund. There can be no assurance that any Och-Ziff fund will achieve comparable results.
Past performance is no indication or guarantee of future results.
Net Annualized Return through December 31, 2013 | | 1 Year | | | 3 Years | | | 5 Years | | | Since OZ Master Fund Inception (January 1, 1998) | | | Since Och-Ziff Multi-Strategy Composite Inception (April 1, 1994) | |
OZ Master Fund Composite1 | | | 13.90% | | | | 8.14% | | | | 11.06% | | | | 9.91% | | | n/a | |
Och-Ziff Multi-Strategy Composite2 | | | 13.90% | | | | 8.14% | | | | 11.06% | | | | 9.91% | | | | 13.22% | |
S&P 500 Index3 | | | 32.39% | | | | 16.18% | | | | 17.94% | | | | 6.03% | | | | 9.56% | |
MSCI World Index3 | | | 29.57% | | | | 12.76% | | | | 14.93% | | | | 5.26% | | | | 7.28% | |
| | | | | | | | | | | | | | | | | | | | |
Volatility - Standard Deviation (Annualized)4 | | | | | | | | | | | | | | | | | | | | |
OZ Master Fund Composite1 | | | 2.90% | | | | 3.44% | | | | 3.82% | | | | 4.95% | | | n/a | |
Och-Ziff Multi-Strategy Composite2 | | | 2.90% | | | | 3.44% | | | | 3.82% | | | | 4.95% | | | | 5.37% | |
S&P 500 Index3 | | | 8.48% | | | | 12.11% | | | | 15.81% | | | | 15.94% | | | | 15.24% | |
MSCI World Index3 | | | 8.28% | | | | 11.66% | | | | 14.47% | | | | 15.06% | | | | 14.34% | |
| | | | | | | | | | | | | | | | | | | | |
Sharpe Ratio5 | | | | | | | | | | | | | | | | | | | | |
OZ Master Fund Composite1 | | | 4.72 | | | | 2.30 | | | | 2.83 | | | | 1.44 | | | n/a | |
Och-Ziff Multi-Strategy Composite2 | | | 4.72 | | | | 2.30 | | | | 2.83 | | | | 1.44 | | | | 1.84 | |
S&P 500 Index3 | | | 3.80 | | | | 1.32 | | | | 1.12 | | | | 0.20 | | | | 0.41 | |
MSCI World Index3 | | | 3.55 | | | | 1.08 | | | | 1.01 | | | | 0.17 | | | | 0.28 | |
(1) | The returns shown represent the composite performance of all feeder funds that comprise the OZ Master Fund since the inception of the OZ Master Fund on January 1, 1998 (collectively, the “Master Fund Composite”). The Master Fund Composite is calculated using the total return of all feeder funds net of all fees and expenses (except incentive income on unrealized gains attributable to investments that the Company, as investment manager, determines lack a readily ascertainable fair value, are illiquid or otherwise should be held until the resolution of a special event or circumstance (“Special Investments”) that could reduce returns on these investments at the time of realization), and includes the reinvestment of all dividends and other income. Performance includes realized and unrealized gains and losses attributable to Special Investments and initial public offering investments that are not allocated to all investors in the feeder funds. Investors that were not allocated Special Investments and/or initial public offering investments may experience materially different returns. The Master Fund Composite is not available for direct investment. |
(2) | The Och-Ziff Multi-Strategy Composite (the “Multi-Strategy Composite”) is provided as supplemental information to the Master Fund Composite. The Multi-Strategy Composite represents the composite performance of all accounts that were managed in accordance with our broad multi-strategy mandate that were not subject to portfolio investment restrictions or other factors that limited our investment discretion since our inception on April 1, 1994. Performance is calculated using the total return of all such accounts net of all investment fees and expenses of such accounts, except incentive income on unrealized gains attributable to Special Investments that could reduce returns in these investments at the time of realization, and the returns include the reinvestment of all dividends and other income. For the period from April 1, 1994 through December 31, 1997, the returns are gross of certain overhead expenses that were reimbursed by the accounts. Such reimbursement arrangements were terminated at the inception of the OZ Master Fund on January 1, 1998. The size of the accounts comprising the composite during the time period shown vary materially. Such differences impacted our investment decisions and the diversity of the investment strategies we followed. Furthermore, the composition of the investment strategies we follow are subject to our discretion and have varied materially since inception and are expected to vary materially in the future. |
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(3) | These comparisons show the returns of the S&P 500 Index (SPTR) and the MSCI World Index (GDDLWI) (the “Broader Market Indices”) against the Master Fund Composite and the Multi-Strategy Composite. These comparisons are intended solely for illustrative purposes to show a historical comparison of the Master Fund Composite and the Multi-Strategy Composite to the broader equity markets, as represented by the Broader Market Indices, and should not be considered as an indication of how the OZ Master Fund or the feeder funds will perform relative to the Broader Market Indices in the future. The Broader Market Indices are not performance benchmarks of the OZ Master Fund or the feeder funds. Neither the OZ Master Fund nor the feeder funds are managed to correlate in any way with the returns or composition of the Broader Market Indices, which are unmanaged. It is not possible to invest in an unmanaged index. You should not assume that there is any material overlap between the securities underlying the Master Fund Composite or the Multi-Strategy Composite and those that comprise the Broader Market Indices. The S&P 500 Index is an equity index owned and maintained by Standard & Poor’s, a division of McGraw-Hill, whose value is calculated as the free float-weighted average of the share prices of 500 large-capitalization corporations listed on the NYSE and NASDAQ. The MSCI World Index is a free float-adjusted market capitalization weighted index owned and maintained by MSCI Inc. that is designed to measure the equity market performance of developed markets. Returns of the Broader Market Indices have not been reduced by fees and expenses associated with investing in securities and include the reinvestment of dividends. |
(4) | Standard Deviation is a statistical measure of volatility that measures the fluctuation of the monthly rates of return against the average return. |
(5) | Sharpe Ratio represents a measure of the excess return of a portfolio over the risk-free rate. The Sharpe Ratio is calculated by subtracting the risk-free rate from the composite returns, and dividing that amount by the standard deviation of the returns. The risk-free rate of return used in computing the Sharpe Ratio is the one-month U.S. dollar London Interbank Offered Rate compounded monthly throughout the periods presented. |
Assets Under Management
Our assets under management are a function of the capital that is placed with us by investors in our funds and the investment performance of our funds. Our ability to generate consistent, positive, absolute returns in rising markets and preserve fund investor capital during periods of market volatility or decline are key determinants of the long-term success of our business. Our investment track record is a key factor that enables us to attract additional assets under management from both existing and new fund investors. Growth in assets under management and positive investment performance by our funds drive growth in our revenues and earnings. Conversely, poor investment performance slows our growth by decreasing our assets under management and increases the potential for redemptions from our funds, which would reduce our assets under management and have a negative effect on our revenues and earnings. For additional information regarding assets under management, please see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Assets Under Management and Fund Performance Information.”
Industry Overview
The asset management business involves investing capital on behalf of institutional and individual investors in exchange for contracted fees and other performance-driven income. The industry invests trillions of dollars of assets and can be broadly divided into two categories: traditional asset management, such as firms that manage open and closed-end mutual funds, and alternative asset management, such as firms that manage hedge funds and private equity funds.
Alternative Asset Management
Alternative asset management, in general, and managing hedge funds specifically, involves a variety of investment strategies where the common element is the manager’s goal of delivering, within certain risk parameters, investment performance that is typically measured on an absolute return basis. This means that performance is measured not by how well a fund performs relative to a benchmark index, but rather by how well the fund performs in absolute terms. Alternative asset managers typically earn management fees based on the value of the assets they manage and incentive income based on the investment performance they generate on those assets. These managers typically run pooled investment vehicles that are not subject to the investment limitations of traditional mutual funds, and may employ a wide variety of strategies to achieve their investment objectives. Alternative asset managers strive to produce positive investment returns with low volatility, regardless of the direction and volatility of the broader capital markets.
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Hedge Funds
The term “hedge funds” generally refers to privately held collective investment vehicles managed by alternative asset managers, such as Och-Ziff. Hedge funds differ from traditional investment vehicles, such as mutual funds, by the strategies they employ and the asset classes in which they invest. Asset classes in which hedge funds may invest are very broad and include liquid and illiquid securities, derivative instruments, asset- and mortgage-backed securities and a variety of other non-traditional assets, such as distressed securities and infrastructure investments, among others. Hedge funds generally have no predetermined investment parameters and are generally not precluded from making large investments that are concentrated by asset class, industry sector, geography or market directionality. Hedge funds are also generally not precluded from employing a variety of instruments, including swaps, options, futures and short sales to mitigate risk or synthetically create investment exposures.
The demand for exposure to alternative asset managers by institutional investors has been the primary driver of the hedge fund industry’s historical growth. Institutional demand has resulted from several factors, including the pursuit of higher absolute returns with low volatility compared to the capital markets, and the desire to diversify investment portfolios. Alternative investment strategies still account for a relatively small portion of all institutional assets, signifying potential opportunity for future growth.
The following table presents the cumulative capital allocated to the hedge fund industry over the last ten years:
Historical Hedge Fund Assets Under Management
(dollars in billions as of December 31)
Source: Hedge Fund Research
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During 2013, hedge fund industry assets under management grew by approximately 17%, driven by a combination of performance-related appreciation and capital net inflows. Capital net inflows increased approximately 85% over those in 2012, and were at the second highest level in the last five years. We believe that strong equity market conditions and improved macroeconomic fundamentals globally caused investor confidence to improve, resulting in higher allocations of new capital to the industry. Additionally, we believe that the demand for alternative asset managers continued to increase as institutional investors remained focused on risk mitigation and downside capital protection in their equity portfolios, and yield enhancement in their fixed income portfolios. Investment performance among hedge funds was positively impacted during 2013 by sharply higher equity markets globally and improved economic fundamentals.
Och-Ziff’s Historical Assets Under Management(1)
(dollars in billions as of December 31)
(1) | Includes investments by us, our executive managing directors, employees and certain other related parties. Prior to our IPO, we did not charge management fees or earn incentive income on these investments. Following our IPO, we began charging management fees and earning incentive income on new investments made in our funds by our executive managing directors and certain other related parties, including the reinvestment by our executive managing directors of the after-tax proceeds from the 2007 Offerings. As of December 31, 2013, approximately 7% of our assets under management represented investments by us, our executive managing directors, employees and certain other related parties in our funds. As of that date, approximately 39% of these affiliated assets under management are not charged management fees and are not subject to an incentive income calculation. For the period from 2003 through 2004, total assets under management do not include assets externally managed by an affiliated investment adviser pursuant to a joint venture arrangement. |
Competitive Environment
The alternative asset management industry is intensely competitive, and we expect that it will remain so. We face competition in all aspects of our business globally. Examples include attracting institutional investors and assets under management, pursuing attractive investment opportunities in all of our underlying strategies and in all geographies, and hiring and retaining professionals in all areas of our business. We compete globally for investment opportunities, investor capital and talent. We face competitors that are larger than we are and have greater financial, technical and marketing resources. Certain of these competitors continue to raise capital to pursue investment strategies that may be similar to ours. Some of these competitors may also have access to liquidity sources that are not available to us, which may pose challenges for us with respect to investment opportunities. In addition, some of these competitors may have higher risk tolerances or make different risk assessments than we do, allowing them to consider a wider variety of investments and establish broader networks of business relationships. Our competitive position depends on our reputation, our investment performance track record, our investment and risk management processes, our ability to continue to offer innovative investment products, the breadth of our infrastructure and our ability to continue to attract and retain qualified employees while managing compensation and other costs. For
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additional information regarding the competitive risks that we face, see “Item 1A. Risk Factors—Risks Related to Our Business—Competitive pressures in the asset management business could materially adversely affect our business, financial condition or results of operations.”
Competitive Strengths
Our business was built on certain fundamental elements that we believe are differentiating competitive strengths. They continue to define Och-Ziff today. As such, we view these elements as important to our ability to retain and attract new assets under management and, over time, increase our market share of new capital flows to the hedge fund industry.
• | Alignment of interests. We structure our business to align our firm’s interests with those of the investors in our funds. Investments by our executive managing directors and employees comprise a meaningful portion of our total assets under management. Additionally, all of our executive managing directors have an ownership interest in the firm and receive distributions that are directly tied to the firm’s profitability or otherwise receive compensation tied to the firm’s profitability. |
• | Employee and executive managing director equity ownership. We have a history of hiring highly talented and experienced employees across all areas of our business, and developing them into senior roles as managing directors and executive managing directors. As of December 31, 2013, we had 24 active executive managing directors, each of whom has an ownership interest in the firm or otherwise receives compensation tied to the firm’s profitability, and 55 managing directors whose compensation structure includes receiving a portion of any bonus compensation in equity that vests over time. We believe the number of senior personnel we have, and their breadth of equity ownership, sets us apart in our industry and ensures the continuity and stability of our firm. |
• | Team-based culture. We evaluate executive managing director and employee contributions, and have designed our compensation structure, based on a “one-firm” approach that encourages internal cooperation and the sharing of ideas. We are a global organization and we have fostered a culture that allows us to allocate capital and evaluate investment opportunities on a firm-wide basis, focusing on the best ideas and opportunities available. This collaborative approach emphasizes the success of our firm as a whole. |
• | Global presence. Our ability to opportunistically invest worldwide is an important element of diversifying our portfolios and managing risk. Our dedicated and experienced investment professionals operate from our offices globally and have a long history of investing on an international scale. |
• | Synergies among investment strategies. �� Our funds invest across a broad range of asset classes and geographies. Our investment professionals have extensive experience and many are specialized by strategy, industry sector or asset class. This fosters consistent interaction among the investment professionals across our strategies and creates synergies that add to our market insight and ability to identify attractive investment opportunities. |
• | Focus on infrastructure. Since our firm’s inception, we have focused on building a robust infrastructure with an emphasis on strong financial, operational and compliance-related controls. As a public company, we are required to identify and document key processes and controls, which are subject to independent review. Additionally, we have added a number of independent, third-party processes to our fund operations that provide independent information to our fund investors. |
• | Transparency. We believe that our fund investors should be provided with qualitative and quantitative information about our investment process, operational procedures and portfolio exposures in order to understand and evaluate our investment performance. We provide our fund investors with comprehensive reporting about each portfolio on a regular basis, and our senior management team and portfolio managers regularly meet with them to address their questions. |
Our Fund Investors
We focus on establishing long-term relationships with a global base of institutional investors, which today encompasses many of the largest, most sophisticated investors in the world. These include pension funds, fund-of-funds, foundations and endowments, corporations and other institutions, private banks and family offices.
Our executive managing directors and employees collectively comprise approximately 7% of our total assets under management as of January 1, 2014. The single largest unaffiliated investor in our funds accounted for approximately 8% of our total assets under management as of January 1, 2014, and the top five unaffiliated fund investors accounted, in the aggregate, for approximately 20%. These percentages exclude the $2.6 billion of assets under management in our CLOs, which are held by various types of investors.
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The chart below presents the composition of our fund investor base by type across our funds (excluding investors in our CLOs) as of January 1, 2014:
The following chart presents the composition of our fund investor base by region across our funds (excluding investors in our CLOs) as of January 1, 2014:
Our Structure
Och-Ziff Capital Management Group LLC
Och-Ziff Capital Management Group LLC is a publicly traded holding company, and its primary assets are ownership interests in the Och-Ziff Operating Group entities, which are held indirectly through two intermediate holding companies, Och-Ziff Corp and Och-Ziff Holding. We conduct substantially all of our business through the Och-Ziff Operating Group.
Och-Ziff Capital Management Group LLC currently has two classes of shares outstanding: Class A Shares and Class B Shares.
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Class A Shares. Class A Shares represent Class A limited liability company interests in Och-Ziff Capital Management Group LLC. The holders of Class A Shares are entitled to one vote per share held of record on all matters submitted to a vote of our shareholders and, as of December 31, 2013, represent 36.0% of our total combined voting power. The holders of Class A Shares are entitled to any distribution declared by our Board of Directors out of funds legally available, subject to any statutory or contractual restrictions on the payment of distributions and to any restrictions on the payment of distributions imposed by the terms of any outstanding preferred shares we may issue in the future. Additional Class A Shares are issuable upon exchange of Och-Ziff Operating Group A Units (as defined below) by our executive managing directors and the Ziffs, as described below, and upon vesting of equity awards granted under our Amended and Restated 2007 Equity Incentive Plan. In the future, we expect to issue additional equity awards relating to Class A Shares under our 2013 Incentive Plan.
Class B Shares. Class B Shares have no economic rights and are not publicly traded, but rather entitle the holders of record to one vote per share on all matters submitted to a vote of our shareholders. The Class B Shares are held solely by our executive managing directors and provide them with a voting interest in Och-Ziff Capital Management Group LLC commensurate with their economic interest in our business in the form of Och-Ziff Operating Group A Units. Each executive managing director holding Och-Ziff Operating Group A Units holds an equal number of Class B Shares. Upon a grant of Och-Ziff Operating Group A Units to an executive managing director, an equal number of Class B Shares is also granted to such executive managing director. Upon the exchange by an executive managing director of an Och-Ziff Operating Group A Unit for a Class A Share as further discussed below, the corresponding Class B Share is canceled. While the Ziffs hold Och-Ziff Operating Group A Units, they do not hold any Class B Shares.
As of December 31, 2013, the Class B Shares represent 64.0% of our total combined voting power. Our executive managing directors have granted an irrevocable proxy to vote all of their Class B Shares to the Class B Shareholder Committee, the sole member of which is currently Mr. Och, as it may determine in its sole discretion. This proxy will terminate upon the later of (i) Mr. Och’s withdrawal, death or disability, or (ii) such time as our executive managing directors hold less than 40% of our total combined voting power. As a result, Mr. Och is currently able to control all matters requiring the approval of our shareholders.
Och-Ziff Operating Group Entities
We conduct substantially all of our business through the Och-Ziff Operating Group. Historically, we have used more than one Och-Ziff Operating Group entity to segregate our operations for business, financial, tax and other reasons. We may increase or decrease the number of our Och-Ziff Operating Group entities and intermediate holding companies based on our views as to the appropriate balance between administrative convenience and business, financial, tax and other considerations.
The Och-Ziff Operating Group currently consists of OZ Management, OZ Advisors I and OZ Advisors II. All of our interests in OZ Management and OZ Advisors I are held through Och-Ziff Corp. All of our interests in OZ Advisors II are held through Och-Ziff Holding. Each intermediate holding company is the sole general partner of the applicable Och-Ziff Operating Group entity and, therefore, generally controls the business and affairs of such entity. All of the equity interests in the Och-Ziff Operating Group are represented by Och-Ziff Operating Group A Units and Och-Ziff Operating Group B Units.
The Och-Ziff Operating Group A Units and Och-Ziff Operating Group B Units have no preference or priority over other securities of the Och-Ziff Operating Group (other than the Och-Ziff Operating Group D Units to the extent described below) and, upon liquidation, dissolution or winding up, will be entitled to any assets remaining after payment of all debts and liabilities of the Och-Ziff Operating Group (together with the Och-Ziff Operating Group D Units to the extent described below).
Och-Ziff Operating Group A Units. Prior to the 2007 Offerings, our executive managing directors and the Ziffs collectively held all of the interests in the Och-Ziff Operating Group. As part of the Reorganization, each executive managing director’s and the Ziffs’ interests in an Och-Ziff Operating Group entity were reclassified as Class A operating group units, which represent common equity interests in the respective Och-Ziff Operating Group entity. One Class A operating group unit in each of the Och-Ziff Operating Group entities collectively represents one “Och-Ziff Operating Group A Unit.” In addition, some of the Och-Ziff Operating Group D Units (described below) issued to our executive managing directors subsequent to the IPO have since been converted into Och-Ziff Operating Group A Units.
Our executive managing directors and the Ziffs own 100% of the Och-Ziff Operating Group A Units, which as of December 31, 2013, represent a 64.1% equity interest in the Och-Ziff Operating Group. Och-Ziff Operating Group A Units are exchangeable for our Class A Shares on a one-for-one basis, subject to minimum retained ownership requirements by our executive managing directors and certain exchange rate adjustments for splits, unit distributions and reclassifications. Och-Ziff Operating Group A Units granted to our executive managing directors in connection with the Reorganization were generally subject to ratable annual vesting through November 2012.
In August 2012, our executive managing directors approved new transfer restrictions that generally limit their ability to transfer or exchange their Och-Ziff Operating Group A Units. In 2014, these transfer restrictions will allow each of our executive managing directors to exchange Och-Ziff Operating Group A Units representing up to 10% of their vested partnership interests in the Och-Ziff Operating
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Group per year (determined on a cumulative basis), together with an equivalent percentage of units that were permitted to be but were not exchanged in 2013, and to sell any resulting Class A Shares with the approval of the Exchange Committee. In 2015, the Exchange Committee will determine in its sole discretion whether to allow any additional exchanges of Och-Ziff Operating Group A Units and sales of any resultant Class A Shares by any of our executive managing directors for each year from 2015 through 2017, provided that such exchanges will generally not exceed 10% of an executive managing director’s vested partnership interests in the Och-Ziff Operating Group per year (determined on a cumulative basis). Prior to the adoption of these modifications, our executive managing directors would have been entitled to exchange up to 75% of their vested Och-Ziff Operating Group A Units and sell the resultant Class A Shares.
Och-Ziff Operating Group B Units. We contributed our proceeds from the 2007 Offerings to our intermediate holding companies, which in turn contributed those proceeds to each of the Och-Ziff Operating Group entities in exchange for Class B operating group units in each such entity. One Class B operating group unit in each of the Och-Ziff Operating Group entities collectively represents one “Och-Ziff Operating Group B Unit.” Each intermediate holding company holds a general partner interest and Och-Ziff Operating Group B Units in each Och-Ziff Operating Group entity that it controls. Our intermediate holding companies own 100% of the Och-Ziff Operating Group B Units, which, as of December 31, 2013, represent a 35.9% equity interest in the Och-Ziff Operating Group. The Och-Ziff Operating Group B Units are economically identical to the Och-Ziff Operating Group A Units held by our executive managing directors and the Ziffs and represent common equity interests in our business, but are not exchangeable for Class A Shares and are not subject to vesting, forfeiture or minimum retained ownership requirements.
Och-Ziff Operating Group D Units. Subsequent to our IPO, we issued Class D operating group units to new executive managing directors in connection with their admission to the Och-Ziff Operating Group, as well as in connection with performance-related grants to executive managing directors. Commencing in 2013, we began to issue Class D operating group units to active executive managing directors participating in The Och-Ziff Capital Management Group LLC 2012 Partner Incentive Plan, which we refer to as the “PIP.” For additional information regarding the PIP, please see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Understanding Our Results—Expenses—Compensation and Benefits.”
One Class D operating group unit in each of the Och-Ziff Operating Group entities collectively represents one “Och-Ziff Operating Group D Unit.” The Och-Ziff Operating Group D Units are non-equity, limited partner profits interests that are only entitled to share in residual assets upon liquidation, dissolution or winding up to the extent that there has been a threshold amount of appreciation or gain in the value of the Och-Ziff Operating Group subsequent to issuance of the units. The Och-Ziff Operating Group D Units convert into Och-Ziff Operating Group A Units to the extent we determine that they have become economically equivalent to Och-Ziff Operating Group A Units. Allocations to these interests are recorded within compensation and benefits in our consolidated statements of comprehensive income (loss).
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The diagram below depicts our organizational structure as of December 31, 2013(1):
(1) | This diagram does not give effect to 11,252,023 Class A restricted share units, or “RSUs,” that were outstanding as of December 31, 2013, and which were granted to our executive managing directors, managing directors, other employees and the independent members of our Board of Directors. |
(2) | Mr. Och, the other executive managing directors and the Ziffs hold Och-Ziff Operating Group A Units representing 33.2%, 30.6% and 0.3%, respectively, of the equity in the Och-Ziff Operating Group, excluding the 3,205,923 Class A Shares collectively owned |
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| directly by Mr. Och and certain other executive officers. Our executive managing directors also hold Class C Non-Equity Interests and Och-Ziff Operating Group D Units as described below in notes (4) and (5). |
(3) | Mr. Och holds Class B Shares representing 33.3% of the voting power of our Company and the other executive managing directors hold Class B Shares representing 30.7% of the voting power of our Company. Our executive managing directors have granted an irrevocable proxy to vote all of their Class B Shares to the Class B Shareholder Committee, the sole member of which is currently Mr. Och, as it may determine in its sole discretion. In addition, Mr. Och controls an additional 0.4% of the combined voting power through his direct ownership of 1,957,071 Class A Shares. The Ziffs do not hold any of our Class B Shares and, therefore, will only have voting power in our Company to the extent they exchange their Och-Ziff Operating Group A Units for Class A Shares and retain such Class A Shares. |
(4) | Not presented in the diagram above are Class C Non-Equity Interests, which are non-equity interests in the Och-Ziff Operating Group entities. No holder of Class C Non-Equity Interests will have any right to receive distributions on such interests. Our executive managing directors hold all of the Class C Non-Equity Interests, which may be used for discretionary income allocations, including the cash element of any discretionary annual performance awards paid to our executive managing directors. References to bonuses throughout this annual report include any Class C Non-Equity Interests distributions. |
(5) | Not presented in the diagram above are Och-Ziff Operating Group D Units, which represent an approximately 2.3% profits interest in the Och-Ziff Operating Group, and are not considered equity interests for GAAP purposes. Our executive managing directors hold all of the Och-Ziff Operating Group D Units. |
Our Fund Structure
Our funds are typically organized using a “master-feeder” structure. This structure is commonly used in the hedge fund industry and calls for the establishment of one or more U.S. or non-U.S. “feeder” funds, which are managed by us but are separate legal entities and have different structures and operations designed for distinct groups of investors. Fund investors, including our executive managing directors, employees and other related parties, invest directly into our feeder funds. These feeder funds hold direct or indirect interests in a “master” fund that, together with its subsidiaries, is the primary investment vehicle for its feeder funds. Our funds are managed by the Och-Ziff Operating Group. Any of our existing or future funds may invest using any alternative structure that is deemed useful or appropriate.
Employees
As of December 31, 2013, our worldwide headcount was 546 (including 71 in the United Kingdom and 48 in Asia), with 148 investment professionals (including 38 in the United Kingdom and 23 in Asia). As of this date, we had 24 active executive managing directors and 55 managing directors.
Regulatory Matters
Our business is subject to extensive regulation, including periodic examinations and regulatory investigations, by governmental and self-regulatory organizations in the jurisdictions in which we operate around the world. As an investment adviser registered under the Investment Advisers Act of 1940, as amended, which we refer to as the “Advisers Act,” and a company subject to the registration and reporting provisions of the Exchange Act, we are subject to regulation and oversight by the SEC. As a company with a class of securities listed on the NYSE, we are subject to the rules and regulations of the NYSE. In addition, we are subject to regulation by the Department of Labor under the U.S. Employee Retirement Income Security Act of 1974, which we refer to as “ERISA.” Our European and Asian operations, and our investment activities around the globe, are subject to a variety of regulatory regimes that vary country by country, including the U.K. Financial Conduct Authority, the Securities and Futures Commission in Hong Kong, the Securities and Exchange Board of India and the Dubai Financial Services Authority. Currently, governmental authorities in the United States and in the other countries in which we operate have proposed additional disclosure requirements and regulation of hedge funds and other alternative asset managers. See “Item 1A. Risk Factors—Risks Related to Our Business—Extensive regulation of our business affects our activities and creates the potential for significant liabilities and penalties. Our reputation, business, financial condition or results of operations could be materially affected by regulatory issues” and “Item 1A. Risk Factors—Risks Related to Our Business—Increased regulatory focus could result in additional burdens on our business.”
Global Compliance Program
We have implemented a global compliance program to address the legal and regulatory requirements that apply to our company-wide operations. We registered as an investment adviser with the SEC in 1999. Since that time, our affiliated companies have registered with the U.K. Financial Conduct Authority, the Securities and Futures Commission in Hong Kong, the National Futures Association in the U.S., the Securities and Exchange Board of India and the Dubai Financial Services Authority, as well as other regulatory bodies. We have structured our global compliance program to address the requirements of each of these regulators, as well as the requirements necessary to support our global securities, commodities and loan trading operations.
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Our compliance program includes comprehensive policies and supervisory procedures that have been designed and implemented to monitor compliance with these requirements. All employees attend mandatory annual compliance training to remain informed of our policies and procedures related to matters such as the handling of material non-public information, conflicts of interest and employee securities trading. Annual training specifically targeted at ensuring the understanding of and compliance with the Foreign Corrupt Practices Act (the “FCPA”) and, as applicable, other foreign anti-corruption laws and regulations is mandatory for employees and executives responsible for structuring, supervising, ensuring compliance of and executing accounting functions for private deals, as well as for employees who interact with or provide reporting to investors. In addition to a robust internal compliance framework, we have strong relationships with a global network of local attorneys specializing in compliance matters to help us quickly identify regulatory changes and address compliance issues as they arise.
Our Executive Officers
Set forth below is certain information regarding our executive officers as of the date of this filing.
Daniel S. Och, 53, is the founder of the Och-Ziff Capital Management Group. Mr. Och serves as Och-Ziff’s Chief Executive Officer and Chairman of the Board of Directors and the Partner Management Committee. Prior to founding Och-Ziff in 1994, Mr. Och spent eleven years at Goldman, Sachs & Co. He began his career in the Risk Arbitrage Department, and later responsibilities included Head of Proprietary Trading in the Equities Division and Co-Head of U.S. Equities Trading. Mr. Och holds a B.S. in Finance from the Wharton School of the University of Pennsylvania.
Joel M. Frank, 58, is Chief Financial Officer and Senior Chief Operating Officer of Och-Ziff, and is a member of Och-Ziff’s Board of Directors and Partner Management Committee. Prior to joining Och-Ziff at its inception in 1994, Mr. Frank was with Rho Management Company, Inc. as its Chief Financial Officer from 1988 to 1994. He was previously with Manufacturers Hanover Investment Corporation from 1983 to 1988 as Vice President and Chief Financial Officer and with Manufacturers Hanover Trust from 1977 to 1983. Mr. Frank holds a B.B.A. in Accounting from Hofstra University and an M.B.A. in Finance from Fordham University. He is a C.P.A. certified in the State of New York.
David Windreich, 56, is Head of U.S. and European Investing for Och-Ziff and is a member of Och-Ziff’s Board of Directors and Partner Management Committee. Prior to joining Och-Ziff at its inception in 1994, Mr. Windreich was a Vice President in the Equity Derivatives Department of Goldman, Sachs & Co. He began his career at Goldman, Sachs & Co. in 1983 and became a Vice President in 1988. Mr. Windreich holds both a B.A. in Economics and an M.B.A. in Finance from the University of California, Los Angeles.
Zoltan Varga, 40, is Head of Asian Investing for Och-Ziff, is a member of Och Ziff’s Partner Management Committee and helps manage Och-Ziff’s Hong Kong office. Prior to joining Och-Ziff in 1998, Mr. Varga was with Goldman, Sachs & Co. as an Investment Banking Analyst in the Mergers and Acquisitions Department. Mr. Varga holds a B.A. in Economics from DePauw University.
Harold A. Kelly, 50, is Head of Global Convertible and Derivative Arbitrage for Och-Ziff and is a member of Och-Ziff’s Partner Management Committee. Prior to joining Och-Ziff in 1995, Mr. Kelly spent seven years trading various financial instruments and held positions at Cargill Financial Services Corporation, Eagle Capital Management, Merrill Lynch International, Ltd. and Buchanan Partners, Ltd. Mr. Kelly holds a B.B.A. in Finance and also holds an M.B.A. and a Ph.D. in Business Administration from The University of Georgia.
James S. Levin, 31, is Head of Global Credit for Och-Ziff and is a member of Och-Ziff’s Partner Management Committee. Prior to joining Och-Ziff in 2006, Mr. Levin was an Associate at Dune Capital Management LP. Prior to that, Mr. Levin was an analyst at Sagamore Hill Capital Management, L.P. Mr. Levin holds a B.A. in Computer Science from Harvard University.
Jeffrey C. Blockinger, 44, is Chief Legal Officer, Chief Compliance Officer and Secretary of Och-Ziff. Prior to joining Och-Ziff in April 2005, Mr. Blockinger was with Schulte, Roth and Zabel LLP from April 2003 to April 2005, Crowell & Moring LLP from January 2002 to April 2003 and Morgan, Lewis & Bockius LLP from September 1996 to January 2002. Mr. Blockinger holds a B.A. in Political Science from Purdue University and a J.D. from the University of Miami School of Law. Mr. Blockinger is admitted to the bars of New York and the District of Columbia.
Risks Related to Our Business
In the course of conducting our business operations, we are exposed to a variety of risks that are inherent to or otherwise impact the alternative asset management business. Any of the risk factors we describe below have affected or could materially adversely affect our business, results of operations, financial condition and liquidity. The market price of our Class A Shares could decline, possibly significantly or permanently, if one or more of these risks and uncertainties occur. Certain statements in “Risk Factors” are forward-looking statements. See “Forward-Looking Statements.”
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Our business has been and may be adversely affected by global economic and market conditions, which can change rapidly and which we cannot predict or control. A recurrence of the adverse conditions experienced during the financial crisis in 2008 to 2009 would adversely affect our business, financial condition and results of operations.
As a global alternative asset manager, we seek to generate consistent, positive, absolute returns across all market cycles for the investors in our funds. Our ability to do this has been and may be materially impacted by conditions in the global financial markets and economic conditions generally. The financial crisis that began in the second half of 2008 resulted in significant global market turbulence, a lack of liquidity and substantial declines in the values of most asset classes worldwide. While these conditions have generally stabilized and improved since the first quarter of 2009, the global financial markets and economies have not fully recovered, adverse conditions resulting from the crisis continue to persist and certain businesses continue to be negatively impacted by events both leading to and resulting from the crisis. There continues to be broad concern about the trajectory of the global economy, including European sovereign debt and unemployment issues, geopolitical uncertainties, regulatory uncertainty with respect to the operation of, and certain participants in, the global financial markets, and continued levels of risk averseness within institutional and other investment communities. Conditions affecting global economic and financial conditions are inherently outside of our control, can change rapidly and cannot be predicted, but can adversely impact in a material way our funds’ investment performance and ability to retain and attract new assets under management, which in turn may slow or reduce the long-term growth of our business and adversely impact our business, financial condition or results of operations. If the prevailing economic, market and business conditions remain uncertain or worsen, we could experience continuing or increased adverse effects on our business, financial condition or results of operations.
The financial crisis had an adverse impact on the hedge fund industry. As a result of the financial crisis and the resultant impact on the hedge fund industry, the industry experienced significant losses in assets under management. While the industry has experienced inflows since 2009, it may not be able to maintain these gains or achieve pre-crisis growth rates, even if market and economic conditions continue to improve. Our business, financial condition or results of operations may be adversely impacted by negative trends impacting the hedge fund industry as a whole, including widely publicized scandals involving financial institutions or hedge funds specifically, even if our business operations and infrastructure and fund performance can be positively differentiated from other hedge fund industry participants.
Difficult global market, economic or geopolitical conditions may materially adversely affect our business and cause significant volatility in equity and debt prices, interest rates, exchange rates, commodity prices and credit spreads. These factors can materially adversely affect our business in many ways, including by reducing the value or performance of the investments made by our funds and by reducing the ability of our funds to raise or deploy capital, each of which could materially adversely affect our financial condition and results of operations.
The success and growth of our business are highly dependent upon conditions in the global financial markets and economic and geopolitical conditions throughout the world that are outside of our control and difficult to predict. Factors such as equity prices, equity market volatility, asset or market correlations, interest rates, counterparty risks, availability of credit, inflation rates, economic uncertainty, changes in laws or regulation (including laws relating to the financial markets generally or the taxation or regulation of the hedge fund industry), trade barriers, commodity prices, currency exchange rates and controls, and national and international political circumstances (including governmental instability, wars, terrorist acts or security operations) can have a material impact on the value of our funds’ portfolio investments or our general ability to conduct business. Difficult market, economic and geopolitical conditions can negatively impact those valuations and our ability to conduct business, which in turn would reduce or even eliminate our revenues and profitability, thereby having a material adverse effect on our business, financial condition or results of operations.
Unpredictable or unstable market, economic or geopolitical conditions have resulted and may in the future result in reduced opportunities to find suitable risk-adjusted investments to deploy capital and make it more difficult to exit and realize value from our existing investments, which could materially adversely affect our ability to raise new funds and increase our assets under management and, therefore, may have a material adverse effect on our business, financial condition or results of operations. In addition, during such periods, financing and merger and acquisition activity may be greatly reduced, making it harder and more competitive for asset managers to find suitable investment opportunities and to obtain funding for such opportunities. If we fail to react appropriately to difficult market, economic and geopolitical conditions, our funds could incur material losses.
An investment in our Class A Shares is not an alternative to an investment in any of our funds, and the returns of our funds should not be considered as indicative of any returns expected on our Class A Shares, although poor investment performance of, or lack of capital flows into, the funds we manage could have a materially adverse impact on our revenues and, therefore, the returns on our Class A Shares.
The returns on our Class A Shares are not directly linked to the historical or future performance of the funds we manage or the manager of those funds. Even if our funds experience positive performance and our assets under management increase, holders of our Class A Shares may not experience a corresponding positive return on their Class A Shares.
However, poor performance of the funds we manage will cause a decline in our revenues from such funds, and may therefore have a negative effect on our performance and the returns on our Class A Shares. If we fail to meet the expectations of our fund investors or
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otherwise experience poor investment performance, whether due to difficult economic and financial conditions or otherwise, our ability to retain existing assets under management and attract new investors and capital flows could be materially adversely affected. In turn, the management fees and incentive income that we would earn would be reduced and our business, financial condition or results of operations would suffer, thus negatively impacting the price of our Class A Shares. Furthermore, even if the investment performance of our funds is positive, our business, financial condition or results of operations and the price of our Class A Shares could be materially adversely affected if we are unable to attract and retain additional assets under management consistent with our past experience, industry trends or investor and market expectations.
Investors in our funds have the right to redeem their investments in our funds on a regular basis and could redeem a significant amount of assets under management during any given quarterly period, which would result in significantly decreased revenues.
Subject to any specific redemption provisions applicable to a fund, investors in our multi-strategy hedge funds may generally redeem their investments in our funds on an annual or quarterly basis following the expiration of a specified period of time (typically between one and three years), although certain investors generally may redeem capital during such specified period upon the payment of a redemption fee and upon giving proper notice. In a declining market, the pace of redemptions and consequent reduction in our assets under management potentially could accelerate. Furthermore, investors in our funds may also invest in funds managed by other alternative asset managers that have restricted or suspended redemptions or may in the future do so. Such investors may redeem capital from our funds, even if our performance is superior to such other alternative asset managers’ performance if they are restricted or prevented from redeeming capital from those other managers.
The decrease in revenues that would result from significant redemptions in our funds could have a material adverse effect on our business, financial condition or results of operations. In 2009, due to factors related to the financial crisis, investors redeemed approximately $9.9 billion from our funds. During 2013, we experienced redemptions of approximately $4.7 billion from our funds. We may continue to experience elevated redemption levels, and if economic and market conditions remain uncertain or worsen, we may once again experience significant redemptions.
Our business, financial condition or results of operations may be materially adversely impacted by the highly variable nature of our revenues, results of operations and cash flows. In a typical year, a substantial portion of our incentive income and all of our annual discretionary bonus expense is determined and recorded in the fourth quarter each year, which means that our interim results are not expected to be indicative of our results for a full year, causing increased volatility in the price of our Class A Shares.
Our revenues are influenced by the combination of the amount of assets under management and the investment performance of our funds. Asset flows, whether inflows or outflows, can be highly variable from month-to-month and quarter-to-quarter. Furthermore, our funds’ investment performance, which affects the amount of assets under management and the amount of incentive income we may earn in a given year, can be volatile due to, among other things, general market and economic conditions. Accordingly, our revenues, results of operations and cash flows are all highly variable. This variability is exacerbated during the fourth quarter of each year, primarily due to the fact that a substantial portion of our revenues historically has been and we expect will continue to be derived from incentive income from our funds. Such incentive income is contingent on the investment performance of the funds as of the relevant measurement period, which generally is as of the end of each calendar year; however, as of December 31, 2013, with respect to 26.4% of assets under management, the measurement period can be three years or longer depending on how the assets are invested. The expiration of these measurement periods may occur on dates other than December 31, which, in certain circumstances, may cause increased volatility in our results. Moreover, in a typical year, we determine the amount of our annual discretionary cash bonus during the fourth quarter based on total annual revenues. Because this bonus is variable and discretionary, it can exacerbate the volatility of our results. We may also experience fluctuations in our results from quarter to quarter due to a number of other factors, including changes in management fees resulting from changes in the management fee rates we charge our fund investors or due to changes in the values of our funds’ investments, as well as capital inflows or outflows. Changes in our operating expenses, unexpected business developments and initiatives and, as discussed above, general economic and market conditions may also cause fluctuations in our results from quarter to quarter. Such variability and unpredictability may lead to volatility or declines in the price of our Class A Shares and cause our results for a particular period not to be indicative of our performance in a future period or particularly meaningful as a basis of comparison against results for a prior period.
The amount of incentive income that may be generated by our funds is uncertain until it is actually crystallized. We generally do not record incentive income in our interim financial statements other than incentive income earned (i) as a result of fund investor redemptions during the interim period, (ii) at the end of the three-year performance measurement period for assets under management subject to a three-year measurement period, (iii) at the end of the performance measurement period for other assets subject to longer-term measurement periods, or (iv) from tax distributions relating to assets with longer-term measurement periods. As a result of these and other factors, our interim results may not be indicative of historical performance or any results that may be expected for a full year.
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In addition, all of our hedge funds have “perpetual high-water marks.” This means that if a fund investor experiences losses in a given year, we will not be able to earn incentive income with respect to such investor’s investment unless and until our investment performance surpasses the perpetual high-water mark. The incentive income we earn is therefore dependent on the net asset value of each fund investor’s investment in the fund. Investors in our funds for the year ended December 31, 2011 generally experienced losses, resulting in a high-water mark for such investors. Accordingly, our funds’ investment performance in 2012 had to exceed those high-water marks in order for us to earn incentive income in 2012. As a result, the impact to our 2012 incentive income was approximately $43.6 million. Failure to earn incentive income as a result of these high-water marks may adversely impact our business, financial condition or results of operations and our ability to make distributions to our Class A Shareholders. In addition, incentive income distributions from our real estate and certain other funds is subject to clawback obligations generally measured as of the end of the life of a fund, and therefore we defer this revenue until we are no longer required to repay amounts to a fund to the extent we have received excess incentive income distributions during the life of the fund relative to the aggregate performance of the fund. We cannot predict when realization events will occur or whether, upon occurrence, these investments will be profitable.
As a result of quarterly fluctuations in, and the related unpredictability of, our revenues and profits, the price of our Class A Shares can be significantly volatile.
Competitive pressures in the asset management business could materially adversely affect our business, financial condition or results of operations.
The asset management business remains intensely competitive, with competition based on a variety of factors, including investment performance, the quality of service and level of desired information provided to fund investors, brand recognition and business reputation. We compete for fund investors, highly qualified talent, including investment professionals, and for investment opportunities with a number of hedge funds, private equity firms, specialized funds, traditional asset managers, commercial banks, investment banks and other financial institutions. A number of factors create competitive risks for us:
• | We compete in an international arena and, to remain competitive, we may need to further expand our business into new geographic regions or new business areas where our competitors may have a more established presence or greater experience and expertise. |
• | A number of our competitors have greater financial, technical, marketing and other resources and more personnel than we do. |
• | Several of our competitors have raised and continue to raise significant amounts of capital, and many of them have or may pursue investment objectives that are similar to ours, which would create additional competition for investment opportunities and may reduce the size and duration of pricing inefficiencies that many alternative investment strategies seek to exploit. |
• | Some of our competitors may have higher risk tolerances or different risk assessments, which could allow them to consider a wider variety of investments and to bid more aggressively than us for investments that we may want to make. |
• | Some of our competitors may be subject to less extensive regulation and thus may be better positioned to pursue certain investment objectives and/or be subject to lower expenses related to compliance and regulatory investigations than us. |
• | Other industry participants will from time to time seek to recruit our active executive managing directors, investment professionals and other professional talent away from us. |
We may lose fund investors in the future if we do not match or provide more attractive management fees, incentive income arrangements, structures and terms than those offered by competitors. However, we may experience decreased revenues if we match or provide more attractive management fees, incentive income arrangements, structures and terms offered by competitors. In addition, changes in the global capital markets could diminish the attractiveness of our funds relative to investments in other investment products. This competitive pressure could materially adversely affect our ability to make successful investments and limit our ability to raise future successful funds, either of which would materially adversely impact our business, financial condition or results of operations.
If our investment performance, including the level and consistency of returns or other performance criteria, does not meet the expectations of our fund investors, it will be difficult for our funds to retain or raise capital and for us to grow our business. Additionally, even if our fund performance is strong, it is possible that we will not be able to attract additional capital. Further, the allocation of increasing amounts of capital to alternative investment strategies over the long term by institutional and individual investors may lead to a reduction in profitable investment opportunities, including by driving prices for investments higher and increasing the difficulty of achieving consistent, positive, absolute returns. Competition for fund investors is based on a variety of factors, including:
• | Investor liquidity and willingness to invest. |
• | Investor perception of investment managers’ ability, drive, focus and alignment of interest with them. |
• | Investor perception of robustness of business infrastructure and financial controls. |
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• | Transparency with regard to portfolio composition. |
• | Investment and risk management processes. |
• | Quality of service provided to and duration of relationship with investors. |
• | Business reputation, including the reputation of a firm’s investment professionals. |
• | Level of fees and incentive income charged for services. |
If we are not able to compete successfully based on these and other factors, our assets under management, earnings and revenues may be significantly reduced and our business, financial condition or results of operations may be materially adversely affected. Furthermore, if we are forced to compete with other alternative asset managers on the basis of fees, we may not be able to maintain our current management fee and incentive income structures, which drive our revenues and earnings. We have historically competed for fund investors primarily on the investment performance of our funds and our reputation, and not on the level of our fees or incentive income relative to those of our competitors. However, as the alternative asset management sector matures and addresses current market and competitive conditions, there is a risk that management fee and incentive income rates will decline, without regard to the historical performance of a manager. Management fee or incentive income rate reductions on existing or future funds, particularly without corresponding increases in assets under management or decreases in our operating costs, could materially adversely affect our business, financial condition or results of operations.
Even if we are able to compete successfully based on the factors noted above, it is possible we could lose assets under management to our competitors. During the financial crisis, for example, many investors in our funds were also investors in funds managed by other alternative asset managers that restricted or suspended redemptions for a period of time. During that period of time, investors redeemed assets from our funds due, we believe, to their inability to obtain liquidity from other sources. It is possible that similar circumstances could cause us to experience unusually high redemptions or a decrease in inflows, even if our investment performance and other business attributes are otherwise competitive or superior.
Our term loan may restrict our current and future operations, particularly our ability to respond to certain changes or to take future actions.
We entered into a credit agreement for a term loan (the “2007 Term Loan”) that was used to purchase interests in our real estate business and to make distributions to our executive managing directors prior to the 2007 Offerings. We also entered into a separate credit agreement for delayed draw term loans (the “Delayed Draw Term Loan”) that were used in part to fund the buyback of a portion of our 2007 Term Loan in November 2011 and that were used to repay in full the indebtedness outstanding under our 2007 Term Loan and indebtedness outstanding related to our aircraft loan in June 2012. The Delayed Draw Term Loan, which matures in November 2016, is evidenced by a credit agreement for OZ Management, OZ Advisors I, OZ Advisors II and certain of their subsidiaries (collectively, the “Och-Ziff Operating Group Credit Parties”), which contains a number of restrictive covenants that collectively impose significant operating and financial restrictions on the Och-Ziff Operating Group Credit Parties, including restrictions that may limit their ability to engage in acts that may be in our long-term best interests. The restrictions in the credit agreement include, among other things, limitations on the ability of the Och-Ziff Operating Group Credit Parties to:
• | Incur additional indebtedness or issue certain equity interests. |
• | Pay dividends in excess of free cash flow (as defined in the credit agreement) or make other restricted payments. |
• | Merge, consolidate, or sell or otherwise dispose of all or any part of their assets. |
• | Engage in certain transactions with shareholders or affiliates. |
• | Engage in substantially different lines of business. |
• | Amend their organizational documents in a manner materially adverse to the lenders. |
Additionally, our credit agreement for the Delayed Draw Term Loan includes two financial maintenance covenants relating to assets under management and an economic income leverage ratio.
The credit agreement also identifies a number of events that, if they occurred, would constitute an event of default under the credit agreement. The events of default include a change of control, which would occur if Daniel S. Och and his related entities cease to beneficially own and control, directly or indirectly, at least 20% (on a fully diluted basis) of the economic and voting interests in the Och-Ziff Operating Group, or if any other person or group acquires beneficial ownership (on a fully diluted basis) of a greater percentage of such interests than the percentage of such interests owned and controlled by Mr. Och and his related entities.
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A failure by any of the Och-Ziff Operating Group Credit Parties to comply with the covenants or amortization requirements—or upon the occurrence of other defaults or events of default—specified in the credit agreement could result in an event of default under the credit agreement, which would give the Delayed Draw Term Loan lenders the right to declare all indebtedness outstanding under the Delayed Draw Term Loan, together with accrued and unpaid interest and fees, to be immediately due and payable. In addition, the Delayed Draw Term Loan lenders would have the right to proceed against the collateral the Och-Ziff Operating Group Credit Parties granted to them, which consists of substantially all the assets of the Och-Ziff Operating Group Credit Parties. If the debt under the credit agreement were to be accelerated, the Och-Ziff Operating Group Credit Parties may not have sufficient cash on hand or be able to sell sufficient collateral to repay this debt, which would have an immediate material adverse effect on our business, results of operations and financial condition. For more detail about risks relating to any refinancing, repurchasing or repayment of our term loan, see “—Changes in the credit markets may negatively impact our ability to refinance our term loan or our ability to otherwise obtain attractive financing for our business, and may increase the cost of such financing if it is obtained, which would lead to higher interest expense or, with respect to our funds, lower-yielding investments, either of which would decrease our earnings. An increase in our borrowing costs may materially adversely affect our business, financial condition or results of operations.” For more detail regarding the credit agreement, its terms and the current status of compliance with the credit agreement by the Och-Ziff Operating Group Credit Parties, please see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” and “—Debt Obligations.”
Our business and financial condition may be materially adversely impacted by the loss of any of our key executive managing directors, particularly certain members of our Partner Management Committee.
The success of our business depends on the efforts, judgment and personal reputations of our key executive managing directors, particularly certain members of our Partner Management Committee, and certain other key executive managing directors. Our key executive managing directors’ reputations, expertise in investing and risk management, relationships with investors in our funds and third parties on which our funds depend for investment opportunities and financing are each critical elements in operating and expanding our business. The loss of any of these individuals could harm our business and jeopardize our relationships with our fund investors and members of the business community. We believe our performance is highly correlated to the performance of these individuals. Accordingly, the retention of our key executive managing directors is crucial to our success, but none of them is obligated to remain actively involved with us. In addition, if any of our key executive managing directors were to join or form a competitor, some of our fund investors could choose to invest with that competitor rather than in our funds. The loss of the services of any of our key executive managing directors could have a material adverse effect on our business, financial condition or results of operations, including on the performance of our funds, our ability to retain and attract fund investors and highly qualified employees and our ability to raise new funds. We do not carry any “key man” insurance that would provide us with proceeds in the event of the death or disability of any of our key executive managing directors.
In addition, investors in most of our funds have one-time special redemption rights that are triggered upon the loss of services of Mr. Och. See “—Most of our funds have special withdrawal provisions pursuant to which the failure of Daniel S. Och to be actively involved in the business provides investors with the right to redeem from such funds. The loss of the services of Mr. Och would have a material adverse effect on each of such funds and on our business, financial condition or results of operations” for additional information. Further, we negotiate other key man provisions in certain of our funds, which could provide for earlier redemption rights, in the event that one or more of certain of our key executive managing directors cease to provide services to such funds. Accordingly, the loss of such key executive managing directors could also result in significant or earlier redemptions from our funds, which could have a material adverse impact on our business, financial condition or results of operations.
Our ability to retain and attract executive managing directors, managing directors and other investment professionals is critical to the success and growth of our business.
Our investment performance and ability to successfully manage and expand our business, including into new geographic areas, is largely dependent on the talents and efforts of highly skilled individuals, including our active executive managing directors, managing directors and other investment professionals. Accordingly, our future success and growth depend on our ability to retain and motivate our active executive managing directors and other key personnel and to strategically recruit, retain and motivate new talent. We may not be successful in our efforts to recruit, retain and motivate the required personnel as the global market for qualified investment professionals is extremely competitive, particularly in cases where we are competing for qualified personnel in geographic or business areas where our competitors have a significantly greater presence or more extensive experience. We compete intensely with businesses both within and outside the alternative asset management industry for highly talented and qualified personnel. Accordingly, in order to retain and attract talent, our total compensation and benefits expense could increase to a level that may materially adversely affect our profitability and reduce our cash available for distribution to our executive managing directors and Class A Shareholders.
It may be difficult for us to retain and motivate our active executive managing directors after their interests in our business are fully vested and they are permitted to exchange their interests for Class A Shares that they can sell. The Och-Ziff Operating Group A Units granted to our executive managing directors who were executive managing directors before our IPO (our “Pre-IPO Partners”) in connection with the Reorganization have now generally become fully vested and Och-Ziff Operating Group Units granted subsequently to our executive managing directors continue to vest over time.
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In August 2012, our executive managing directors approved new transfer restrictions that generally limit their ability to transfer or exchange Och-Ziff Operating Group A Units. In 2014, these transfer restrictions will allow each of our executive managing directors to exchange Och-Ziff Operating Group A Units representing up to 10% of their vested partnership interests in the Och-Ziff Operating Group per year (determined on a cumulative basis), together with an equivalent percentage of units that were permitted to be but were not exchanged in 2013, and to sell any resulting Class A Shares with the approval of the Exchange Committee. In 2015, the Exchange Committee will determine in its sole discretion whether to allow any additional exchanges and sales by any of our executive managing directors for each year from 2015 through 2017, provided that such exchanges or sales will generally not exceed 10% of an executive managing director’s vested partnership interests in the Och-Ziff Operating Group per year (determined on a cumulative basis) for each year through 2017. Prior to the adoption of these modifications, from November 2012 our Pre-IPO Partners would have been entitled to exchange 75% of their vested Och-Ziff Operating Group A Units for Class A Shares (or cash at our option) and to sell the resultant Class A Shares.
In consideration for our executive managing directors agreeing to accept these transfer restrictions, and reflective of our Pre-IPO Partners’ commitment to Och-Ziff, we established a new Partner Incentive Plan in August 2012, which we refer to as the “PIP.” Under the terms of the PIP, the participating Pre-IPO Partners, which we refer to as the “Eligible Pre-IPO Partners,” may be eligible to receive discretionary grants of annual performance awards (“Performance Awards”) over a five-year period that commenced in 2013. Performance Awards may be satisfied in Och-Ziff Operating Group D Units, which we refer to as “Performance Unit Awards,” and may also be satisfied in cash, which we refer to as “Performance Cash Awards.” All Performance Awards will be conditionally granted subject to compliance by each Eligible Pre-IPO Partner’s non-compete obligations. Each Eligible Pre-IPO Partner’s Performance Unit Awards and the after-tax portion of his Performance Cash Awards in respect of two prior years will be subject to clawback pursuant to the terms of the PIP if he breaches the non-compete obligation.
Although we believe that our Partner Incentive Plan will help us retain and further motivate our active executive managing directors, Performance Unit Awards to participating Pre-IPO Partners under the PIP may involve the issuance of substantial additional equity interests in our business to such executive managing directors and the incurrence of significant additional expenses. In the aggregate, the Eligible Pre-IPO Partners collectively may receive up to 13,853,745 Och-Ziff Operating Group D Units over the five-year period if a determination is made each year to award the maximum number of Performance Unit Awards. The maximum aggregate amount of Performance Cash Awards for each year will be capped at 10% of our incentive income earned during that year, up to a maximum of $39.6 million. The Eligible Pre-IPO Partners, collectively, may receive Performance Cash Awards in a maximum aggregate amount of $197.8 million over the five-year period if we earn enough incentive income each year and if a determination is made each year to award the maximum aggregate amount of Performance Cash Awards to the Eligible Pre-IPO Partners. In addition, in order to retain and further motivate our active executive managing directors who do not participate in the PIP, we may determine from time to time to make additional grants of Och-Ziff Operating Group D Units or cash to such active executive managing directors. Awards of units under the PIP and any such other grants of units will cause dilution to existing Class A Shareholders, thereby reducing amounts available for distribution to our Class A Shareholders. In addition, any cash awards made to our active executive managing directors will cause our total compensation and benefits expense to increase and will adversely affect our profitability. If we are unable to retain the services of any of our active executive managing directors, the loss of their services could have a material adverse effect on our business, financial condition or results of operations, including by harming our ability to maintain or grow assets under management in existing funds or raise additional funds in the future.
In any year where our funds experience losses and we do not earn incentive income, bonuses for that year (and in subsequent years until such losses are recouped) may be significantly reduced. Reduced bonuses, particularly during subsequent years, could have a material adverse impact on our ability to motivate and retain our investment professionals and other employees and, therefore, materially adversely affect our business, financial condition or results of operations.
Furthermore, our active executive managing directors and investment professionals possess substantial experience and expertise in investing, are responsible for locating and executing our funds’ investments, have significant relationships with the institutions that are the source of many of our funds’ investment opportunities, and in certain cases have strong relationships with our fund investors. Therefore, if our active executive managing directors or investment professionals join competitors or form competing businesses, we could experience a loss of investment opportunities and existing fund investor relationships, which if significant, would have a material adverse effect on our business, financial condition or results of operations.
The Och-Ziff Operating Group entities’ limited partnership agreements and other agreements entered into with our executive managing directors provide that the ownership interests in our business that are held by our executive managing directors are subject to various transfer restrictions and vesting and forfeiture conditions. In addition, the RSUs that have been awarded to our managing directors, certain executive managing directors and certain other employees are also subject to certain vesting and forfeiture requirements. Further, all of our active executive managing directors and managing directors are subject to certain restrictions with respect to competing with us, soliciting our employees and fund investors and disclosing confidential information about our business. These restrictions, however, may not be enforceable in all cases and can be waived by us at any time. There is no guarantee that these requirements and agreements, or the forfeiture provisions of the Och-Ziff Operating Group entities’ limited partnership agreements (which are relevant to our executive managing directors) or the agreements we have with our managing directors will prevent any of these professionals from leaving us, joining
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our competitors or otherwise competing with us. Any of these events could have a material adverse effect on our business, financial condition or results of operations.
Most of our funds have special withdrawal provisions pursuant to which the failure of Daniel S. Och to be actively involved in the business provides investors with the right to redeem from such funds. The loss of the services of Mr. Och would have a material adverse effect on each of such funds and on our business, financial condition or results of operations.
Investors in most of our funds are generally given a one-time special redemption right (not subject to redemption fees) if Daniel S. Och dies or ceases to perform his duties with respect to the fund for 90 consecutive days or otherwise ceases to be involved in the activities of the Och-Ziff Operating Group. The death or inability of Mr. Och to perform his duties with respect to any of our funds for 90 consecutive days, or termination of Mr. Och’s involvement in the activities of the Och-Ziff Operating Group for any reason, could result in substantial redemption requests from investors in certain of our funds. Any such event would have a direct material adverse effect on our revenues and earnings, and would likely harm our ability to maintain or grow assets under management in existing funds or raise additional funds in the future. Such withdrawals could lead to a liquidation of certain funds and a corresponding elimination of our management fees and potential to earn incentive income. The loss of Mr. Och could, therefore, ultimately have a material adverse effect on our business, financial condition or results of operations, including a loss of substantially all of our revenues and earnings.
We have experienced and may again experience periods of rapid growth and significant declines in assets under management, which place significant demands on our legal, compliance, accounting, risk management, administrative and operational resources.
Our assets under management grew from approximately $6.2 billion as of December 31, 2001 to $33.4 billion as of December 31, 2007. As of December 31, 2009, our assets under management had declined to $23.1 billion, due to investment losses and redemptions experienced by our funds during the financial crisis that began in the second half of 2008. As of December 31, 2013, our assets under management were approximately $40.2 billion.
Rapid changes in our assets under management impose substantial demands on our legal, compliance, accounting, risk management, administrative and operational infrastructures. The complexity of these demands, and the time and expense required to address them, is a function not simply of the amount by which our assets under management have changed, but also of significant differences in the investing strategies employed within our funds and the time periods during which these changes occur. Furthermore, our future growth will depend on, among other things, our ability to maintain highly reliable operating platforms, management systems and financial reporting and compliance infrastructures that are also sufficiently flexible to promptly and appropriately address our business needs, applicable legal and regulatory requirements and relevant market and other operating conditions, all of which can change rapidly. Addressing these matters may require us to incur significant additional expenses and to commit additional senior management and operational resources, even if we are experiencing declines in assets under management.
There can be no assurance that we will be able to manage our operations effectively without incurring substantial additional expense or that we will be able to grow our business and assets under management, and any failure to do so could materially adversely affect our ability to generate revenues and control our expenses.
We are highly dependent on information systems and other technology, including those used or maintained by third parties with which we do business. Any failure in any such systems or infrastructure could materially impair our business, financial condition or results of operations.
Our business is highly dependent on information systems and technology. We rely heavily on our financial, accounting, trading, risk management and other data processing and information systems to, among other things, execute, confirm, settle and record a very large number of transactions, which can be highly complex and involve multiple parties across multiple financial markets and geographies, and to facilitate financial reporting and legal and regulatory compliance all in an extremely time-sensitive, efficient and accurate manner. We must continually update these systems to properly support our operations and growth, which creates risks associated with implementing new systems and integrating them into existing ones. We also use and rely upon third-party information systems and technology to perform certain business functions. Such third-party technology may be integrated with our own. Therefore, we face additional significant risks that would arise from the failure, disruption, termination or constraints in the information systems and technology of such third parties, including financial intermediaries such as exchanges and other service providers whose information systems and technology we use. If any of these information systems or technology infrastructures fail, are disrupted (including by unauthorized security breaches) or otherwise do not operate properly or as intended, particularly those that directly affect our New York headquarters, we could suffer a disruption or cessation in our business operations, an interception of confidential or proprietary information, liability to our funds, regulatory intervention, legal action or reputational damage, any or all of which could materially impair our business, financial condition or results of operations.
We depend on our headquarters in New York and our London and Hong Kong offices, where most of our personnel are located. Although, we have taken important precautions to limit the impact of failures or disruptions in the information systems and technology
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infrastructures that we use, as well as the impact of physical disruptions to our New York headquarters and London office, these precautions, including our disaster recovery programs, may not be sufficient to adequately mitigate the harm that may result from such a disaster or disruption. In addition, insurance and other safeguards might only partially reimburse us for any losses, if at all.
We are subject to third-party litigation that could result in significant legal and other liabilities and reputational harm, which could materially adversely affect our business, financial condition or results of operations.
We face significant risks in our business that subject us to third-party litigation and legal liability. In general, we will be exposed to litigation risk in connection with any allegations of misconduct, negligence, dishonesty or bad faith arising from our management of any fund. We may also be subject to litigation arising from investor dissatisfaction with the performance of our funds, including certain losses due to the failure of a particular investment strategy or improper trading activity, if we violate restrictions in our funds’ organizational documents or from allegations that we improperly exercised control or influence over companies in which our funds have large investments. In addition, we are exposed to risks of litigation relating to claims that we have not properly addressed conflicts of interest. Any litigation arising in such circumstances is likely to be protracted, expensive and surrounded by circumstances that could be materially damaging to our reputation and our business. Moreover, in such cases, we would be obligated to bear legal, settlement and other costs, which may be in excess of any available insurance coverage. In addition, although we are indemnified by our funds, our rights to indemnification may be challenged. If we are required to incur all or a portion of the costs arising out of any litigation or investigation as a result of inadequate insurance proceeds, if any, or fail to obtain indemnification from our funds, our business, financial condition or results of operations could be materially adversely affected.
It is possible that we would be made a party to any lawsuit involving any of the fund-related litigation described above. As with the funds, while we maintain insurance, there can be no assurance that our insurance will prove to be adequate. If we are required to incur all or a portion of the costs arising out of litigation, our business, financial condition or results of operations could be materially adversely affected. Furthermore, any such litigation could be protracted, expensive and highly damaging to our reputation, which could result in a significant decline in our assets under management and revenues, even if the underlying claims are without merit. In addition, we may participate in transactions that involve litigation (including the enforcement of property rights) from time to time, and such transactions may expose us to reputational risk and increased risk from countersuits.
Extensive regulation of our business affects our activities and creates the potential for significant liabilities and penalties. Our reputation, business, financial condition or results of operations could be materially affected by regulatory issues.
Our business is subject to extensive and complex regulation, including periodic examinations and regulatory investigations, by governmental and self-regulatory organizations in the jurisdictions in which we operate and trade around the world. As an investment adviser registered under the Advisers Act and a company subject to the registration and reporting provisions of the Exchange Act, we are subject to regulation and oversight by the SEC. As a company with a class of securities listed on the NYSE, we are subject to the rules and regulations of the NYSE. As a registered commodity pool operator (“CPO”) and a registered commodity trading advisor (“CTA”), we are subject to regulation and oversight by the United States Commodities Futures Trading Commission (“CFTC”) and the National Futures Association. In addition, we are subject to regulation by the Department of Labor under ERISA. In the United Kingdom, our UK sub-adviser is subject to regulation by the U.K. Financial Conduct Authority. Our Asian operations, and our investment activities around the globe, are subject to a variety of other regulatory regimes that vary country by country, including the Securities and Futures Commission in Hong Kong, the Securities and Exchange Board of India and the Dubai Financial Services Authority.
The regulatory bodies with jurisdiction over us have the authority to grant, and in specific circumstances to cancel, permissions to carry on our business and to conduct investigations and administrative proceedings. Such investigations and administrative proceedings can result in fines, suspensions of personnel or other sanctions, including censure, the issuance of cease-and-desist orders or the suspension or expulsion of an investment adviser from registration or memberships. For example, a failure to comply with the obligations imposed by the Exchange Act or Advisers Act, including recordkeeping, advertising and operating requirements, disclosure obligations and prohibitions on fraudulent activities, or a failure to maintain our funds’ exemption from compliance with the 1940 Act could result in investigations, sanctions and reputational damage, which could adversely affect our business, financial condition or results of operations. Our funds are involved regularly in trading activities that implicate a broad number of U.S. and foreign securities law regimes, including laws governing trading on inside information, market manipulation, anti-corruption, including the FCPA, and a broad number of technical trading requirements that implicate fundamental market regulation policies. Even if an investigation or proceeding did not result in a sanction or the sanction imposed against us or our personnel by a regulator were small in monetary amount, the adverse publicity relating to the investigation, proceeding or imposition of these sanctions could harm our reputation and cause us to lose existing investors or to fail to gain new investors. Furthermore, the legal, technology and other costs associated with regulatory investigations could increase to such a level that they could have a material impact on our business, financial condition or results of operations.
These global financial services regulators affect us not only with their regulations, but also with their examination, inspection and enforcement functions as well. We are routinely subject to examination and inspection and, although we make reasonable efforts to maintain effective compliance programs, there can be no assurances that any such inquiry would not result in a finding or sanction that would adversely affect our business, financial condition or results of operations. Likewise, enforcement investigations and administrative
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inquiries can be sweeping in nature. Cooperating with these investigations, as is our practice, can be expensive and time-consuming and could distract us from our business operations. In particular, US regulators routinely investigate potentially serious matters such as possible insider trading, market manipulation, misleading disclosure, conflicts of interest, fraud, foreign corruption, including under the FCPA; lesser potential violations, such as books and records inaccuracies, weaknesses in internal controls; and compliance with general reporting and advertising regulations. For the past several years, we have cooperated with a number of ongoing regulatory investigations and examinations, both domestically and internationally, and we expect to be the subject of investigations and examinations in the future. There can be no assurances that ongoing or future investigations will not adversely affect our business, financial condition or results of operations. Enforcement actions and administrative proceedings can result in fines, or other sanctions, including censure, the issuance of a cease-and-desist order, suspension or expulsion of persons or firms from the industry. Such sanctions can harm our reputation and cause us to lose existing investors or fail to gain new investors, which could adversely affect our business, financial condition or results of operations.
Beginning in 2011, and from time to time thereafter, we have received subpoenas from the SEC and requests for information from the U.S. Department of Justice (the “DOJ”) in connection with an investigation involving the FCPA and related laws. The investigation concerns an investment by a foreign sovereign wealth fund in some of our funds in 2007 and investments by some of our funds, both directly and indirectly, in a number of companies in Africa. At this time, we are unable to determine how the investigation will be resolved and what impact, if any, it will have. An adverse outcome could have a material effect on our business, financial condition or results of operations.
In addition, we regularly rely on exemptions or exclusions from various requirements of the Securities Act, the Exchange Act, the 1940 Act, the Commodity Exchange Act and ERISA in conducting our asset management activities. These exemptions or exclusions are sometimes highly complex and may, in certain circumstances, depend on compliance by third parties whom we do not control. If for any reason these exemptions or exclusions were to become unavailable to us, we could become subject to regulatory action or third-party claims and our business, financial condition or results of operations could be materially adversely affected. Certain of the requirements imposed under the 1940 Act, the Advisers Act, ERISA and by non-U.S. regulatory authorities are designed primarily to ensure the integrity of the financial markets and to protect investors in our funds and are not designed to protect holders of our Class A Shares. At any time, the regulations applicable to us may be amended or expanded by the relevant regulatory authorities. If we are unable to correctly interpret and timely comply with any amended or expanded regulatory requirements, our business, financial condition or results of operations could be adversely impacted in a material way.
Increased regulatory focus could result in additional burdens on our business.
The financial industry is becoming more highly regulated. Legislation has been introduced in recent years by both U.S. and foreign governments relating to financial markets and institutions, including alternative asset management firms, which would result in increased oversight and taxation. There has been, and may continue to be, a related increase in regulatory investigations of the trading and other investment activities of alternative investment funds, including our funds. Such investigations may impose additional expenses on us, may require the attention of senior management and may result in fines if any of our funds are deemed to have violated any regulations.
On July 21, 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) was signed into law. The Dodd-Frank Act imposes significant new regulations on the U.S. financial services industry, including aspects of our business and the markets in which we operate. The Dodd-Frank Act imposes a wide array of regulations covering, among other things: (i) oversight and regulation of systemic market risk (including the power to liquidate certain financial institutions); (ii) the ability of the Federal Reserve to regulate certain non-bank financial institutions and to prohibit insured depositary institutions and their affiliates from conducting proprietary trading and investing in private equity funds and hedge funds; (iii) new registration, recordkeeping and reporting requirements for private fund investment advisers; (iv) minimum equity retention requirements for issues of asset-backed securities; (v) the establishment of a new bureau of consumer financial protection; and (vi) new requirements and higher liability standards for credit rating agencies.
Title VII of the Dodd-Frank Act (the “Derivatives Title”) imposes for the first time a comprehensive regulatory regime on over-the-counter (“OTC”) derivatives and the operations of the markets for, and the activities of the dealers in and users of, OTC derivatives. The Derivatives Title, among other things: (i) requires a substantial majority of OTC derivatives, including “swaps” (such as rate, credit, equity and commodity swaps) and “security-based swaps” (swaps and security-based swaps, collectively, “Swaps”), to be traded on a regulated exchange and cleared through a regulated clearing entity, potentially increasing significantly the collateral costs associated with such activities; (ii) creates several new classes of CFTC and SEC registrants, including “swap dealers,” “security-based swap dealers,” “major swap participants” and “major security-based swap participants,” that are, or soon will be, subject to comprehensive regulation, including minimum net capital, margin, disclosure, reporting and recordkeeping requirements, conflicts of interest policies and procedures, new business conduct standards and other regulatory requirements; and (iii) expands the CFTC’s authority to impose speculative position limits with respect to certain Swaps (such as Swaps based on oil, gas, precious metals and agricultural commodities) that perform a price discovery function and aggregate position limits for instruments (including futures and options contracts and other listed instruments that are economically equivalent to such contracts) based on the same underlying physical commodity, including oil, gas, precious metals and agricultural commodities.
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We may be directly affected by the Derivatives Title and its rules because (i) funds we manage trade in Swaps which will be subject to the Derivatives Title and its rules, (ii) we and/or funds we manage may be subject to position limits with respect to certain types of exchange-listed instruments and Swaps that are based on certain underlying physical commodities, and (iii) we and/or funds we manage may become subject to additional rules promulgated by the SEC and the CFTC under the Derivatives Title. We may be indirectly affected by the Derivatives Title and its rules due to changes in the marketplace for Swaps resulting therefrom, and while some such indirect effects could be positive, such as increased transparency and better pricing in the Swaps markets, other indirect effects could be negative, such as fewer Swaps dealers and decreased liquidity.
In addition, the CFTC has eliminated certain exemptions from CPO and CTA registration on which the operators of and advisers to certain of our funds rely. The repeal of these exemptions and the adoption of rules that enhance reporting and compliance obligations of CPOs and CTAs likely will result in increased administrative costs and impose additional regulatory, reporting and compliance burdens on the activities of these operators and advisors.
Many provisions of the Derivatives Title were scheduled to become effective on the later of July 16, 2011 or, to the extent a provision requires a rulemaking, not less than 60 days after publication of the final rule. However, certain key concepts, processes and issues under the Derivatives Title that were to be defined or addressed by the regulators have not yet been defined or addressed in final form. To the extent that these concepts, processes and issues have not yet been defined, the relevant regulator has taken measures to provide temporary relief from certain of these undefined or unaddressed provisions of the Derivatives Title that would have otherwise taken effect beginning on July 16, 2011. Most of the requirements from which the CFTC has provided relief have been gradually implemented during the course of 2013 and the remaining requirements are expected to be implemented through 2014. Similarly, many of the requirements from which the SEC has provided relief are expected to be implemented through 2014. Several of these forthcoming requirements could potentially affect our funds and our business, financial condition or results of operations. At this time we still cannot fully predict what impact the Derivatives Title will have on us, the funds we manage, our counterparties, the financial services industry or the markets, although it will likely have a meaningful impact on the financial services industry and the markets.
The Dodd-Frank Act established the Financial Stability Oversight Council, which is empowered to evaluate non-bank financial companies (including alternative asset management firms and hedge funds) for potential designation as systemically important financial institutions (“SIFIs”). Financial companies designated as SIFIs will be subjected to enhanced supervisory standards relating to, for example, risk-based capital, leverage, risk management, stress testing, resolution planning, credit exposure and concentration limits. The Dodd-Frank Act also gives the FDIC authority to act as receiver of bank holding companies, certain financial companies and their subsidiaries in specific situations under the Orderly Liquidation Authority. If we or any of our funds were to be designated as a SIFI we would be subject to limitations on our ability to conduct certain activities, along with increased costs of doing business in the form of fees and assessments associated with such designation as well as by virtue of increased regulatory compliance costs, all of which would be likely to adversely affect our competitive position.
On December 10, 2013, U.S. financial regulators adopted final regulations to implement the statutory mandate of the “Volcker Rule” contained in Section 619 of the Dodd-Frank Act. Concurrent with the adoption of the final regulations, the Federal Reserve granted a statutorily permitted conformance period, essentially making the effective date of the Volcker Rule July 21, 2015. Under the Volcker Rule, the ability of certain banking entities to acquire as principal, directly or indirectly, ownership interests in certain private investment funds will be limited. As a result, banking entities and their affiliates that would otherwise invest in our funds may choose not to invest in our funds, or to invest less capital in our funds. In addition, banking entities that are invested in our funds may be required to reduce or eliminate such investments due to the requirements of the Volcker Rule. The effectiveness of the Volcker Rule could negatively impact our business, financial condition or results of operations.
The Dodd-Frank Act also requires increased disclosure of executive compensation and provides shareholders with the right to vote on executive compensation. In addition, the Dodd-Frank Act empowers federal regulators to prescribe regulations or guidelines to prohibit any incentive-based payment arrangements that the regulators determine encourage covered financial institutions to take inappropriate risks by providing officers, employees, directors or principal shareholders with excessive compensation or that could lead to a material financial loss by such financial institutions. Until all of the relevant regulations and guidelines have been established, we cannot predict what effect, if any, these developments may have on our business or the markets in which we operate.
Furthermore, the Dodd-Frank Act required the SEC and the CFTC to implement more expansive regulations concerning whistleblowers. The SEC and the CFTC have each adopted rules under this requirement, establishing reward programs for persons who bring information to the SEC or the CFTC. To receive a reward under these programs, the information must “lead to the successful enforcement” of a judicial or administrative action brought by the SEC or CFTC that results in a monetary sanction of $1 million or more against a public company for a violation of the securities laws or the Commodity Exchange Act, respectively. While it is too soon to observe the full effect of these rules, they may result in increased regulatory inquiries or investigations by the SEC or the CFTC. Such inquiries or investigations could impose significant additional expense on us, require the attention of senior management and result in negative publicity and harm to our reputation.
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Effective September 23, 2013, and pursuant to a mandate under the Dodd-Frank Act, the SEC adopted amendments to Rule 506 of Regulation D under the Securities Act ("Rule 506") that disqualify issuers, such as the Och-Ziff funds, from relying on the exemption from registration provided by Rule 506 in connection with a securities offering structured as a private placement if any "covered persons" are deemed to be “bad actors.” Specifically, an issuer generally will be precluded from conducting offerings that rely on the registration exemption provided by Rule 506 if a “covered person” has been subject to a relevant criminal conviction, regulatory or court order or other disqualifying event that occurred on or after September 23, 2013. For these purposes, the “covered persons” of an issuer include directors, certain officers, various entities related to the issuer, solicitors and promoters of the issuer and 20% beneficial owners of the issuer’s voting securities. If any covered person is subject to a disqualifying event, one or more of our funds could lose the ability to raise capital in a Rule 506 offering which would result in significant additional expenses in connection with such offerings. Many of our funds continuously raise capital in reliance on Rule 506. If one or more of our funds were to lose the ability to rely on the Rule 506 exemption, it could adversely affect our business, financial condition or results of operations.
These and many other key aspects of the changes imposed by the Dodd-Frank Act will be established by various regulatory bodies and other groups over the next several years and the Dodd-Frank Act mandates multiple agency reports and studies (which could result in additional legislative or regulatory action). As a result of the regulatory and other action yet to be taken, including with respect to the definition of certain key terms in the Dodd-Frank Act, we do not know what the final regulations under the Dodd-Frank Act will require and it is difficult to predict how significantly the Dodd-Frank Act will affect us. The Dodd-Frank Act will likely increase our administrative costs and could impose additional restrictions on our business.
A number of legislative proposals have been considered by past Congresses that would have characterized some or all of the income recognized from carried interests as ordinary income and would have treated such income as non-qualifying income under the publicly traded partnership rules, thereby precluding us from qualifying for treatment as a partnership for U.S. federal income tax purposes after a transition period or requiring us to restructure our operations to earn such non-qualifying income through taxable subsidiary corporations. In addition, versions of the prior proposals could have, if enacted, (i) prevented us from completing certain types of internal reorganization transactions on a tax-free basis and acquiring other asset management companies on a tax-free basis, (ii) subjected holders of Class A Shares to tax on our conversion into a corporation or restructuring after the transition period, and (iii) increased the portion of any gain realized from the sale or other disposition of a Class A Share that is treated as ordinary income rather than capital gain. The Obama administration has supported changing the treatment of carried interests in its budget proposals for 2014 (similar to its proposals in prior years). More broadly, Congress and the administration may consider potentially significant changes to various aspects of the tax law, including the deductibility of certain expenses and tax treatment of certain entities. Representative David Camp, Chairman of the House Committee on Ways and Means, recently released a discussion draft of proposed legislation that would, among other things, prevent us from qualifying for treatment as a partnership for years beginning after 2016 and characterize some or all of the income we may earn from carried interests as ordinary income for years beginning after 2014.
If the carried interest proposals or Chairman Camp's proposal described above were to be enacted into law or any other change in the tax laws, rules, regulations or interpretations were to preclude us from qualifying for treatment as a partnership for U.S. federal income tax purposes under the publicly traded partnership rules or otherwise impose additional taxes, Class A Shareholders would be negatively affected. We would incur a material increase in our tax liability as a public company from the date any such changes applied to us, which likely would result in a reduction in the value of our Class A Shares.
The European Directive on Alternative Investment Fund Managers (the “AIFMD”) became effective on July 21, 2011, and was due to be transposed by Member States of the European Union (the “EU”) into domestic law by July 22, 2013. The AIFMD is also implemented through a Delegated Regulation, which came into effect on March 19, 2013, and a number of implementing secondary laws and guidelines, some of which remain the subject of consultation. The AIFMD and its associated implementation process is complex and key aspects of it remain unclear and subject to new interpretation.
The AIFMD imposes significant new regulatory requirements on alternative investment fund managers (“AIFMs”), operating within the EU, including with respect to required regulatory authorizations, conduct of business, regulatory capital, valuations, disclosures and marketing. Under a staged implementation, which commenced in July 2013 and which will continue from the latter half of 2015, AIFMs who are organized in the EU (“EU AIFMs”) or non-EU AIFMs who manage alternative investment funds (“AIFs”) other than UCITS funds organized in the EU (“EU AIFs”) may be, or will become, subject to significant restrictions, including the requirement that the AIFMs comply with the requirements of the AIFMD. These requirements include the following: risk management—in particular, liquidity risks; the management and disclosure of conflicts of interest; the fair valuation of assets; the appointment of a depositary in respect of each EU AIF’s assets and the remuneration policies of the AIFM. In addition, certain conditions with regard to regulatory standards, cooperation and transparency will need to be satisfied for non-EU AIFMs seeking to market AIFs into EU Member States where transitional relief is not available. Should we manage an EU organized AIF any time from July 2013, such rules, assuming they apply in full to our business, could impose significant additional costs on the operation of our business in the EU and could limit our operating flexibility. It is expected that national private placement regimes will be available up to at least 2018 for non-EU AIFMs who market EU AIFs, however, in the event that national regulators decide to use powers to impose further marketing restrictions, our ability to raise funds in Europe could still be reduced.
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Where both the principal investment adviser to a non-EU AIF is organized outside the EU, and that non-EU investment adviser appoints a sub-adviser that is organized in the EU to manage some of the AIF’s assets—but retains responsibility for the management of the AIF itself, both the non-EU investment adviser and the EU sub-adviser should (at least until 2018) be subject only to the marketing requirements in the AIFMD (and not the full requirements described above) unless the marketing passport is available for non-EU AIFMs from 2015 and the non-EU investment adviser chooses to become authorized under the AIFMD in order to benefit from this passport, on the basis that the non-EU AIFM, not the EU sub-adviser, is the AIFM for the purposes of the AIFMD. Consequently, such persons should (at least until 2018) be able to continue to market AIFs in the EU on the basis of available national private placement exemptions provided that certain conditions are satisfied and that national regulators do not impose further restrictions. The conditions are that the AIFM complies with certain additional transparency requirements requiring disclosures to investors in the AIF and to EU regulators; the AIFM also complies with requirements relating to the acquisition of substantial stakes in EU companies; and the jurisdictions in which the non-EU AIFM and the relevant AIF are organized satisfy certain conditions with regard to regulatory standards, cooperation and transparency. From 2018 onwards, it is expected that national private placement regimes will be phased out, in which case such persons would, thereafter, need to comply with the AIFMD in full in order to be able to continue to market their AIFs within the EU. Again, such rules could, if they start to apply in full to our business, potentially impose significant additional costs on the operation of our business in the EU and could limit our operating flexibility and our ability to raise funds within the EU. These rules could apply in full any time from July 22, 2013 (if the position regarding EU sub-advisers is clarified contrary to our current interpretation), or from some point between late 2015 and 2018 (if national placement regimes are phased out earlier than expected), or at some point after the beginning of 2018 (when private placement regimes are in fact expected to be phased out).
The regulatory environment in Europe is changing in response to the financial crisis and a number of new measures have been adopted in response. For example, on November 1, 2012, the European Union’s regulation on short selling and certain aspects of credit default swaps (the “Short Selling Regulation”) came into effect along with a number of detailed regulatory technical and implementing technical standards made by the European Commission. The Short Selling Regulation restricts uncovered short sales in EU shares, EU sovereign debt and EU sovereign debt-related credit default swaps. The Short Selling Regulation will also require persons with net short positions in such shares, sovereign debt or uncovered sovereign debt credit default swaps to notify the relevant EU national regulator and, in the case of EU shares, publicly disclose details of specific positions that reach or fall below certain thresholds. Relevant EU national regulators and ESMA are also given power to restrict short selling in exceptional situations, a power which (i) Spain used from November 1, 2012 to January 31, 2013; (ii) Greece used from February 1, 2013 to July 15, 2013; and (iii) Italy used on February 27, 2013 and from June 17, 2013 to June 18, 2013. It is possible that the Short Selling Regulation will make it more difficult to hedge positions and will increase the costs of purchasing EU shares and EU sovereign debt in order to cover short positions thereby adversely affecting our business, financial condition or results of operations. Further, the EU’s Regulation on OTC derivatives, central counterparties and trade repositories (the “EMIR Regulation”) came into force on August 16, 2012, with some provisions in the EMIR Regulation implemented in 2013 through a number of secondary measures. The EMIR Regulation will require certain OTC derivatives counterparties to clear OTC derivatives contracts meeting specific thresholds through central counterparties. In addition, counterparties to OTC derivatives that are not centrally cleared are subject to certain risk mitigation requirements, and EU counterparties to any derivative transaction will be subject to trade reporting requirements. The clearing obligations and margin requirements for non-cleared trades are expected to be phased in during the course of 2014-2019, once the relevant secondary measures are implemented. It is possible that EMIR will result in increased costs for OTC derivative counterparties and also lead to an increase in the costs of, and demand for, the liquid collateral that EMIR requires central counterparties to accept. These increased trading costs and collateral costs may have an adverse impact on our business, financial condition or results of operations. Other measures, if and when implemented, such as, for example, the draft revisions to the current Markets in Financial Instruments Directive regime (which includes proposals on intermediary remuneration, derivatives trading, pre- and post-trade transparency and the banning of certain products) and the Solvency II directive (which applies new capital charges on insurers for fund investments) could have direct and indirect effects on our business. Finally, recent changes to the UCITS directive through UCITS IV and further proposed changes through the UCITS V process could have direct and indirect business effects.
Due to regulatory or legislative action taken by regulators around the world as a result of the financial crisis, taking short positions on certain securities has been restricted. The levels of restriction vary across different jurisdictions and are subject to change over time, including in the short term. These restrictions vary from outright prohibition, disclosure to local regulators and disclosure to the public markets. Such restrictions have made it difficult and in some cases impossible for numerous market participants either to continue to implement their investment strategies or to control the risk of their open positions.
Eleven European Union member states are proposing to implement a financial transaction tax ("FTT"), which is currently being discussed. The proposed FTT was due to take effect from January 1, 2014, although it is now expected to take effect from mid-2014 at the earliest. In its current form, the proposed FTT applies to certain transactions in financial instruments involving financial institutions where at least one party to which is located in a participating EU member state, or where the financial instrument is issued in a participating EU member state. Included within the scope of the FTT are transactions in shares, bonds, derivative contracts and interests in collective investment undertakings. The FTT is currently set to be levied at a minimum rate of 0.1% on all transactions other than derivatives which are to be taxed at a minimum rate of 0.01%. The FTT can be charged to both counterparties, depending on the nature of their activities, their location, and the subject matter of the transaction. The current proposals therefore do affect certain financial institutions located outside the eleven participating European Union member states, as well as certain financial institutions located outside the European Union.
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The eleven EU member states currently participating are Belgium, Germany, Estonia, Greece, Spain, France, Italy, Austria, Portugal, Slovenia and Slovakia. The precise timing and ultimate form of any legislation and related regulations implementing the proposed FTT are not yet fully known because the proposal is still being discussed. We are aware that the UK has launched a challenge in relation to the FTT, and the European Council's legal service has issued a legal opinion finding that the application of the FTT to a financial institution established outside the participating EU member states due to it transacting with a person established within a participating EU member state, is unlawful (although we understand that the European Commission does not agree with this view). It is therefore becoming increasingly unlikely that the FTT can be implemented in its current form, although no formal announcement has been made in this regard. It should be noted that a similar tax has already been introduced in France and Italy and other EU member states may introduce a similar tax. Participating EU member states that implement the FTT, such as France and Italy, are expected to repeal any similar taxes with effect from the implementation of the FTT. Currently, there are limited exemptions to FTT charges.
Any changes to the current framework of the taxation of financial transactions within the EU, including changes contemplated by the proposed FTT, could adversely affect the cost of investment or hedging strategies pursued by the Och-Ziff funds as well as the value and liquidity of certain assets within the funds, such as securities, derivatives and structured finance securities. Additionally, the proposed FTT contains certain anti-avoidance rules that would restrict the ability of the Och-Ziff funds to mitigate the impact of these charges.
The uncertainty within the global financial services business, including the alternative asset management business, concerning the regulations yet to be finalized under the Dodd-Frank Act, provisions included in the proposed tax legislation described above, the AIFMD and other outstanding legislation may continue to adversely impact aspects of the global financial markets and, accordingly, our business, financial condition or results of operations. We may also be adversely affected if additional legislation or regulations are enacted, or by changes in the interpretation or enforcement of existing rules and regulations imposed by the SEC, other U.S. or foreign governmental regulatory authorities or self-regulatory organizations that supervise the financial markets and their participants. Such changes could place limitations on the type of investor that can invest in alternative asset funds or on the conditions under which such investors may invest. Further, such changes may limit the scope of investing activities that may be undertaken by alternative asset managers as well as their funds. It is impossible to determine the extent of the impact of any new laws, regulations or initiatives that may be proposed, or whether any of the proposals will become law. Compliance with additional new laws or regulations could be difficult and expensive and affect the manner in which we conduct business, which could have adverse impacts on our business, financial condition or results of operations.
If third-party investors in our funds exercise their right to remove us as investment manager or general partner of the funds, we would lose the assets under management in such funds, which would eliminate our management fees and incentive income derived from such funds.
The governing agreements of most of our funds provide that, subject to certain conditions, third-party investors in those funds have the right, without cause, to vote to remove us as investment manager or general partner of the fund by a simple majority vote, resulting in the elimination of the assets under management by those funds and the management fees and incentive income derived from those funds. In addition to having a significant negative impact on our business, financial condition or results of operations, the occurrence of such an event would likely result in significant reputational damage to us.
In addition, because our funds generally have an adviser that is registered under the Advisers Act, the management agreements of all of our funds would be terminated upon an “assignment” of these agreements without investor consent, which assignment may be deemed to occur in the event these advisers were to experience a change of control. We cannot be certain that consents required to assignments of our investment management agreements will be obtained if a change of control occurs. “Assignment” of these agreements without investor consent could cause us to lose the fees we earn from such funds.
We have identified a material weakness in our internal control over financial reporting that could have a material adverse effect on our business, financial condition or results of operations and the price of our Class A Shares.
As a public company, we are required to maintain effective internal control over financial reporting in accordance with Section 404 of the Sarbanes-Oxley Act of 2002. As described in “Item 9A. Controls and Procedures,” we have concluded that our internal control over financial reporting was not effective as of December 31, 2012 and December 31, 2013, due to a material weakness in our internal control over financial reporting that existed as of December 31, 2012 and December 31, 2013. The material weakness related to our determination not to consolidate our CLOs. Failure to remediate a material weakness in a timely manner may result in misstatements of our results of operations or restatements of our financial statements.
As described in more detail in “Item 9A. Controls and Procedures,” we have implemented measures designed to remediate the material weakness in our internal control over financial reporting. Notwithstanding our remediation measures, if our internal control over financial reporting remains ineffective, we could be subjected to adverse regulatory consequences, including sanctions or investigations by the SEC, or a negative reaction in the financial markets due to our Class A Shareholders and other potential investors losing confidence in us and the reliability of our financial statements. Any such regulatory consequences or a similar loss of confidence by existing or potential fund investors could affect our ability to retain assets under management and attract new investors and capital flows which, in turn, could reduce the management fees and incentive income that we would earn. Any of these potential consequences could have a material adverse
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effect on our business, financial condition or results of operations and the price of our Class A Shares. There can be no assurances that additional material weaknesses in our internal control will not be identified in the future.
Our failure to deal appropriately with conflicts of interest could damage our reputation and materially adversely affect our business, financial condition or results of operations.
As we have expanded the scope of our business, we increasingly confront potential conflicts of interest relating to our funds’ investment activities. Certain of our funds have overlapping investment objectives and potential conflicts may arise with respect to our decisions regarding how to allocate investment opportunities among or even within those funds. For example, a decision to acquire material non-public information about a company while pursuing an investment opportunity for a particular fund gives rise to a potential conflict of interest when it results in our having to restrict the ability of other funds to buy or sell securities in the public markets. In addition, fund investors and holders of our Class A Shares may perceive conflicts of interest regarding investment decisions for funds in which our executive managing directors and employees, who have and may continue to make significant personal investments, are personally invested.
It is possible that actual, potential or perceived conflicts could give rise to investor dissatisfaction or litigation or regulatory enforcement actions. Appropriately dealing with conflicts of interest is complex and difficult and our reputation could be damaged if we fail, or appear to fail, to deal appropriately with one or more potential or actual conflicts of interest. Regulatory scrutiny of, or litigation in connection with, conflicts of interest would have a material adverse effect on our reputation, which would materially adversely affect our business, financial condition or results of operations in a number of ways, including an inability to raise additional funds and a reluctance of counterparties to do business with us.
Misconduct by our executive managing directors, employees or agents could harm us by impairing our ability to attract and retain investors and subjecting us to significant legal liability, regulatory scrutiny and reputational harm.
There is a risk that our executive managing directors, employees, joint venture partners, consultants or agents could engage in misconduct that materially adversely affects our business. We are subject to a number of obligations and standards arising from our asset management business and our authority over the assets we manage, as well as our status as a public company with securities listed on the NYSE. The violation of these obligations and standards by any of our executive managing directors, employees, joint venture partners, consultants or agents could materially adversely affect our investors, both in our funds and in our Class A Shares, and us. In addition to these numerous and complex obligations, our business requires that we properly deal with confidential matters of great significance to companies in which we may invest or with which we otherwise do business. If our executive managing directors, employees, joint venture partners, consultants or agents were improperly to use or disclose confidential information, we could be subject to litigation, regulatory investigations or sanctions and suffer serious harm to our reputation, financial position and current and future business relationships. Furthermore, there have been a number of recent highly publicized cases involving fraud or other misconduct by employees in the financial services industry generally and there can be no assurance that we will not suffer from similar employee misconduct. It is not always possible to detect or deter employee misconduct, and the precautions we take to detect and prevent this activity have not been and may not be effective in all cases. If one of our executive managing directors, employees, joint venture partners, consultants or agents were to engage in misconduct or were to be accused of such misconduct, even if such allegations were unsubstantiated, our reputation and our business, financial condition or results of operations could be materially adversely affected.
In recent years, the DOJ and the SEC have devoted greater resources to enforcement of the FCPA. In addition, the United Kingdom has recently significantly expanded the reach of its anti-bribery laws. While we have developed and implemented policies and procedures designed to ensure strict compliance by us and our personnel with the FCPA, such policies and procedures may not be effective in all instances to prevent violations. Any determination that we have violated the FCPA or other applicable anti-bribery laws could subject us to, among other things, civil and criminal penalties, material fines, profit disgorgement, injunctions on future conduct, securities litigation and a general loss of investor confidence, any one of which could adversely affect our business, financial condition or results of operations.
We may enter into new businesses, make future strategic investments or acquisitions or enter into joint ventures, each of which may result in additional risks and uncertainties in our business.
We intend, to the extent that market conditions warrant, to grow our business by increasing assets under management and creating new investment platforms and businesses. Accordingly, we may pursue growth through strategic investments, acquisitions or joint ventures, which may include entering into new lines of business in which we may not have extensive experience. In addition, we expect opportunities will arise to acquire, or enter into joint ventures with, other alternative or traditional asset managers. To the extent we make strategic investments or acquisitions, enter into joint ventures, or enter into a new line of business, we will face numerous risks and uncertainties, including risks associated with the required investment of capital and other resources, the possibility that we have insufficient expertise to engage in such activities profitably or without incurring inappropriate amounts of risk, combining or integrating operational and management systems and controls, or loss of investors in our funds due to the perception that we are no longer focusing on our core fund management duties. Entry into certain lines of business may subject us to more complex or extensive new laws and regulations with
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which we may not be familiar, or from which we are currently exempt, and may lead to increased litigation and regulatory risk. If a new business that we enter into generates insufficient revenues or if we are unable to efficiently manage any expansion of our operations, our business, financial condition or results of operations could be materially adversely affected. In the case of joint ventures, we are subject to additional risks and uncertainties in that we may be dependent upon, and subject to liability, losses or reputational damage relating to, systems, controls and personnel that are not under our control.
Changes in the credit markets may negatively impact our ability to refinance our term loan or our ability to otherwise obtain attractive financing for our business, and may increase the cost of such financing if it is obtained, which would lead to higher interest expense or, with respect to our funds, lower-yielding investments, either of which would decrease our earnings. An increase in our borrowing costs may materially adversely affect our business, financial condition or results of operations.
In June 2012, we entered into the Delayed Draw Term Loan, which will mature in November 2016. At that time we will be required to either refinance it by entering into new facilities, which could result in higher borrowing costs, or issuing equity, which would dilute existing shareholders. We could also repurchase or repay the Delayed Draw Term Loan by using cash on hand or cash from the sale of our assets, which would reduce amounts available for compensation of our employees or distribution to our Class A Shareholders and our executive managing directors. No assurance can be given that we will be able to enter into new facilities or issue equity in the future on attractive terms, or at all. Our Delayed Draw Term Loan is a LIBOR-based, floating-rate obligation and the interest expense we incur varies with changes in the applicable LIBOR reference rate. See “Item 7A. Qualitative and Quantitative Disclosures about Market Risk—Interest Rate Risk,” for additional information regarding the impact that a change in LIBOR would have on our annual interest expense associated with our debt obligations.
Following the financial crisis, during which there was a significant lack of liquidity available in the global markets, the markets for debt financing contracted. As a general matter, large commercial banks and other lenders subsequently have demanded higher rates, more restrictive covenants and generally more onerous terms (including posting additional collateral) in order to provide financing or credit, and in some cases will not provide any financing to entities that received or would have received credit prior to the financial crisis. As our term loan and, with respect to our funds, other committed secured credit facilities expire, or if our lenders fail, we will need to replace them by entering into new facilities or finding other sources of liquidity.
To the extent that the debt financing markets make it difficult or impossible for us to refinance our term loan, we may be unable to repay the term loan upon maturity and may be forced to surrender assets to the lenders, sell assets, undergo a recapitalization or seek bankruptcy protection, and substantial doubt may be raised as to our status as a going concern. See “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources” and “—Debt Obligations” for a discussion of our Delayed Draw Term Loan and overall liquidity position.
Furthermore, depending on the facts and circumstances, we may want to use significant borrowings to finance our business operations or growth. If we incur additional substantial indebtedness, we will be exposed to risks associated with the use of substantial borrowings, including those discussed below under “—Risks Related to Our Funds—Our funds may determine to use leverage in investments, which could materially adversely affect our ability to achieve positive rates of return on those investments.”
Risks Related to Our Funds
Our results of operations are dependent on the performance of our funds. Poor performance of our funds will result in reduced revenues and earnings and make it difficult for us to retain or attract investors to our funds, retain and increase assets under management and grow our business. The performance of each fund we manage is subject to some or all of the following risks.
Difficult market conditions can adversely affect our funds in many ways, including by negatively impacting their performance and reducing their ability to raise or deploy capital, which could materially reduce our revenues and adversely affect our business, financial condition or results of operations.
A recurrence of significant disruption and volatility in the global financial markets and economies could impair the investment performance of our funds. Additionally, we may not be able to raise capital for existing or new funds during, or even following, periods of market instability. Although we seek to generate consistent, positive, absolute returns across all market cycles, our funds have been and may be materially affected by conditions in the global financial markets and economic conditions. The global market and economic climate may become increasingly uncertain due to numerous factors beyond our control, including but not limited to, concerns related to unpredictable global market and economic factors, regulatory uncertainty, rising interest rates, inflation or deflation, the availability of credit, performance of financial markets, terrorism or political uncertainty.
A general market downturn, a specific market dislocation or deteriorating economic conditions may cause a material reduction in our revenues and adversely affect our business, financial condition or results of operations by causing:
• | A decline in assets under management, resulting in lower management fees and incentive income. |
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• | An increase in the cost of financial instruments, executing transactions or otherwise doing business. |
• | Lower or negative investment returns, which may reduce assets under management and potential incentive income. |
• | Reduced demand for assets held by our funds, which would negatively affect our funds’ ability to realize value from such assets. |
• | Increased investor redemptions or greater demands for enhanced liquidity or other terms, resulting in a reduction in assets under management, lower revenues and potential increased difficulty in raising new capital. |
Furthermore, while difficult market and economic conditions and other factors can potentially increase investment opportunities over the long term, including with respect to the competitive landscape for the hedge fund industry, such conditions and factors also increase the risk of increased investment losses and additional regulation, which may impair our business model and operations. Our funds may also be materially adversely affected by difficult market conditions if our investment professionals fail to assess the adverse effect of such conditions on our investments, resulting in a significant reduction in the value of those investments. Moreover, challenging market conditions may prompt alternative asset managers to reduce the management fee and incentive income rates they charge in order to retain assets. In response to competitive pressures or for any other reason, we may reduce or change the fee structures of our funds, which could reduce the amount of fees and income that we may earn relative to assets under management.
Most of our funds utilize investment strategies that depend on our ability to appropriately react to, or accurately assess, the occurrence of, certain events, including market and corporate events. If we fail to do so, our funds’ investment performance could be adversely affected in a material way.
The historical returns attributable to our funds should not be considered as indicative of the future results of our funds or any future funds we may raise.
We have presented in this annual report under “Item 1. Business—Overview—Investment Performance” and elsewhere the net composite returns relating to the historical performance of our most significant funds, and we have also referred to other metrics associated with historical returns, such as risk and correlation measures. The returns are relevant to us primarily insofar as they are indicative of incentive income we have earned in prior periods and are not indicative of any future fund returns.
Moreover, with respect to the historical returns of our funds:
• | The historical returns of our funds should not be considered indicative of the future results that should be expected from such funds or from any future funds we may raise. |
• | Our funds’ returns, particularly during periods of more extreme market and economic conditions, have benefited from or been impaired by the existence or lack of investment opportunities and such general market and economic conditions, which may not repeat themselves, and there can be no assurance that our current or future funds will be able to avail themselves of profitable investment opportunities. |
• | The historical rates of return of our funds reflect such funds’ historical expenses, which may vary in the future due to factors beyond our control, including changes in laws or regulations. |
We are subject to counterparty default risks.
Our funds enter into numerous types of financial arrangements with a wide array of counterparties around the world, including loans, swaps, repurchase agreements, securities lending agreements and other derivative and non-derivative contracts. The terms of these contracts are often customized and complex and these arrangements may occur in markets or relate to products that are not currently subject to experienced regulatory oversight. In particular, certain of our funds utilize prime brokerage arrangements with a relatively limited number of counterparties, which has the effect of concentrating the transaction volume (and related counterparty default risk) of these funds with these counterparties.
Our funds are subject to the risk that the counterparty to one or more of these contracts defaults, either voluntarily or involuntarily, under the contract. Any such default may occur rapidly and without prior notice to us. Moreover, if a counterparty defaults, we may be unable to take action to recover our assets or any amounts due to us, either because we lack the contractual ability or because market conditions make it difficult to take effective action. This inability could occur at any time, but particularly in times of market stress, which are precisely the times when defaults may be most likely to occur.
In addition, our risk-management assessments may not accurately anticipate the impact of market stress or counterparty financial condition and, as a result, we may not take sufficient action to reduce our risks effectively. Although each of our funds regularly monitors its credit exposures, default risk may arise from events or circumstances that are difficult to detect, foresee or evaluate. In addition, concerns about, or a default by, one large participant could lead to significant liquidity problems for other participants, which may in turn expose us to significant losses.
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In the event of a counterparty default, particularly a default by a major commercial bank or other financial institution, one or more of our funds could incur material losses, and the resulting market impact of a major counterparty default could harm our business, results of operation and financial condition. In the event that one of our counterparties becomes insolvent or files for bankruptcy, our ability to eventually recover any losses suffered as a result of that counterparty’s default may be limited by the liquidity of the counterparty or the applicable legal regime governing the bankruptcy proceeding.
The counterparty risks that we face have increased in complexity and magnitude as a result of the financial crisis, including the recent sovereign debt crisis in Europe, and resulting impairment or insolvency of a number of major financial institutions that serve as counterparties for derivative contracts and other financial instruments with our funds. The consolidation or elimination of counterparties may also result in concentration of counterparty risk. In addition, counterparties have generally reacted to the ongoing market volatility by tightening their underwriting standards and increasing their margin requirements for all categories of financing, which has the result of decreasing the overall amount of leverage available to our funds and increasing the costs of borrowing.
Poor performance of our funds would cause a decline in our revenues, results of operations and cash flows and could materially adversely affect our ability to retain capital or attract additional capital.
If our funds perform poorly, our revenues, results of operations and cash flows decline because the value of our assets under management decreases, which in turn results in a reduction in management fees. To the extent that our funds perform poorly and such performance is continuing at the end of a relevant performance measurement period, we would experience a reduction in incentive income and, if such reduction was substantial, could result in the elimination of incentive income for a given year and future years until that decrease has been surpassed by positive performance. Poor performance of our funds would make it more difficult for us to raise new capital and may cause investors in our funds to redeem their investments. Investors and potential investors in our funds continually assess our funds’ performance, as well as our ability to raise capital for existing and future funds. Our ability to avoid excessive redemption levels will depend in part on our funds’ continued satisfactory performance. Moreover, poor performance, particularly in our most significant funds, would harm our reputation and competitive standing, which would further impair our ability to retain or attract fund capital. These factors may cause us to reduce or change the fee structure of our funds in order to retain or continue to attract assets under management, which could further reduce the amounts of management fees and incentive income that we may earn relative to assets under management.
Our funds may determine to use leverage in investments, which could materially adversely affect our ability to achieve positive rates of return on those investments.
Our funds use or may choose to use leverage to increase the yield on certain of their investments, although historically they have not borrowed substantial capital either directly or through the use of derivative instruments. The use of leverage poses a significant degree of risk, most notably by significantly increasing the risk of loss associated with leveraged investments that decline in value, and enhances the possibility of a significant loss in the value of the investments in our funds. Our funds may borrow money from time to time to purchase or carry securities. The interest expense and other costs incurred in connection with such borrowing may not be recovered by appreciation in the securities purchased or carried, and will be lost—and the timing and magnitude of such losses may be accelerated or exacerbated—in the event of a decline in the market value of such securities. Volatility in the credit markets increases the degree of risk associated with such borrowing. Gains realized with borrowed funds may cause a fund’s net asset value to increase at a faster rate than would be the case without borrowings. If investment results fail to cover the cost of borrowings, the fund’s net asset value could also decrease faster than if there had been no borrowings. Increases in interest rates could also decrease the value of fixed-rate debt investments made by our funds. To the extent our funds determine to significantly increase their use of leverage, any of the foregoing circumstances could have a material adverse effect on our financial condition, results of operations and cash flows.
The due diligence process that we undertake in connection with investments by our funds may not reveal all facts that may be relevant in connection with making an investment.
Before investments are made by our funds, particularly investments in securities that are not publicly traded, we conduct due diligence that we deem reasonable and appropriate based on the facts and circumstances applicable to each investment. When conducting due diligence, we may be required to evaluate important and complex business, financial, tax, accounting, environmental and legal issues. Outside consultants, legal advisors, accountants and investment bankers may be involved in the due diligence process in varying degrees depending on the type of investment. Nevertheless, when conducting due diligence and making an assessment regarding an investment, we rely on the resources available to us, including information provided by the target of the investment and, in some circumstances, third-party investigations. The due diligence that we carry out with respect to any investment opportunity may not reveal or highlight all relevant facts that may be necessary or helpful in evaluating such investment opportunity, and such an evaluation will not necessarily result in the investment being successful. Moreover, the level of due diligence conducted with respect to a particular investment will vary and we may not properly assess the appropriate amount of diligence for each investment, which may result in losses.
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Our funds may invest in relatively high-risk, illiquid assets, including structured products, and may fail to realize any profits from these activities for a considerable period of time or lose some or all of the principal investments.
Our funds invest in securities that are not publicly traded or that are otherwise illiquid, including complex structured products. There may be no readily available liquidity in these securities, particularly at times of market stress or where many participants may be seeking liquidity at the same time. In many cases, our funds may be prohibited, whether by contract, by applicable securities laws or by the lack of a liquid market, from selling such securities for a period of time. Moreover, even if the securities are publicly traded, large holdings of securities can often be disposed of only over a substantial length of time, exposing the investment returns to risks of downward movement in market prices during the required holding period. Accordingly, under certain conditions, our funds may be forced to either sell securities at lower prices than they had expected to realize or defer, potentially for a considerable period of time, sales that they had planned to make. Investment in illiquid assets involves considerable risk and our funds may lose some or all of the principal amount of such investments.
Valuation methodologies for certain assets in our funds are subject to significant subjectivity and the values established pursuant to such methodologies may never be realized, which could result in significant losses for our funds.
There are no readily ascertainable market prices for the large number of the illiquid investments held by our funds. The fair value of the investments of our funds is determined periodically by us using a number of methodologies permitted by our funds’ valuation policies. These methodologies involve a significant degree of judgment and are based on a number of factors, which may include, without limitations, the nature of the investment, the expected cash flows from the investment, bid or ask prices provided by third parties for the investment, the length of time the investment has been held, the trading price of securities (in the case of publicly traded securities), restrictions on transfer and other recognized valuation methodologies. In addition, because certain of the illiquid investments held by our funds may be in industries or sectors that are under distress or undergoing some uncertainty, such investments may be subject to rapid changes in value caused by sudden company-specific or industry-specific developments.
Because valuations, and in particular valuations of investments for which market quotations are not readily available, are inherently uncertain, may fluctuate over short periods of time and may be based on estimates, determinations of fair value may differ materially from the values that would have resulted if a ready market had existed. Even if market quotations are available for our investments, such quotations may not reflect the value that may actually be realized because of various factors, including the possible illiquidity associated with a large ownership position, subsequent illiquidity in the market for a company’s securities, future market price volatility or the potential for a future loss in market value based on poor industry conditions or the market’s view of overall company and management performance.
Because there is significant uncertainty in the valuation of and in the stability of the value of illiquid investments, the fair values of such investments as reflected in a fund’s net asset value do not necessarily reflect the prices that might actually be obtained when such investments are sold. Realizations at values significantly lower than the values at which investments have been reflected in fund net asset values would result in losses for the applicable fund, a decline in management fees and the loss of potential incentive income. Also, a situation where asset values turn out to be materially different from values reflected in fund net asset values may cause investors to lose confidence in us, which could, in turn, result in redemptions from our funds, difficulties in our ability to raise additional capital or an increased risk of litigation by investors or governmental or self-regulatory organizations. These issues could result in regulatory scrutiny of our valuation methodologies, polices and related disclosures.
Our funds make investments in companies that we do not control, exposing us to the risk of decisions made by others with whom we may not agree.
Investments by our funds will include investments in debt or equity of companies that we do not control. Such investments may be acquired by our funds through trading activities or through purchases of securities from the issuer. Those investments will be subject to the risk that the company in which the investment is made may make business, financial or management decisions contrary to our expectations, with which we do not agree or that the majority stakeholders or the management of the company may take risks or otherwise act in a manner that does not serve our interests. In addition, we may make investments in which we share control over the investment with co-investors, which may make it more difficult for us to implement our investment approach or exit the investment when we otherwise would. If any of the foregoing were to occur with respect to one or more significant investments, the values of such investments by our funds could decrease and our business, financial condition or results of operations could suffer as a result.
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Our funds make investments in companies that are based outside of the United States, exposing us to additional risks not typically associated with investing in companies that are based in the United States.
Many of our funds may invest a significant portion of their assets in the equity, debt, loans or other securities of issuers located outside the United States. Investments in non-U.S. securities involve certain factors not typically associated with investing in U.S. securities, including risks relating to the following:
• | Currency exchange matters, including fluctuations in currency exchange rates and costs associated with conversion of investment principal and income from one currency into another. |
• | Less developed or efficient financial markets than in the United States, which may not enable or permit appropriate hedging techniques or other developed trading activities, leading to potential price volatility and relative illiquidity. |
• | The absence of uniform accounting, auditing and financial reporting standards, practices and disclosure requirements and less government supervision and regulation. |
• | Differences in the legal and regulatory environment, including less-developed or less-comprehensive bankruptcy laws. |
• | Fewer investor protections and less stringent requirements relating to fiduciary duties. |
• | Difficulties in enforcing contracts and filing claims under foreign legal systems. |
• | Less publicly available information in respect of companies in non-U.S. markets. |
• | Certain economic and political risks, including potential exchange control regulations and restrictions on our non-U.S. investments and repatriation of profits on investments or of capital invested, the risks of political, economic or social instability, the possibility of expropriation or confiscatory taxation and adverse economic and political developments. |
• | The possible imposition of non-U.S. taxes or withholding on income and gains recognized with respect to such securities. |
There can be no assurance that adverse developments with respect to such risks will not materially adversely affect our funds’ investments that are held in certain countries or the returns from these investments.
Our funds and certain of our counterparties may have direct or indirect credit exposure to sovereign debt of non-U.S. countries, and disruptions in these economies could have a negative effect on the performance of our funds or our business, financial condition or results of operations.
The financial markets continue to reflect concern and a loss of investor confidence globally about the ability of certain countries to finance their deficits and service growing debt burdens amid difficult economic conditions. The potential for insolvency has led to financial rescue measures for Greece, Portugal and Ireland by Euro-zone countries, the European Central Bank and the International Monetary Fund. The actions required to be taken by those countries as a condition to rescue packages, and by other countries to mitigate similar developments in their economies, have resulted in increased political and economic discord within and among Euro-zone countries. The interdependencies among European economies and financial institutions (in particular the European Central Bank, which has played a growing role during the crisis) have also exacerbated concern regarding the stability of European financial markets generally and certain institutions in particular. Our funds have and may continue to have exposure to non-U.S. sovereign debt, including the debt of a number of European countries whose credit ratings have been downgraded or placed under review in recent months by one or more major rating agencies. Given the scope of our global operations and our exposure to a wide array of counterparties, some of whom may have exposure to the economies of non-U.S. countries, there can be no assurance that persistent or unexpected disruptions in the global financial markets related to, directly or indirectly, non-U.S. sovereign debt will not have a negative impact on our business, financial condition or results of operations.
Risk management activities may materially adversely affect the return on our funds’ investments.
When managing our funds’ exposure to market risks, we may from time to time use hedging strategies and various forms of derivative instruments to limit the funds’ exposure to changes in the relative values of investments that may result from market developments, including changes in prevailing interest rates, currency exchange rates and commodity prices. The success of any hedging transactions generally will depend on our ability to correctly assess the degree of correlation between price movements of the hedging instrument, the position being hedged, the creditworthiness of the counterparty and other factors. As a result, while we may enter into a transaction in order to reduce our exposure to market risks, the transaction may result in poorer overall investment performance than if it had not been executed. Such transactions may also limit the opportunity for gain if the value of a hedged position increases. In addition, the degree of correlation between price movements of the instruments used in connection with hedging activities and price movements in a position being hedged may vary. For a variety of reasons, we may not seek or be successful in establishing a perfect correlation between the instruments used in a hedging or other derivative transaction and the position being hedged. An imperfect correlation could prevent us from achieving the intended result and could give rise to a loss. In addition, it may not be possible to fully or perfectly limit our exposure against all changes in the value of our investment because the value of investments is likely to fluctuate as a result of a number of factors, some of which will be beyond our control or ability to hedge.
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If our risk management processes and systems are ineffective, we may be exposed to material unanticipated losses.
We continue to refine and implement our risk management techniques, strategies and assessment methods, such as the use of statistical and other quantitative and qualitative tools to identify, observe, measure and analyze the risks to which our funds are exposed. These methods, even if properly implemented, may not allow us to fully mitigate the risk exposure of our funds in all economic or market environments, or against all types of risk, including risks that we might fail to identify or anticipate. Some of our strategies for anticipating and managing risk in our funds are based upon our use of historical market behavior statistics, which may not be an accurate predictor of current or future market risks. We apply statistical and other tools to these observations to measure and analyze the risks to which our funds are exposed. Any failure in our risk management systems, whether in design or implementation, to accurately identify and quantify such risk exposure could limit our ability to manage risks in the funds, identify appropriate investment opportunities or realize positive, risk-adjusted returns. Because neither our quantitative nor qualitative risk management processes can anticipate for every investment the economic and financial outcome or timing and other specifics of the outcome, we will, in the course of our activities, incur losses.
Our funds’ investments are subject to numerous additional risks.
Our funds’ investments are subject to numerous additional risks, including the following:
• | The funds may engage in short selling, which is subject to the theoretically unlimited risk of loss because there is no limit on how much the price of a security may appreciate before the short position is closed out. A fund may be subject to losses if a security lender demands return of the lent securities and an alternative lending source cannot be found or if the fund is otherwise unable to borrow securities that are necessary to hedge its positions. |
• | Our funds may be limited in their ability to engage in short selling or other activities as a result of regulatory mandates. Such regulatory actions may limit our ability to engage in hedging activities and therefore impair our investment strategies. In addition, our funds may invest in securities and other assets for which appropriate market hedges do not exist or cannot be acquired on attractive terms. |
• | Our funds may invest in companies with weak financial conditions, poor operating results, substantial financial needs, negative net worth and/or special competitive problems or that are involved in bankruptcy or reorganization proceedings. In such “distressed” situations, it may be difficult to obtain full information as to the exact financial and operating condition of the issuer. Depending on the specific fund’s investment profile, a fund’s exposure to distressed investments may be substantial in relation to the market for those investments and the investments may be illiquid and difficult to transfer. As a result, it may take a number of years for the fair value of our funds’ distressed investments to reflect their intrinsic value as perceived by us. |
• | Credit risk may be exacerbated by a default by any one of several large institutions that are dependent on one another to meet their liquidity or operational needs, so that a default by one institution causes a series of defaults by the other institutions. This “systemic risk” could have a further material adverse effect on the financial intermediaries (such as prime brokers, clearing agencies, clearing houses, banks, securities firms and exchanges) with which the funds transact on a daily basis. Although the U.S. government, including the U.S. Treasury Department and the Federal Reserve, has taken significant actions to prevent a systemic collapse, no assurance can be given that such actions will be sufficient or successful in all cases. |
• | The effectiveness of investment and trading strategies depends largely on the ability to establish and maintain an overall market position in a combination of financial instruments. A fund’s trading orders may not be executed in a timely and efficient manner due to various circumstances, including systems failures or human error. In such event, the funds may only be able to acquire some but not all of the components of the position, or if the overall position were to need adjustment, the funds might not be able to make such adjustment. As a result, the funds would not be able to achieve the market position selected by the investment manager or general partner of such funds, and might incur a loss in liquidating their position. |
• | Fund investments are subject to risks relating to investments in commodities, futures, options and other derivatives, the prices of which are highly volatile and may be subject to the theoretically unlimited risk of loss in certain circumstances, including if the fund writes a call option. Price movements of commodities, futures and options contracts and payments pursuant to swap agreements are influenced by, among other things, interest rates; changing supply and demand relationships; trade, fiscal, monetary and exchange control programs; and policies of governments and national and international political and economic events and policies. The value of futures, options and swap agreements also depends upon the price of the securities underlying them. In addition, the funds’ assets are subject to the risk of the failure of any of the exchanges on which their positions trade or of their clearinghouses or counterparties. |
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Risks Related to Our Organization and Structure
Control by Mr. Och of the combined voting power of our shares could cause or prevent us from engaging in certain transactions, which could materially adversely affect the market price of the Class A Shares or deprive our Class A Shareholders of an opportunity to receive a premium as part of a sale of our Company.
As of December 31, 2013, our executive managing directors control approximately 64.7% of the combined voting power of our Class A Shares and Class B Shares through their ownership of 100% of our Class B Shares and Mr. Och’s and certain other executive officers’ ownership of Class A Shares purchased on the open market. In addition, our executive managing directors will receive additional Class B Shares resulting in additional control upon the conversion of any Och-Ziff Operating Group D Units into Och-Ziff Operating Group A Units. Each of our executive managing directors that owns Class B Shares has granted to the Class B Shareholder Committee, the sole member of which is currently our founder, Mr. Och, an irrevocable proxy to vote all of their Class B Shares as the Committee may determine in its sole discretion. This proxy will terminate upon the later of Mr. Och’s withdrawal, death or disability, or such time as our executive managing directors hold less than 40% of our total combined voting power. Accordingly, Mr. Och currently has the ability to elect all of the members of our Board of Directors and thereby control our management and affairs. In addition, he currently is able to determine the outcome of all matters requiring shareholder approval and will be able to cause or prevent a change of control of our Company or a change in the composition of our Board of Directors, and could preclude any unsolicited acquisition of our Company. The control of voting power by Mr. Och could deprive Class A Shareholders of an opportunity to receive a premium for their Class A Shares as part of a sale of our Company, and might ultimately affect the market price of the Class A Shares. Upon Mr. Och’s withdrawal, death or disability, the Class B Shareholder Committee will consist of either the remaining members of the Partner Management Committee, who shall act by majority vote in such capacity, or an executive managing director elected by majority vote of the remaining members of the Partner Management Committee to serve as the sole member of the Class B Shareholder Committee.
In addition, the shareholders’ agreement among us and our executive managing directors, in their capacity as the Class B shareholders, provides the Class B Shareholder Committee, so long as our executive managing directors and their permitted transferees continue to hold more than 40% of the total combined voting power of our outstanding Class A Shares and Class B Shares, with approval rights over a variety of significant Board actions, including:
• | Any incurrence of indebtedness, other than intercompany indebtedness, in one transaction or a series of related transactions, by us or any of our subsidiaries or controlled affiliates in an amount in excess of approximately 10% of the then existing long-term indebtedness of us and our subsidiaries. |
• | Any issuance by us or any of our subsidiaries or controlled affiliates, in any transaction or series of related transactions, of equity or equity-related shares which would represent, after such issuance, or upon conversion, exchange or exercise, as the case may be, at least 10% of the total combined voting power of our outstanding Class A Shares and Class B Shares other than (i) pursuant to transactions solely among us and our wholly owned subsidiaries, (ii) upon issuances of securities pursuant to the Plan, (iii) upon the exchange by our executive managing directors of Och-Ziff Operating Group A Units for our Class A Shares pursuant to the exchange agreement or (iv) upon conversion of any convertible securities or upon exercise of warrants or options, which convertible securities, warrants or options may be issued and are either outstanding on the date of, or issued in compliance with, the shareholders’ agreement. |
• | Any equity or debt commitment or investment or series of related equity or debt commitments or investments by us or any of our subsidiaries or controlled affiliates in an unaffiliated entity or related group of entities in an amount greater than $250 million. |
• | Any entry by us, any subsidiary or controlled affiliate into a new line of business that does not involve investment management and that requires a principal investment in excess of $100 million. |
• | The adoption of a shareholder rights plan. |
• | Any appointment or removal of a chief executive officer or co-chief executive officer. |
• | The termination of the employment of an executive officer or the active involvement of an executive managing director with us or any of our subsidiaries or controlled affiliates without cause. |
In addition, our operating agreement requires that we obtain the consent of the Class B Shareholder Committee for specified actions primarily relating to our structure so long as any Class B Shares are outstanding. Our structure is intended to ensure that we maintain exchangeability of Och-Ziff Operating Group A Units for Class A Shares on a one-for-one basis. Accordingly, the Class B Shareholder Committee will have the right to approve or consent to actions that could result in an economic disparity between holders of our Class A Shares and other classes of equity, such as the issuance of certain securities, making certain capital contributions, owning or disposing of certain assets, incurring certain indebtedness and conducting business outside of the Och-Ziff Operating Group.
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Our operating agreement contains provisions that reduce fiduciary duties of our directors and officers with respect to potential conflicts of interest against such individuals and limit remedies available to our Class A Shareholders against such individuals for actions that might otherwise constitute a breach of duty.
Our operating agreement provides that in the event a potential conflict of interest exists or arises between any of our executive managing directors, our officers, our directors or their respective affiliates, on the one hand, and us, any of our subsidiaries or any of our shareholders, on the other hand, a resolution or course of action by our Board of Directors shall be deemed approved by all of our shareholders, and shall not constitute a breach of the fiduciary duties of members of the Board to us or our shareholders, if such resolution or course of action is: (i) approved by our Nominating, Corporate Governance and Conflicts Committee, which is composed of independent directors; (ii) approved by shareholders holding a majority of our shares that are disinterested parties; (iii) on terms no less favorable than those generally provided to or available from unrelated third parties; or (iv) fair and reasonable to us. Accordingly, if such a resolution or course of action is approved by our Nominating, Corporate Governance and Conflicts Committee or otherwise meets one or more of the above criteria, shareholders will not be able to successfully assert a claim that such resolution or course of action constituted a breach of fiduciary duties owed to our shareholders by our officers, directors and their respective affiliates. Under the Delaware General Corporation Law, which we refer to as the “DGCL,” in contrast, a corporation is not permitted to automatically exempt Board members from claims of breach of fiduciary duty under such circumstances.
Our operating agreement contains provisions limiting the liability of our officers and directors to us, which also reduces remedies available to our Class A Shareholders for certain acts by such persons.
Our operating agreement also provides that to the fullest extent permitted by applicable law our directors or officers will not be liable to us other than in instances of fraud, gross negligence and willful misconduct. Accordingly, unless our officers or directors commit acts of fraud, gross negligence or willful misconduct, our shareholders may not have remedies available against such individuals under applicable law. Under the DGCL, in contrast, a director or officer would be liable to us for: (i) breach of duty of loyalty to us or our shareholders; (ii) intentional misconduct or knowing violations of the law that are not done in good faith; (iii) improper redemption of stock or declaration of a dividend; or (iv) a transaction from which the director derived an improper personal benefit.
Our operating agreement also provides that we will indemnify our directors and officers for acts or omissions to the fullest extent permitted by law other than in instances of fraud, gross negligence and willful misconduct, against all expenses and liabilities (including judgments, fines, penalties, interest, amounts paid in settlement with the approval of the Company and counsel fees and disbursements) arising from the performance of any of their obligations or duties in connection with their service to us or the operating agreement, including in connection with any civil, criminal, administrative, investigative or other action, suit or proceeding to which any such person may hereafter be made party by reason of being or having been one of our directors or officers. Under the DGCL, in contrast, a corporation can only indemnify directors and officers for acts or omissions if the director or officer acted in good faith, in a manner he reasonably believed to be in the best interests of the corporation, and, in a criminal action, if the officer or director had no reasonable cause to believe his conduct was unlawful.
In the future, we may elect to rely on exceptions from certain corporate governance and other requirements under the rules of the NYSE.
Our executive managing directors control more than 50% of our voting power. We are therefore eligible for the “controlled company” exception from NYSE requirements that our Board of Directors be comprised of a majority of independent directors and that our Compensation Committee and Nominating, Corporate Governance and Conflicts Committee consist solely of independent directors. Although we do not currently intend to utilize this exception, we may in the future determine to do so.
Because our executive managing directors hold their economic interest in our business directly in the Och-Ziff Operating Group, conflicts of interest may arise between them and holders of our Class A Shares, particularly with respect to tax considerations.
As of December 31, 2013, our executive managing directors held 64.1% of the equity in the Och-Ziff Operating Group directly through Och-Ziff Operating Group A Units, rather than through ownership of our Class A Shares. In addition, as of December 31, 2013, our executive managing directors held a 2.3% interest in the Och-Ziff Operating Group in the form of Och-Ziff Operating Group D Units, which are non-equity profit interests. Because they hold their economic interests in our business directly through the Och-Ziff Operating Group, our executive managing directors may have conflicting interests with holders of Class A Shares or with us. For example, our executive managing directors will have different tax positions from holders of our Class A Shares which could influence decisions of the Class B Shareholder Committee and also our Board of Directors regarding whether and when to dispose of assets, and whether and when to incur new or refinance existing indebtedness, especially in light of the existence of the tax receivable agreement. Decisions with respect to these and other operational matters could affect the timing and amounts of payments due to our executive managing directors and the Ziffs under the tax receivable agreement. In addition, the structuring of future transactions and investments may take into consideration our executive managing directors’ tax considerations even where no similar benefit would accrue to us or the holders of Class A Shares.
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We intend to pay regular quarterly distributions but our ability to do so may be limited by our holding company structure, as we are dependent on distributions from the Och-Ziff Operating Group to make distributions and to pay taxes and other expenses.
As a holding company, our ability to make distributions or to pay taxes and other expenses is subject to the ability of our subsidiaries to provide cash to us. We intend to make quarterly distributions to our Class A Shareholders. Accordingly, we expect to cause the Och-Ziff Operating Group to make distributions to the direct owners of Och-Ziff Operating Group Units, currently our intermediate holding companies, our executive managing directors and the Ziffs, pro rata in an amount sufficient to enable us to pay corresponding distributions to our Class A Shareholders and make required tax payments and payments under the tax receivable agreement; however, no assurance can be given that such distributions will or can be made. Our Board of Directors can change our distribution policy or reduce or eliminate our distributions at any time, in its discretion. In addition, the Och-Ziff Operating Group is required to make minimum tax distributions to its direct unit holders, to which our Class A Shareholders may not be entitled, as distributions on Och-Ziff Operating Group B Units to our intermediate holding companies may be used to settle tax liabilities, if any, or other obligations. In addition, the Och-Ziff Operating Group may make distributions to our executive managing directors in respect of their Class C Non-Equity Interests with respect to cash awards granted to them under the PIP or otherwise. As a result, Class A Shareholders may not receive any distributions at a time when our executive managing directors and the Ziffs are receiving distributions on their ownership interests. If the Och-Ziff Operating Group has insufficient funds to make such distributions, we may have to borrow additional funds or sell assets, which could have a material adverse effect on our business, financial condition or results of operations.
Furthermore, by paying cash distributions rather than investing that cash in our business, we might risk slowing the pace of our growth, or not having a sufficient amount of cash to fund our operations, new investments or unanticipated capital expenditures, should the need arise.
There may be circumstances under which we are restricted from making distributions under applicable law or regulation (for example, due to Delaware limited partnership or limited liability company act limitations on making distributions if liabilities of the entity after the distribution would exceed the fair value of the entity’s assets).
The declaration and payment of any future distributions will be at the sole discretion of our Board of Directors, which may change our distribution policy or reduce or eliminate our distributions at any time, in its discretion.
Because we have historically earned and recognized most of our incentive income in the fourth quarter of each year, we anticipate that quarterly distributions in respect of the first three calendar quarters will be disproportionate to distributions in respect of the last calendar quarter, which will typically be paid in the first calendar quarter of the following year. Our Board of Directors will take into account such factors as it may deem relevant, including general economic and business conditions; our strategic plans and prospects; our business and investment opportunities; our financial condition and operating results; working capital requirements and anticipated cash needs; contractual restrictions and obligations, including payment obligations pursuant to the tax receivable agreement and restrictions pursuant to our Delayed Draw Term Loan; legal, tax and regulatory restrictions; and other restrictions and implications on the payment of distributions by us to our Class A Shareholders or by our subsidiaries to us and such other factors as our Board of Directors may deem relevant. Any compensatory payments made to our employees, as well as payments that Och-Ziff Corp makes under the tax receivable agreement and distributions to holders of ownership interests in respect of their tax liabilities arising from their direct ownership of ownership interests, will reduce amounts that would otherwise be available for distribution on our Class A Shares. In addition, discretionary income allocations on Class C Non-Equity Interests as determined by the Chairman of the Partner Management Committee (or, in the event there is no Chairman, the full Partner Management Committee acting by majority vote) in conjunction with our Compensation Committee, relating to cash awards granted to our executive managing directors under the PIP or otherwise, will also reduce amounts available for distribution to our Class A Shareholders. We have granted RSUs that may settle in Class A Shares to certain of our executive managing directors, managing directors or other employees, and to independent members of our Board of Directors. All of these RSUs accrue distributions to be paid if and when the underlying RSUs vest. Distributions may be paid in cash or in additional RSUs that accrue additional distributions and will be settled at the same time the underlying RSUs vest.
The declaration and payment of any distribution may be subject to legal, contractual or other restrictions. For example, as a Delaware limited liability company, we are not permitted to make distributions if and to the extent that after giving effect to such distributions, our liabilities would exceed the fair value of our assets. In addition, we will not be permitted to make distributions if we are in default under our Delayed Draw Term Loan. The Delayed Draw Term Loan also limits the amount of distributions we can pay to our “free cash flow,” as such term is defined in the credit agreement. Our cash needs and payment obligations may fluctuate significantly from quarter to quarter, and we may have material unexpected expenses in any period. This may cause amounts available for distribution to significantly fluctuate from quarter to quarter or may reduce or eliminate such amounts.
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There are a number of risks involving the tax receivable agreement we are party to, including the risk that the Internal Revenue Service may challenge all or part of the tax basis increases and related increased deductions, and a court could sustain such a challenge, even with respect to amounts for which we have made payments pursuant to the tax receivable agreement.
The actual increase in tax basis of the Och-Ziff Operating Group assets resulting from an exchange or from payments under the tax receivable agreement, as well as the amortization thereof and the timing and amount of payments under the tax receivable agreement, will vary based upon a number of factors including the law in effect at the time of an exchange or a payment under the tax receivable agreement, the timing of future exchanges, the timing and amount of prior payments under the tax receivable agreement, the price of our Class A Shares at the time of any exchange, the composition of the Och-Ziff Operating Group’s assets at the time of any exchange, the extent to which such exchanges are taxable and the amount and timing of the income of Och-Ziff Corp and our other intermediate corporate taxpayers that hold Och-Ziff Operating Group B Units in connection with an exchange, if any. Depending upon the outcome of these factors, payments that we may be obligated to make to our executive managing directors and the Ziffs under the tax receivable agreement in respect of exchanges are likely to be substantial. In light of the numerous factors affecting our obligation to make payments under the tax receivable agreement, however, the timing and amounts of any such actual payments are not reasonably ascertainable. See “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Tax Receivable Agreement.”
The Internal Revenue Service (“IRS”) may challenge all or part of increased deductions and tax basis increase, and a court could sustain such a challenge, which could result in a substantial increase in our tax liabilities. Were the IRS to challenge a tax basis increase, our executive managing directors and the Ziffs who have received payments under the tax receivable agreement will not reimburse the corporate taxpayers for any such payments that have been previously made. As a result, in certain circumstances, payments could be made to our executive managing directors and the Ziffs under the tax receivable agreement in excess of the corporate taxpayers’ cash tax savings. The corporate taxpayers’ ability to achieve benefits from any tax basis increase, and the payments to be made under this agreement, will depend upon a number of factors, including the timing and amount of our future income.
Decisions made by our executive managing directors in the course of running our business, in particular decisions made with respect to the sale or disposition of assets or change of control, may influence the timing and amount of payments that are payable to an exchanging or selling executive managing director or the Ziffs under the tax receivable agreement. In general, earlier disposition of assets following an exchange or acquisition transaction will tend to accelerate such payments and increase the present value of the tax receivable agreement, and disposition of assets before an exchange or acquisition transaction will tend to increase the tax liability of our executive managing directors or the Ziffs without giving rise to any rights to receive payments under the tax receivable agreement.
In addition, the tax receivable agreement provides that, upon a merger, asset sale or other form of business combination or certain other changes of control, the corporate taxpayers’ (or their successors’) obligations with respect to exchanged or acquired units (whether exchanged or acquired before or after such change of control) would be based on certain prescribed assumptions, including that the corporate taxpayers would have sufficient taxable income to fully utilize the deductions arising from the increased tax deductions and tax basis and other benefits related to entering into the tax receivable agreement. Accordingly, obligations under the tax receivable agreement may make it more expensive for third parties to acquire control of us and make it more difficult for the holders of Class A Shares to recognize a premium in connection with any such transaction. Finally, we may need to incur debt to finance payments under the tax receivable agreement to the extent our cash resources are insufficient to meet our obligations under the tax receivable agreement, which may or may not be available on favorable terms, if at all.
If we are deemed an investment company under the 1940 Act, the applicable restrictions could make it impracticable for us to continue our business as contemplated and would have a material adverse impact on the market price of our Class A Shares.
We do not believe that we are an “investment company” under the 1940 Act because the nature of our assets and the sources of our income exclude us from the definition of an investment company under the 1940 Act. In addition, we believe our Company is not an investment company under Section 3(b)(1) of the 1940 Act because we are primarily engaged in a non-investment company business. We intend to continue to conduct our operations so that we will not be deemed an investment company. If we were to be deemed an investment company, restrictions imposed by the 1940 Act, including limitations on our capital structure and our ability to transact with affiliates, could make it impractical for us to continue our business as contemplated. In addition, we would no longer be treated, for U.S. federal income tax purposes, as a partnership and our earnings would become taxable as a corporation, which could have a material adverse effect on our business, financial condition or results of operations and the price of our Class A Shares.
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Risks Related to Our Shares
The market price and trading volume of our Class A Shares has been and may continue to be highly volatile, which could result in rapid and substantial losses for our shareholders.
The market price of our Class A Shares has been and may continue to be highly volatile and subject to wide fluctuations. In addition, the trading volume in our Class A Shares can be highly variable, which has caused and may continue to cause significant price variations to occur. The market price of our Class A Shares may fluctuate or decline significantly in the future.
Some of the primary factors that could negatively affect the price of our Class A Shares or result in fluctuations in the price or trading volume of our Class A Shares include:
• | Reductions or lack of growth in our assets under management, whether due to poor investment performance by our funds or redemptions by investors in our funds. |
• | Difficult global market and economic conditions. |
• | Loss of investor confidence in the global financial markets and investing in general and in alternative asset managers in particular. |
• | Competitively adverse actions taken by other hedge fund managers with respect to pricing, fund structure, redemptions, employee recruiting and compensation. |
• | Inability to attract, retain or motivate our active executive managing directors, investment professionals, managing directors or other key personnel. |
• | Inability to repurchase or refinance our term loan either on acceptable terms or at all. |
• | Public or other offerings of additional Class A Shares. |
• | Inability to develop or successfully execute on business strategies or plans. |
• | Unanticipated variations in our quarterly operating results or dividends. |
• | Failure to meet analysts’ earnings estimates. |
• | Publication of negative or inaccurate research reports about us or the asset management industry or the failure of securities analysts to provide adequate coverage of our Class A Shares in the future. |
• | Adverse market reaction to any indebtedness we may incur, Och-Ziff Operating Group Units or cash awards we may grant under our Partner Incentive Plan or otherwise, or any other securities we may issue in the future. |
• | Changes in market valuations of similar companies. |
• | Speculation in the press or investment community about our business. |
• | Additional or unexpected changes or proposed changes in laws or regulations or differing interpretations thereof affecting our business or enforcement of these laws and regulations, or announcements relating to these matters. |
• | Increases in compliance or enforcement inquiries and investigations by regulatory authorities, including as a result of regulations mandated by the Dodd-Frank Act and other initiatives of various regulators that have jurisdiction over us related to the alternative asset management industry. |
• | Adverse publicity about the asset management industry generally or scandals involving hedge funds specifically. |
The price of our Class A Shares may decline due to the large number of shares eligible for future sale and for exchange into Class A Shares.
The market price of our Class A Shares could decline as a result of sales of a large number of our Class A Shares or the perception that such sales could occur. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and price that we deem appropriate. As of December 31, 2013, 169,641,610 Class A Shares were outstanding and 39,229,927 interests were outstanding pursuant to our Amended and Restated 2007 Equity Incentive Plan, with approximately 2,786,200 Class A Shares and other plan interests that remain available for future grant under that plan. The Class A Shares reserved under the Amended and Restated 2007 Equity Incentive Plan are increased on the first day of each fiscal year during the plan’s term by the positive difference, if any, of (i) 15% of the number of outstanding Class A Shares (assuming the exchange of all outstanding Och-Ziff Operating Group A Units for Class A Shares) on the last day of the immediately preceding fiscal year over (ii) the number of shares reserved for issuance under the plan as of such date. As of December 31, 2013, 12,175,737 interests were outstanding pursuant to our 2013 Incentive Plan, and approximately 62,824,263 Class A Shares and other plan interests remain available for future grant under that plan. The Class A Shares reserved under our 2013 Incentive Plan are increased on the first day of each fiscal year during the plan’s term by 15% of any increase in the number of outstanding Class A Shares (assuming the exchange of all outstanding Och-Ziff Operating Group
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Units (other than Och-Ziff Operating Group B Units) for Class A Shares) from the number outstanding on the first day of the immediately preceding fiscal year.
As of December 31, 2013, our executive managing directors and the Ziffs owned an aggregate of 314,135,121 Och-Ziff Operating Group A and D Units. The holder of any Och-Ziff Operating Group A Units generally has the right to exchange each of its Och-Ziff Operating Group A Units for one of our Class A Shares (or, at our option, a cash equivalent), subject to vesting, minimum retained ownership requirements and transfer restrictions. The Och-Ziff Operating Group D Units convert into Och-Ziff Operating Group A Units to the extent we determine that they have become economically equivalent to Och-Ziff Operating Group A Units. Since November 2012, the fifth anniversary of our IPO, there have been no restrictions on exchanges by the Ziffs of their Och-Ziff Operating Group A Units for Class A Shares under our Exchange Agreement, other than certain minimum exchange requirements, and transfers to effect such exchanges will be unrestricted. The Och-Ziff Operating Group A and D Units owned by our Pre-IPO Partners are subject to various new transfer restrictions which limit the number of such Units which may be exchanged for Class A Shares or cash under our Exchange Agreement, and therefore a limited number of Class A Shares may be resold by our Pre-IPO Partners from time to time. See “—Risks Related to Our Business—Our ability to retain and attract executive managing directors, managing directors and other investment professionals is critical to the success and growth of our business.”
We are party to a registration rights agreement with our executive managing directors that provides our executive managing directors and the Ziffs with certain “piggyback” registration rights in connection with registered offerings of our securities and for our executive managing directors to have the ability to cause us to register the Class A Shares they acquire upon exchange of their Och-Ziff Operating Group A Units or otherwise.
RSUs may be settled at the election of a majority of our Board of Directors in Class A Shares or cash. Subject to continued employment over the vesting period, the underlying Class A Shares will be issued, or cash in lieu thereof will be paid, as such RSUs vest. We filed registration statements on Forms S-8 to register an aggregate of 67,188,267 Class A Shares reserved for issuance under our Amended and Restated 2007 Equity Incentive Plan and a registration statement on Form S-8 to register an aggregate of 75,000,000 Class A Shares reserved for issuance under our 2013 Incentive Plan (in each case, not including automatic annual increases thereto). As a result, any Class A Shares issued in respect of the RSUs will be freely transferable by non-affiliates upon issuance and by affiliates under Rule 144, without regard to holding period limitations.
As of December 31, 2013, DIC owns 33,227,285 of our Class A Shares, which it purchased from us concurrent with the consummation of our IPO pursuant to a Securities Purchase and Investment Agreement. As of December 31, 2013, the transfer restrictions imposed by such agreement have terminated with respect to all of DIC’s Class A Shares, and DIC will be able to sell these Class A Shares.
Our executive managing directors’ beneficial ownership of Class B Shares, our shareholders’ agreement, the tax receivable agreement and anti-takeover provisions in our charter documents and Delaware law could delay or prevent a change in control.
Our executive managing directors own all of our Class B Shares, which as of December 31, 2013, represent approximately 64.0% of the total combined voting power of our Company. In addition, our executive managing directors have granted an irrevocable proxy to vote all of such shares to the Class B Shareholder Committee (the sole member of which is currently Mr. Och) as it may determine in its sole discretion. As a result, Mr. Och is currently able to control all matters requiring the approval of shareholders and will be able to prevent a change in control of our Company. In addition, under the shareholders’ agreement entered into in connection with the IPO, the Class B Shareholder Committee has approval rights with respect to certain actions of our Board of Directors, including actions relating to a potential change in control, so long as our executive managing directors continue to hold at least 40% of our total combined voting power, and has the ability to initially designate five of the seven nominees to our Board of Directors, and, under our operating agreement, the Class B Shareholder Committee will have certain consent rights with respect to structural and other changes involving our Company. See “—Risks Related to Our Organization and Structure—Control by Mr. Och of the combined voting power of our shares could cause or prevent us from engaging in certain transactions, which could materially adversely affect the market price of the Class A Shares or deprive our Class A Shareholders of an opportunity to receive a premium as part of a sale of our Company.”
In addition, the tax receivable agreement provides that, upon a merger, asset sale or other form of business combination or certain other changes of control, the corporate taxpayers’ (or any successors’) obligations with respect to exchanged or acquired units (whether exchanged or acquired before or after such change of control) would be based on certain prescribed assumptions, including that the corporate taxpayers would have sufficient taxable income to fully utilize the deductions arising from the increased tax deductions and tax basis and other benefits related to entering into the tax receivable agreement. The provisions may make it more difficult and expensive for a third party to acquire control of us even if a change of control would be beneficial to the interests of our shareholders.
Further, provisions in our operating agreement may make it more difficult and expensive for a third party to acquire control of us even if a change of control would be beneficial to the interests of our shareholders. For example, our operating agreement provides for a staggered board of directors, requires advance notice for proposals by shareholders and nominations, places limitations on convening shareholder meetings, and authorizes the issuance of preferred shares that could be issued by our Board of Directors to thwart a takeover
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attempt. The market price of our Class A Shares could be materially adversely affected to the extent that Mr. Och’s control over us, as well as provisions of our operating agreement, discourage potential takeover attempts that our shareholders may favor.
Finally, some provisions of Delaware law may delay or prevent a transaction that would cause a change in our control. In this regard, Section 203 of the DGCL restricts certain business combinations with interested stockholders in certain situations. In general, this statute prohibits a publicly held Delaware corporation from engaging in a business combination with an interested stockholder for a period of three years after the date of the transaction by which that person became an interested stockholder, unless the business combination is approved in a prescribed manner. For purposes of Section 203, a business combination includes a merger, asset sale or other transaction resulting in a financial benefit to the interested stockholder, and an interested stockholder is a person who, together with affiliates and associates, owns, or within three years prior, did own, 15% or more of voting stock. While Section 203 does not apply to limited liability companies, such companies may elect to utilize it. Although we currently have elected not to utilize Section 203, we may in the future determine to do so.
Risks Related to Taxation
Our structure involves complex provisions of U.S. federal income tax law for which no clear precedent or authority may be available. Our structure also is subject to potential legislative, judicial or administrative change and differing interpretations, possibly on a retroactive basis.
The U.S. federal income tax treatment of holders of the Class A Shares depends in some instances on determinations of fact and interpretations of complex provisions of U.S. federal income tax law for which no clear precedent or authority may be available. You should be aware that the U.S. federal income tax rules are constantly under review by persons involved in the legislative process, the IRS, and the U.S. Treasury Department, frequently resulting in revised interpretations of established concepts, statutory changes, revisions to regulations and other modifications and interpretations. The IRS pays close attention to the proper application of tax laws to partnerships. The present U.S. federal income tax treatment of an investment in the Class A Shares may be modified by administrative, legislative or judicial interpretation at any time, possibly on a retroactive basis, and any such action may affect investments and commitments previously made. For example, changes to the U.S. federal tax laws and interpretations thereof could make it more difficult or impossible to meet the qualifying income exception for us to be treated as a partnership for U.S. federal income tax purposes that is not taxable as a corporation, affect or cause us to change our investments and commitments, change the character or treatment of portions of our income (including, for instance, treating carried interest income as entirely ordinary income), affect the tax considerations of an investment in us and adversely affect an investment in our Class A Shares. “Carried interest” is a term often used in the marketplace as a general reference to describe a general partner’s right to receive its incentive income in the form of a profit allocation eligible for capital gains tax treatment (to the extent that the carried interest consists of capital gains). See “—Legislation changing the treatment of carried interest has been considered that would, if enacted, preclude us from qualifying for treatment as a partnership for U.S. federal income tax purposes under the publicly traded partnership rules. Our structure also is subject to other potential legislative, judicial or administrative changes and differing interpretations, possibly on a retroactive basis.”
Our organizational documents and agreements permit the Board of Directors to modify our operating agreement from time to time, without the consent of the holders of Class A Shares, in order to address certain changes in U.S. federal income tax regulations, legislation or interpretation. In some circumstances, such revisions could have a material adverse impact on some or all of the holders of our Class A Shares. Moreover, we will apply certain assumptions and conventions in an attempt to comply with applicable rules and to report income, gain, deduction, loss and credit to holders in a manner that reflects such holders’ beneficial ownership of partnership items, taking into account variation in ownership interests during each taxable year because of trading activity. However, these assumptions and conventions may not be in compliance with all aspects of applicable tax requirements. It is possible that the IRS will assert successfully that the conventions and assumptions used by us do not satisfy the technical requirements of the Internal Revenue Code of 1986, as amended, and/or Treasury regulations and could require that items of income, gain, deductions, loss or credit, including interest deductions, be adjusted, reallocated, or disallowed, in a manner that adversely affects holders of the Class A Shares.
Legislation changing the treatment of carried interest has been considered that would, if enacted, preclude us from qualifying for treatment as a partnership for U.S. federal income tax purposes under the publicly traded partnership rules. Our structure also is subject to other potential legislative, judicial or administrative changes and differing interpretations, possibly on a retroactive basis.
A number of legislative proposals have been considered by past Congresses that would have characterized some or all of the income recognized from carried interests as ordinary income and would have treated such income as non-qualifying income under the publicly traded partnership rules, thereby precluding us from qualifying for treatment as a partnership for U.S. federal income tax purposes after a transition period or requiring us to restructure our operations to earn such non-qualifying income through taxable subsidiary corporations. In addition, versions of the prior proposals could have, if enacted, (i) prevented us from completing certain types of internal reorganization transactions on a tax-free basis and acquiring other asset management companies on a tax-free basis, (ii) subjected holders of Class A Shares to tax on our conversion into a corporation or restructuring after the transition period, and (iii) increased the portion of any gain realized from the sale or other disposition of a Class A Share that is treated as ordinary income rather than capital gain. The
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Obama administration has supported changing the treatment of carried interests in its budget proposals for 2014 (similar to its proposals in prior years). Representative David Camp, Chairman of the House Committee on Ways and Means, recently released a discussion draft of proposed legislation that would, among other things, prevent us from qualifying for treatment as a partnership for years beginning after 2016 and characterize some or all of the income we may earn from carried interests as ordinary income for years beginning after 2014.
States, including New York, have also considered legislation to increase taxes with respect to carried interests and, as a result of widespread budget deficits, several states have evaluated proposals to subject partnerships to entity level taxation through the imposition of state income, franchise or other forms of taxation. More broadly, Congress and the administration may consider potentially significant changes to various aspects of the tax law, including the deductibility of certain expenses and tax treatment of certain entities.
If the carried interest proposals or Chairman Camp's proposal described above were to be enacted into law or any other change in the tax laws, rules, regulations or interpretations were to preclude us from qualifying for treatment as a partnership for U.S. federal income tax purposes under the publicly traded partnership rules or otherwise impose additional taxes, Class A Shareholders would be negatively affected because we would incur a material increase in our tax liability as a public company from the date any such changes applied to us, which likely would result in a reduction in the value of our Class A Shares.
You may be subject to U.S. federal income tax on your share of our taxable income, regardless of whether you receive any cash distributions from us.
So long as we are not required to register as an investment company under the 1940 Act and 90% of our gross income for each taxable year constitutes “qualifying income” within the meaning of the Code on a continuing basis, we will be treated, under current law, as a partnership for U.S. federal income tax purposes and not as an association or a publicly traded partnership taxable as a corporation. You may be subject to U.S. federal, state, local and possibly, in some cases, foreign income taxation on your allocable share of our items of income, gain, loss, deduction and credit (including our allocable share of those items of any entity in which we invest that is treated as a partnership or is otherwise subject to tax on a flow-through basis) for each of our taxable years ending with or within your taxable year, regardless of whether or not you receive cash distributions from us. You may not receive cash distributions equal to your allocable share of our net taxable income or even the tax liability that results from that income. Even in cases where we make cash distributions, our taxable income and losses will be apportioned among Class A Shareholders in a manner that may not correspond with the timing of cash distributions. In addition, certain of our holdings, including holdings, if any, in a Controlled Foreign Corporation, which we refer to as “CFC,” and a Passive Foreign Investment Company, which we refer to as “PFIC,” may produce taxable income prior to the receipt of cash relating to such income, and holders of our Class A Shares that are United States persons will be required to take such income into account in determining their taxable income. Under our operating agreement, in the event of an inadvertent partnership termination in which the IRS has granted us limited relief, each holder of our Class A Shares also is obligated to make such adjustments as are required by the IRS to maintain our status as a partnership. Such adjustments may require persons who hold our Class A Shares to recognize additional amounts in income during the years in which they hold such shares. We may also be required to make payments to the IRS.
There can be no assurance that amounts paid as distributions on Class A Shares will be sufficient to cover the tax liability arising from ownership of Class A Shares.
Any distributions paid on Class A Shares will not take into account your particular tax situation (including the possible application of the alternative minimum tax) and, therefore, because of the foregoing as well as other possible reasons, may not be sufficient to pay your full amount of tax based upon your share of our net taxable income. In addition, the actual amount and timing of distributions will always be subject to the discretion of our Board of Directors and we cannot assure you that we will in fact pay cash distributions as currently intended. In particular, the amount and timing of distributions will depend upon a number of factors, including, among others:
• | General business and economic conditions and our strategic plans and prospects. |
• | Amounts necessary or appropriate to provide for the conduct of our business, including to pay operating and other expenses. |
• | Amounts necessary to make appropriate investments in our business and our funds and the timing of such investments. |
• | Our actual results of operations and financial condition. |
• | Restrictions imposed by our operating agreement and Delaware law. |
• | Contractual restrictions, including restrictions imposed by our term loan credit agreement and payment obligations under our tax receivable agreement. |
• | Cash payments to our executive managing directors, including distributions in respect of their Class C Non-Equity Interests, that we may make in connection with awards under our Partner Incentive Plan or otherwise, and compensatory payments made to our employees. |
• | The amount of cash that is generated by our investments. |
• | Cash needed to fund liquidity requirements. |
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• | Other factors that our Board of Directors deems relevant. |
Even if we do not distribute cash in an amount that is sufficient to fund your tax liabilities, you will still be required to pay income taxes on your share of our taxable income.
If we were to be treated as a corporation for U.S. federal income tax purposes, the value of the Class A Shares may be materially adversely affected.
We have not requested, and do not plan to request, a ruling from the IRS on our treatment as a partnership for U.S. federal income tax purposes, or on any other matter affecting us. Under current law and assuming full compliance with the terms of our operating agreement (and other relevant documents), we believe that we would be treated as a partnership, and not as an association or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes.
In general, if an entity that would otherwise be classified as a partnership for U.S. federal income tax purposes is a “publicly traded partnership” (as defined in the Code) it will be nonetheless treated as a corporation for U.S. federal income tax purposes, unless the exception described below, and upon which we intend to rely, applies. A publicly traded partnership will, however, be treated as a partnership, and not as a corporation for U.S. federal income tax purposes, so long as 90% or more of its gross income for each taxable year constitutes “qualifying income” within the meaning of the Code and it is not required to register as an investment company under the 1940 Act. We refer to this exception as the “qualifying income exception.”
Qualifying income generally includes dividends, interest, capital gains from the sale or other disposition of stocks and securities and certain other forms of investment income. We expect that our income generally will consist of interest and dividends (including dividends from Och-Ziff Corp), capital gains and other types of qualifying income, such as income from notional principal contracts, securities loans, options, forward contracts and future contracts. No assurance can be given as to the types of income that will be earned in any given year. If we fail to satisfy the qualifying income exception described above, items of income and deduction would not pass through to holders of the Class A Shares and holders of the Class A Shares would be treated for U.S. federal (and certain state and local) income tax purposes as shareholders in a corporation. In such a case, we would be required to pay income tax at regular corporate rates on all of our income. In addition, we would likely be liable for state and local income and/or franchise taxes on all of such income. Moreover, dividends to holders of the Class A Shares would constitute ordinary dividend income taxable to such holders to the extent of our earnings and profits, and the payment of these dividends would not be deductible by us. Taxation of us as a publicly traded partnership taxable as a corporation could result in a material adverse effect on our cash flows and the after-tax returns for holders of Class A Shares and thus could result in a substantial reduction in the value of the Class A Shares.
Tax gain or loss on disposition of our Class A Shares could be more or less than expected.
If you sell your Class A Shares, you will recognize a gain or loss equal to the difference between the amount realized and the adjusted tax basis in those Class A Shares. Prior distributions to you in excess of the total net taxable income allocated to you, which decreased the tax basis in your Class A Shares, will in effect become taxable income to you if the Class A Shares are sold at a price greater than your tax basis in those Class A Shares, even if the price is less than the original cost.
We cannot match transferors and transferees of our Class A Shares, and we have therefore adopted certain income tax accounting positions that may not conform with all aspects of applicable tax requirements. The IRS may challenge this treatment, which could materially adversely affect the value of our Class A Shares.
Because we cannot match transferors and transferees of Class A Shares, we have adopted depreciation, amortization and other tax accounting positions that may not conform with all aspects of existing Treasury regulations. A successful IRS challenge to those positions could materially adversely affect the amount of tax benefits available to our holders. It also could affect the timing of these tax benefits or the amount of gain on the sale of Class A Shares and could have a negative impact on the value of our Class A Shares or result in audits of and adjustments to our Class A Shareholders’ tax returns.
As we currently do not intend to make, or cause to be made, an otherwise available election under Section 754 of the Internal Revenue Code to adjust our asset basis or the asset basis of OZ Advisors II, a holder of Class A Shares could be allocated more taxable income in respect of those shares prior to disposition than if such an election were made.
We have not made and currently do not intend to make, or cause to be made, an election to adjust asset basis under Section 754 of the Internal Revenue Code with respect to the Registrant or OZ Advisors II. Without such an election, there will generally be no adjustment to the basis of the assets of OZ Advisors II upon our acquisition of interests in OZ Advisors II in connection with an exchange of Och-Ziff Operating Group A Units for Class A Shares, or to the assets of the Registrant or of OZ Advisors II upon a subsequent transferee’s acquisition of Class A Shares from a prior holder of such shares, even if the purchase price for those interests or
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shares, as applicable, is greater than the share of the aggregate tax basis of the assets of the Registrant or OZ Advisors II attributable to those interests or units immediately prior to the acquisition. Consequently, upon a sale of an asset by the Registrant or OZ Advisors II, gain allocable to a holder of Class A Shares could include built-in gain in the asset existing at the time the Registrant acquired those interests, or such holder acquired such shares, which built-in gain would otherwise generally be eliminated if a Section 754 election had been made.
The sale or exchange of 50% or more of our capital and profit interests will result in the termination of our Company as a partnership for federal income tax purposes.
We will be considered to have been terminated as a partnership for federal income tax purposes if there is a sale or exchange of 50% or more of the total interests in our capital and profits within a 12-month period. A termination would, among other things, result in the closing of our taxable year for all holders and could result in a deferral of depreciation deductions allowable in computing our taxable income.
Complying with certain tax-related requirements may cause us to forego otherwise attractive business or investment opportunities or enter into acquisitions, borrowings, financings or arrangements we may not have otherwise entered into.
In order for us to be treated as a partnership for U.S. federal income tax purposes, and not as an association or publicly traded partnership taxable as a corporation, we must meet the qualifying income exception discussed above on a continuing basis and we must not be required to register as an investment company under the 1940 Act. In order to effect such treatment we (or our subsidiaries) may be required to invest through foreign or domestic corporations, forego attractive business or investment opportunities or enter into borrowings or financings we may not have otherwise entered into. This may materially adversely affect our ability to operate solely to maximize our cash flows. Our structure also may impede our ability to engage in certain corporate acquisitive transactions because we generally intend to hold all of our assets through the Och-Ziff Operating Group. In addition, we may be unable to participate in certain corporate reorganization transactions that would be tax free to our holders if we were a corporation. To the extent we hold assets other than through the Och-Ziff Operating Group, we will make appropriate adjustments to the Och-Ziff Operating Group agreements so that distributions to our executive managing directors, the Ziffs and us would be the same as if such assets were held at that level.
We may not be able to invest in certain assets, other than through a taxable corporation.
In certain circumstances, we or one of our subsidiaries may have an opportunity to invest in certain assets through an entity that is characterized as a partnership for U.S. federal income tax purposes, where the income of such entity may not be “qualifying income” for purposes of the publicly traded partnership rules. In order to manage our affairs so that we will meet the qualifying income exception, we may either refrain from investing in such entities or, alternatively, we may structure our investment through an entity classified as a corporation for U.S. federal income tax purposes. If the entity were a U.S. corporation, it would be subject to U.S. federal income tax on its operating income, including any gain recognized on its disposal of its interest in the entity in which the opportunistic investment has been made, as the case may be, and such income taxes would reduce the return on that investment.
The IRS could assert that we are engaged in a U.S. trade or business and that some portion of our income is properly treated as effectively connected income, which we refer to as “ECI,” with respect to non-U.S. holders of Class A Shares. Moreover, certain REIT dividends and other stock gains may be treated as effectively connected income with respect to non-U.S. holders of Class A Shares.
While we expect that our method of operation will not result in a determination that we are engaged in a U.S. trade or business, there can be no assurance that the IRS will not assert successfully that we are engaged in a U.S. trade or business and that some portion of our income is properly treated as ECI with respect to non-U.S. holders. Moreover, dividends paid by an investment that we make in a Real Estate Investment Trust, which we refer to as a “REIT,” that is attributable to gains from the sale of U.S. real property interests will, subject to certain exceptions, and sales of certain investments in the stock of U.S. corporations owning significant U.S. real property may, be treated as effectively connected income with respect to non-U.S. holders. In addition, certain income of non-U.S. holders from U.S. sources not connected to any such U.S. trade or business conducted by us could be treated as ECI. To the extent our income is treated as ECI, non-U.S. holders generally would be subject to withholding tax on their allocable shares of such income and would be required to file a U.S. federal income tax return for such year reporting their allocable shares of income effectively connected with such trade or business and any other income treated as ECI, and would be subject to U.S. federal income tax at regular U.S. tax rates on any such income (state and local income taxes and filings may also apply in that event). Non-U.S. holders that are treated as corporations for U.S. federal income tax purposes may also be subject to a 30% branch profits tax on such income.
Class A Shareholders may be subject to foreign, state and local taxes and return filing requirements as a result of investing in our Class A Shares.
While it is expected that our method of operation will not result in a determination that the holders of our Class A Shares, solely on account of their ownership of Class A Shares, are engaged in trade or business so as to be taxed on any part of their allocable shares of our
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income or subjected to tax return filing requirements in any jurisdiction in which we conduct activities or own property, there can be no assurance that the Class A Shareholders, on account of owning Class A Shares, will not be subject to certain taxes, including foreign, state and local income taxes, unincorporated business taxes and estate, inheritance or intangible taxes, imposed by the various jurisdictions in which we conduct activities or own property now or in the future, even if the Class A Shareholders do not reside, or are not otherwise subject to such taxes, in any of those jurisdictions. Consequently, Class A Shareholders also may be required to file foreign, state and local income tax returns in some or all of these jurisdictions. Furthermore, Class A Shareholders may be subject to penalties for failure to comply with those requirements. It is the responsibility of each Class A Shareholder to file all United States federal, foreign, state and local tax returns that may be required of such Class A Shareholder.
Our delivery of required tax information for a taxable year may be subject to delay, which may require a Class A Shareholder to request an extension of the due date for their income tax returns.
We have agreed to use reasonable efforts to furnish to you tax information (including Schedule K-1) which describes your allocable share of our income, gains, losses and deductions for our preceding taxable year. Delivery of this information by us will be subject to delay in the event of, among other reasons, the late receipt of any necessary tax information from lower-tier entities. It is therefore possible that, in any taxable year, our shareholders will need to apply for extensions of time to file their tax returns.
An investment in Class A Shares will give rise to UBTI to certain tax-exempt holders of Class A Shares.
Due to ownership interests we will hold in entities that are treated as partnerships, or are otherwise subject to tax on a flow-through basis, which will incur indebtedness or may engage in a trade or business, we will derive unrelated business taxable income, which we refer to as “UBTI,” from “debt-financed” property or from such trade or business, as applicable, and, thus, an investment in Class A Shares will give rise to UBTI to certain tax-exempt holders of Class A Shares. Och-Ziff Holding may borrow funds from Och-Ziff Corp or third parties from time to time to make investments. These investments will give rise to UBTI from “debt-financed” property.
We may hold or acquire certain investments through an entity classified as a PFIC or CFC for U.S. federal income tax purposes.
Certain of our investments may be in foreign corporations or may be acquired through a foreign subsidiary that would be classified as a corporation for U.S. federal income tax purposes. Such an entity may be a PFIC or a CFC for U.S. federal income tax purposes. U.S. holders of Class A Shares indirectly owning an interest in a PFIC or a CFC may experience adverse U.S. tax consequences.
Special tax considerations may apply to mutual fund investors.
U.S. mutual funds that are treated as regulated investment companies, or RICs, for U.S. federal income tax purposes are required, among other things, to meet an annual 90% gross income and a quarterly 50% asset value test under Section 851(b) of the Internal Revenue Code of 1986, as amended, to maintain their favorable U.S. federal income tax status. The treatment of an investment by a RIC in Class A Shares for purposes of these tests will depend on whether our partnership will be treated as a “qualified publicly traded partnership.” If our partnership is so treated, then the Class A Shares themselves are the relevant assets for purposes of the 50% asset value test and the net income from the Class A Shares is the relevant gross income for purposes of the 90% gross income test. If, however, our partnership is not so treated, then the relevant assets are the RIC’s allocable share of the underlying assets held by our partnership and the relevant gross income is the RIC’s allocable share of the underlying gross income earned by our partnership. Whether our partnership will qualify as a “qualified publicly traded partnership” depends on the exact nature of its future investments, but we believe our partnership is not a “qualified publicly traded partnership.” We expect, however, that at least 90% of our annual gross income from the underlying assets held by our partnership will consist of dividends, interest and gains from the sale of securities or other income that qualifies for the RIC gross income test described above. As discussed above under “—You may be subject to U.S. federal income tax on your share of our taxable income, regardless of whether you receive any cash distributions from us,” RICs investing in Class A Shares may recognize income for U.S. federal income tax purposes without receiving a corresponding cash distribution. RICs should consult their own tax advisors about the U.S. tax consequences of an investment in Class A Shares.
Item 1B. | Unresolved Staff Comments |
None.
Our principal executive offices are located in leased office space in New York. We also lease space for our operations in London, Hong Kong, Mumbai, Beijing and Dubai. The terms of these leases vary, but generally are long term. We believe that our existing facilities are adequate to meet our current requirements and we anticipate that suitable additional or substitute space will be available, as necessary, upon favorable terms.
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We are not currently subject to any pending judicial, administrative or arbitration proceedings that we expect to have a material impact on our consolidated financial statements. We are from time to time involved in litigation and claims incidental to the conduct of our business. Like other businesses in our industry, we are subject to extensive scrutiny by regulatory agencies globally that have, or may in the future have, regulatory authority over us and our business activities. This has resulted in, or may in the future result in, regulatory agency investigations, litigation and subpoenas, and related sanctions and costs. See “Item 1A. Risk Factors—Risks Related to Our Business—Extensive regulation of our business affects our activities and creates the potential for significant liabilities and penalties. Our reputation, business, financial condition or results of operations could be materially affected by regulatory issues” and “Item 1A. Risk Factors—Risks Related to Our Business—Increased regulatory focus could result in additional burdens on our business.” See Note 15 to our consolidated financial statements included in this Form 10-K for additional information, which is incorporated herein by reference.
Item 4. | Mine Safety Disclosures |
None.
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PART II
Item 5. | Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities |
Market for Registrant’s Common Equity
Our Class A Shares are listed and traded on the NYSE under the symbol “OZM.” The following table presents information on the high and low last reported sales prices as reported on the NYSE for our Class A Shares for the periods presented:
| Price Range of Our Class A Shares | |
| High | | | Low | |
2013 | | | | | | | |
First quarter | $ | 10.72 | | | $ | 8.83 | |
Second quarter | $ | 11.64 | | | $ | 9.24 | |
Third quarter | $ | 11.50 | | | $ | 10.44 | |
Fourth quarter | $ | 14.87 | | | $ | 11.14 | |
| | | | | | | |
2012 | | | | | | | |
First quarter | $ | 10.72 | | | $ | 8.35 | |
Second quarter | $ | 9.72 | | | $ | 6.81 | |
Third quarter | $ | 9.70 | | | $ | 6.84 | |
Fourth quarter | $ | 10.30 | | | $ | 8.74 | |
Our Class B Shares are not listed on the NYSE and there is no, and we do not expect there would be any, other established trading market for these shares. All of our Class B Shares are owned by our executive managing directors and have no economic rights, but entitle holders to one vote per share on all matters submitted to a vote of our Class A Shareholders.
As of March 13, 2014, there were 11 holders of record of our Class A Shares. A substantially greater number of holders of our Class A Shares are “street name” or beneficial holders, whose shares are held of record by banks, brokers and other financial institutions.
Dividends
The following table presents the cash dividends paid on our Class A Shares in 2014, as well as for the two most recent fiscal years:
Payment Date | | Record Date | | Dividend per Share | |
February 25, 2014 | | February 18, 2014 | | $ | 1.12 | |
November 22, 2013 | | November 15, 2013 | | $ | 0.25 | |
August 19, 2013 | | August 12, 2013 | | $ | 0.14 | |
May 20, 2013 | | May 13, 2013 | | $ | 0.28 | |
February 26, 2013 | | February 19, 2013 | | $ | 0.75 | |
November 19, 2012 | | November 12, 2012 | | $ | 0.12 | |
August 20, 2012 | | August 13, 2012 | | $ | 0.14 | |
May 21, 2012 | | May 14, 2012 | | $ | 0.10 | |
February 28, 2012 | | February 21, 2012 | | $ | 0.04 | |
We have historically recognized most of our incentive income and expensed discretionary cash bonuses in the fourth quarter of each year. As a result, quarterly dividends with respect to the fourth quarter are not indicative of quarterly dividends with respect to the first three quarters of the year. Dividends with respect to each quarter are typically paid in the following quarter. The declaration and payment of any future dividends will be at the sole discretion of our Board of Directors, which may change our distribution policy at any time. Our ability to make such distributions may be limited by, among other things, contractual restrictions and legal, tax and regulatory restrictions applicable to us and our subsidiaries. For additional information, please see “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources—Dividends and Distributions.”
Recent Sales of Unregistered Securities
During the fourth quarter of 2013, we issued 6,000,000 Class A Shares to the Ziffs in exchange for an equal number of Och-Ziff Operating Group A Units. The Och-Ziff Operating Group A Units surrendered by the Ziffs were automatically canceled upon the exchange. The issuance of the Class A Shares and cancellation of the surrendered Och-Ziff Operating Group A Units were pursuant to the terms of the exchange agreement by and among Och-Ziff Capital Management Group LLC, Och-Ziff Corp, Och-Ziff Holding, OZ Management, OZ Advisors, OZ Advisors II, our executive managing directors and the Ziffs. The Class A Shares were issued without registration under the Securities Act in reliance on Section 4(a)(2) of Securities Act.
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Item 6. | Selected Financial Data |
| As of and for the Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | | | 2010 (Restated) | | | 2009 (Restated) | |
| (dollars in thousands) | |
Selected Operating Statement Data | | | | | | | | | | | | | | | | | | | |
Total revenues | $ | 1,895,923 | | | $ | 1,226,602 | | | $ | 616,424 | | | $ | 924,503 | | | $ | 743,288 | |
Total expenses | | 826,879 | | | | 1,927,956 | | | | 2,040,313 | | | | 2,099,156 | | | | 2,158,436 | |
Total other income | | 282,468 | | | | 212,984 | | | | 19,782 | | | | 23,582 | | | | 81,674 | |
Income taxes | | 95,687 | | | | 82,861 | | | | 59,581 | | | | 41,078 | | | | 37,703 | |
Consolidated Net Income (Loss) | $ | 1,255,825 | | | $ | (571,231 | ) | | $ | (1,463,688 | ) | | $ | (1,192,149 | ) | | $ | (1,371,177 | ) |
Allocation of Consolidated Net Income (Loss) | | | | | | | | | | | | | | | | | | | |
Class A Shareholders | $ | 261,767 | | | $ | (310,723 | ) | | $ | (418,990 | ) | | $ | (294,413 | ) | | $ | (297,429 | ) |
Noncontrolling interests | | 985,823 | | | | (262,200 | ) | | | (1,044,698 | ) | | | (897,736 | ) | | | (1,073,748 | ) |
Redeemable noncontrolling interests | | 8,235 | | | | 1,692 | | | | - | | | | - | | | | - | |
| $ | 1,255,825 | | | $ | (571,231 | ) | | $ | (1,463,688 | ) | | $ | (1,192,149 | ) | | $ | (1,371,177 | ) |
| | | | | | | | | | | | | | | | | | | |
Earnings (Loss) Per Class A Share | | | | | | | | | | | | | | | | | | | |
Basic | $ | 1.68 | | | $ | (2.17 | ) | | $ | (4.07 | ) | | $ | (3.35 | ) | | $ | (3.79 | ) |
Diluted | $ | 1.62 | | | $ | (2.17 | ) | | $ | (4.07 | ) | | $ | (3.35 | ) | | $ | (3.79 | ) |
Weighted-Average Class A Shares Outstanding | | | | | | | | | | | | | | | | | | | |
Basic | | 155,994,389 | | | | 142,970,660 | | | | 102,848,812 | | | | 87,910,977 | | | | 78,387,368 | |
Diluted | | 468,442,690 | | | | 142,970,660 | | | | 102,848,812 | | | | 87,910,977 | | | | 78,387,368 | |
| | | | | | | | | | | | | | | | | | | |
Selected Balance Sheet Data | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents | $ | 189,974 | | | $ | 162,485 | | | $ | 149,011 | | | $ | 117,577 | | | $ | 73,732 | |
Assets of consolidated Och-Ziff funds | | 4,711,189 | | | | 2,850,754 | | | | 772,957 | | | | 441,023 | | | | 300,604 | |
Total assets | | 6,869,274 | | | | 4,597,676 | | | | 2,044,103 | | | | 2,093,924 | | | | 2,206,424 | |
Debt obligations | | 384,177 | | | | 388,043 | | | | 383,685 | | | | 639,487 | | | | 652,414 | |
Liabilities of consolidated Och-Ziff funds | | 3,042,395 | | | | 1,297,096 | | | | 103,103 | | | | 27,587 | | | | 29 | |
Total liabilities | | 4,577,667 | | | | 2,677,495 | | | | 1,385,003 | | | | 1,646,669 | | | | 2,003,932 | |
Redeemable noncontrolling interests | | 76,583 | | | | 8,692 | | | | - | | | | - | | | | - | |
Shareholders' deficit attributable to Class A Shareholders | | (133,721 | ) | | | (248,921 | ) | | | (357,136 | ) | | | (351,555 | ) | | | (374,314 | ) |
Shareholders' equity attributable to noncontrolling interests | | 2,348,745 | | | | 2,160,410 | | | | 1,016,236 | | | | 798,810 | | | | 576,806 | |
Total shareholders' equity | | 2,215,024 | | | | 1,911,489 | | | | 659,100 | | | | 447,255 | | | | 202,492 | |
| | | | | | | | | | | | | | | | | | | |
Economic Income Data | | | | | | | | | | | | | | | | | | | |
Economic Income Revenues— Non-GAAP(1) | $ | 1,630,487 | | | $ | 1,091,467 | | | $ | 553,476 | | | $ | 876,959 | | | $ | 713,116 | |
Economic Income—Non-GAAP(1) | | 1,098,696 | | | | 694,114 | | | | 273,772 | | | | 566,758 | | | | 403,679 | |
| | | | | | | | | | | | | | | | | | | |
Assets Under Management | | | | | | | | | | | | | | | | | | | |
Balance—beginning of period | $ | 32,603,930 | | | $ | 28,766,340 | | | $ | 27,934,696 | | | $ | 23,079,796 | | | $ | 26,954,606 | |
Net flows | | 3,103,511 | | | | 479,587 | | | | 1,116,442 | | | | 2,692,705 | | | | (8,052,634 | ) |
Appreciated (depreciation) | | 4,531,371 | | | | 3,358,003 | | | | (284,798 | ) | | | 2,162,195 | | | | 4,177,824 | |
Balance—End of Period | $ | 40,238,812 | | | $ | 32,603,930 | | | $ | 28,766,340 | | | $ | 27,934,696 | | | $ | 23,079,796 | |
(1) | These items presented are non-GAAP financial measures that supplement, and should not be considered alternatives to, revenues, net income (loss) or cash flow from operations that have been prepared in accordance with GAAP, and are not necessarily indicative of liquidity or the cash available to fund operations. Please see the discussion below for important disclosures about the use of non-GAAP measures. |
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Restatements
Following a periodic review performed by the staff of the U.S. Securities and Exchange Commission (the “Staff”), we determined that we will correct an error related to the consolidation of the CLOs we manage. We launched our first CLO in the third quarter of 2012. Consolidating the CLOs has resulted in material adjustments to our previously issued annual and interim financial statements from the third quarter of 2012 through the third quarter of 2013. The consolidation of these CLOs resulted in an increase in the assets and liabilities of consolidated Och-Ziff funds in the consolidated balance sheets for these periods, as well as an increase in the income, expenses and net gains of consolidated Och-Ziff funds in the consolidated statements of comprehensive income (loss), but did not impact net income (loss) allocated to Class A Shareholders. None of these adjustments had any impact on our Economic Income, as previously reported.
In addition, we corrected an error related to the treatment of previously deferred incentive income allocations from the consolidated Och-Ziff funds that remained subject to clawback, to the extent there are future losses. We determined that such amounts are allocable to us and to noncontrolling interests based on the contractual terms of the relevant fund documents rather than deferring these amounts until clawback contingencies are resolved. To correct the error, for the years ended December 31, 2009 to 2012, we adjusted previously reported amounts from change in deferred income of consolidated Och-Ziff funds in the statements of comprehensive income (loss) to consolidated net income (loss) allocated to noncontrolling interests and consolidated net income (loss) allocated to Class A Shareholders. These adjustments also resulted in a change to the previously reported earnings per share information for the year ended December 31, 2012. We also adjusted the previously reported related deferred income of consolidated Och-Ziff funds liability from other liabilities in the consolidated balance sheets to shareholders’ equity attributable to noncontrolling interests and shareholders’ deficit attributable to Class A Shareholders. None of these adjustments had any impact on our Economic Income, as previously reported.
Please see “Supplemental Financial Information” following our consolidated financial statements for our restated quarterly information.
Reclassifications
We consolidate a credit hedge fund that allows fund investors to redeem their interests upon the expiration of a lockup period. These interests were deemed immaterial for separate presentation as redeemable noncontrolling interests in 2012, and therefore were included within noncontrolling interests in the consolidated balance sheets and statements of comprehensive income (loss). Due to growth in this consolidated fund in 2013, we started to report these interests separately in the consolidated balance sheets and statements of comprehensive income (loss). As a result, we have reclassified the 2012 amounts to conform to the current period presentation. None of these adjustments had any impact on our Economic Income, as previously reported.
Non-GAAP Financial Measures
In addition to analyzing our results on a GAAP basis, management also reviews our results on an “Economic Income” basis. Economic Income excludes the adjustments described below that are required for presentation of our results on a GAAP basis, but that management does not consider when evaluating our operating performance in any given period. Management, therefore, uses Economic Income as the basis on which it evaluates our financial performance and makes resource allocation and other operating decisions. Management considers it important that investors review the same operating information that it uses.
Economic Income is a measure of pre-tax operating performance that excludes the following from our results on a GAAP basis:
• | Income allocations to our executive managing directors and the Ziffs on their direct interests in the Och-Ziff Operating Group. Management reviews operating performance at the Och-Ziff Operating Group level, where substantially all of our operations are performed, prior to making any income allocations. |
• | Reorganization expenses related to the 2007 Offerings, equity-based compensation expenses and depreciation and amortization expenses, as management does not consider these non-cash expenses to be reflective of operating performance. However, the fair value of RSUs that are settled in cash to employees or executive managing directors is included as an expense at the time of settlement. |
• | Changes in the tax receivable agreement liability, net gains on early retirement of debt and net gains (losses) on investments in Och-Ziff funds, as management does not consider these items to be reflective of operating performance. |
• | Allocation of deferred balances and related taxes and net earnings on deferred balances, as these amounts relate to amounts due to our executive managing directors and the Ziffs for incentive income that was deferred prior to the 2007 Offerings and subsequently paid out through 2011. |
• | Amounts related to the consolidated Och-Ziff funds, including the related eliminations of management fees and incentive income, as management reviews the total amount of management fees and incentive income earned in relation to total assets under management and fund performance. We also defer the recognition of incentive income allocations from the consolidated Och-Ziff funds until all clawback contingencies are resolved, consistent with the revenue recognition policy for the funds we do not consolidate. |
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In addition, expenses related to compensation and profit-sharing arrangements based on fund investment performance are recognized at the end of the relevant performance measurement period, as management reviews the total compensation expense related to these arrangements in relation to any incentive income earned by the respective fund.
As a result of the adjustments described above, as well as an adjustment to present management fees net of recurring placement and related service fees (rather than considering these fees an expense), management fees, incentive income, compensation and benefits, non-compensation expenses and net income (loss) allocated to noncontrolling interests as presented on an Economic Income basis are also non-GAAP measures.
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Item 7. | Management’s Discussion and Analysis of Financial Condition and Results of Operations |
This discussion contains forward-looking statements and involves numerous risks and uncertainties, including, but not limited to, those described in “Part I—Item 1A. Risk Factors” of this annual report. Actual results may differ materially from those contained in any forward-looking statements. This MD&A should be read in conjunction with the consolidated financial statements and related notes included elsewhere in this annual report. An investment in our Class A Shares is not an investment in any of our funds.
Overview
Restatements and Reclassifications
As discussed in “Item 6. Selected Financial Data,” certain prior period amounts have been restated or reclassified throughout this annual report. These restatements and reclassifications relate to the consolidation of the CLOs we manage, the treatment of incentive income allocations from the consolidated Och-Ziff funds that are subject to clawback, and the presentation of redeemable noncontrolling interests. These restatements and reclassifications had no impact on our Economic Income, as previously reported and presented throughout this discussion and analysis. For additional information, please see “Item 6. Selected Financial Data.”
Overview of Our 2013 Results
As of December 31, 2013, our assets under management were $40.2 billion, 23% higher than $32.6 billion as of December 31, 2012. The $7.6 billion year-over-year increase was driven by performance-related appreciation of $4.5 billion and capital net inflows of $3.1 billion, which included approximately $1.6 billion of CLOs we closed in 2013. The growth in our assets under management during 2013 was reflective of both our investment performance and increasing capital net inflows. Our business is evolving as we continue to become a solutions provider that can offer a diverse range of products to institutional investors. We believe that this has enabled us to attract a greater share of the capital allocated globally to alternative asset managers.
Year-to-date, private banks and pension funds were the largest sources of our capital net inflows. In addition to these areas, we also saw increased interest from investors internationally. Investor interest remains very high across all our products, and we anticipate that this will continue in 2014. In addition to attracting new capital from our existing investor base, we made progress in establishing relationships with new investors during 2013.
We are expanding and diversifying our product offerings by growing the assets under management in our dedicated credit, real estate and long/short equity platforms. These products complement our multi-strategy funds and, as such, we believe are attractive investment alternatives to our current and prospective fund investors.
For 2013, we reported GAAP net income allocated to Class A Shareholders of $261.8 million, compared to a net loss of $310.7 million for 2012. The improvement in our GAAP results was driven by a decrease in Reorganization expenses related to the amortization of Och-Ziff Operating Group A Units issued in connection with the IPO. Substantially all of these units were fully vested as of November 2012. Also contributing to the improvement in our GAAP results was an increase in incentive income and management fees. These increases were partially offset by increases in compensation and benefits, and general, administrative and other expenses.
We reported Economic Income for the Company of $1.1 billion for 2013, compared to $694.1 million for 2012. The year-over-year increase was principally driven by higher incentive income and management fees, partially offset by increases in compensation and benefits and non-compensation expenses. Economic Income for the Company is a non-GAAP measure. For additional information regarding non-GAAP measures, as well as for a discussion of the drivers of the year-over-year changes in Economic Income, please see “—Economic Income Analysis.”
Overview of 2013 Fund Performance
During 2013, the OZ Master Fund generated a net return of 13.9%, the OZ Europe Master Fund generated a net return of 12.4% and the OZ Asia Master Fund generated a net return of 13.5%. These returns were generated with approximately 37% of the volatility of the S&P 500 Index on a weighted-average basis. During 2013, we generated strong investment performance in all our product areas. We achieved this through our investing expertise across strategies and geographies, and by maintaining the flexibility to adjust our portfolio allocations as market conditions changed. Our investment performance track record remains important to the decision by fund investors to place capital with us in both our multi-strategy funds, and in our newer product offerings, such as our dedicated credit and long/short equity platforms.
We were active in all of our strategies at varying points during 2013, with the most significant contributors to our investment performance being our long/short equity special situations and credit-related strategies. We were fully invested in the OZ Master Fund as of the end of the 2013 fourth quarter, and although we remain cautious as macroeconomic and political uncertainties persist at the beginning of 2014, we believe the current environment will play to the strengths of our multi-product investment approach. For important information about our fund performance data, please see “—Assets Under Management and Fund Performance Information.”
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Financial Market and Capital Flow Environment
Our ability to generate management fees and incentive income is impacted by the financial markets, which influences our ability to generate returns for our fund investors, and by the amount of capital flowing into and out of the hedge fund industry, which impacts our ability to retain existing investor capital and the amount of new assets we attract.
Financial Market Environment
Our ability to successfully generate consistent, positive, absolute returns is dependent on our ability to execute each fund’s investment strategy or strategies. Each strategy may be materially affected by conditions in the financial markets, and by global economic and business conditions.
During 2013, most global equity markets rallied sharply. Equity markets began the year on a strong note with many of the leading equity indices rising to near-term highs during the 2013 first quarter. Throughout the year, investors remained focused on the U.S. Federal Reserve’s accommodative monetary policy and the potential impact of a decision to taper. Volatility increased during the second and third quarters due to these ongoing tapering concerns, along with periods of political uncertainty in the U.S., Europe and the Middle East.
U.S. equity markets performed well during the 2013 fourth quarter due to strong corporate earnings and improving economic data. After months of speculation, equity markets reacted favorably to the U.S. Federal Reserve’s decision to begin modestly tapering its asset purchase program, helping U.S. equity markets rally to record highs. At the same time, the U.S. Treasury yield rose above 3% in December, marking its largest calendar increase since 2009.
In Europe, despite efforts by the European Central Bank to spur economic growth by cutting its benchmark interest rate to a record low, regional performance was mixed during the 2013 fourth quarter. European markets continued to experience increased volatility given weak economic data in southern Europe and a strengthening Euro.
Performance in the Asian markets varied across the region during the 2013 fourth quarter. In Japan, while the NIKKEI declined at the beginning of the quarter due to disappointing earnings data, better than expected third quarter gross domestic product and a weakening yen contributed to an increase in the Japanese equity markets. In contrast, weaker Chinese economic data and the ongoing liquidity crunch weighed on markets there at the end of the quarter.
Capital Flow Environment
During 2013, hedge fund industry assets under management grew by approximately $376 billion, or 17%, to $2.6 trillion. Year-to-date performance-related appreciation was approximately $312 billion, 49% higher than 2012, due to improved investment performance in the industry. Capital net inflows were approximately $64 billion, an 85% increase over those in 2012, and were at the second highest level in the last five years. We believe that the demand for alternative asset managers will continue to increase as institutional investors remain focused on risk mitigation and downside capital protection in their equity portfolios, and yield enhancement in their fixed income portfolios.
Assets Under Management and Fund Performance
Our financial results are primarily driven by the combination of our assets under management and the investment performance of our funds. Both of these factors directly affect the revenues we earn from management fees and incentive income. Growth in assets under management due to capital placed with us by investors in our funds and positive investment performance of our funds drive growth in our revenues and earnings. Conversely, poor investment performance slows our growth by decreasing our assets under management and increasing the potential for redemptions from our funds, which would have a negative effect on our revenues and earnings.
We typically accept capital from new and existing investors in our funds on a monthly basis on the first day of each month. Investors in our funds (other than investors in our real estate funds, certain credit funds, CLOs and certain other alternative investment vehicles we manage and other than with respect to capital invested in Special Investments) typically have the right to redeem their interests in a fund following an initial lock-up period of one to three years. Following the expiration of these lock-up periods, subject to certain limitations, investors may redeem capital generally on a quarterly or annual basis upon giving 30 to 90 days’ prior written notice. However, upon the payment of a redemption fee to the applicable fund and upon giving 30 days’ prior written notice, certain investors may redeem capital during the lock-up period. The lock-up requirements for our funds may generally be waived or modified at the sole discretion of each fund’s general partner or board of directors, as applicable.
With respect to investors with quarterly redemption rights, requests for redemptions submitted during a quarter generally are paid on the first day of the following quarter. Accordingly, quarterly redemptions generally will have no impact on management fees during the quarter in which they are submitted. Instead, these redemptions will decrease assets under management as of the first day of the following quarter, which reduces management fees for that quarter. With respect to investors with annual redemption rights, redemptions paid prior
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to the end of a quarter impact assets under management in the quarter in which they are paid, and therefore impact management fees for that quarter.
Information with respect to our assets under management throughout this report, including the tables set forth in this discussion and analysis, includes investments by us, our executive managing directors, employees and certain other related parties. Prior to our IPO, we did not charge management fees or earn incentive income on these investments. Following our IPO, we began charging management fees and earning incentive income on new investments made in our funds by our executive managing directors and certain other related parties, including the reinvestment by our executive managing directors of their after-tax proceeds from the 2007 Offerings. As of December 31, 2013, approximately 7% of our assets under management represented investments by us, our executive managing directors, employees and certain other related parties in our funds. As of that date, approximately 39% of these affiliated assets under management are not charged management fees and are not subject to an incentive income calculation. Additionally, to the extent that an Och-Ziff fund is an investor in another Och-Ziff fund, we waive or rebate a corresponding portion of the management fees charged to the fund.
As further discussed below in “—Understanding Our Results—Revenues,” we generally calculate management fees based on assets under management as of the beginning of each quarter. The assets under management in the tables below are presented net of management fees and incentive income and are as of the end of the period. Accordingly, the assets under management presented in the tables below are not the amounts used to calculate management fees for the respective periods.
Summary of Changes in Assets Under Management
The table below presents the changes to our assets under management and our weighted-average assets under management for the respective periods. Weighted-average assets under management exclude the impact of fourth quarter investment performance for the periods presented, as these amounts do not impact management fees calculated for that period.
| Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | |
Balance-beginning of period | $ | 32,603,930 | | | $ | 28,766,340 | | | $ | 27,934,696 | |
Net flows | | 3,103,511 | | | | 479,587 | | | | 1,116,442 | |
Appreciation (depreciation) | | 4,531,371 | | | | 3,358,003 | | | | (284,798 | ) |
Balance-end of period | $ | 40,238,812 | | | $ | 32,603,930 | | | $ | 28,766,340 | |
| | | | | | | | | | | |
Weighted-average assets under management | $ | 35,705,635 | | | $ | 29,992,653 | | | $ | 28,932,010 | |
In 2013, our funds experienced performance-related appreciation of $4.5 billion and capital net inflows of $3.1 billion, which were comprised of $7.8 billion of gross inflows and $4.7 billion of gross outflows. Our gross inflows also included $1.6 billion related to our CLOs. Direct allocations from pension funds and private banks continued to be the largest drivers of our inflows (excluding CLOs), while redemptions from fund-of-funds were the largest driver of our outflows during 2013.
In 2012, our funds experienced performance-related appreciation of $3.4 billion and capital net inflows of $479.6 million, which were comprised of $3.9 billion of gross inflows and $3.5 billion of gross outflows. Direct allocations from pension funds continued to be the largest driver of our inflows (excluding CLOs), while redemptions from fund-of-funds were the largest driver of our outflows. Our gross inflows also included $985.9 million related to the launch of our first two CLOs in the second half of the year. We continued to see strong interest from new investors and existing fund investors who seek to expand their relationships with us. As a result, our credit-focused platforms experienced rapid growth in 2012.
In 2011, our funds experienced capital net inflows of $1.1 billion, which were comprised of $4.4 billion of gross inflows and $3.3 billion of gross outflows, and performance-related depreciation of $284.8 million. The inflows came from a diversified combination of new and existing investors globally. Our real estate funds, credit platforms and certain other funds that we manage with longer than one-year performance measurement periods comprised a meaningful portion of gross inflows in 2011. We believe that volatile market conditions worldwide in 2011, and the resultant deterioration in investor confidence, impacted the pace of new capital commitments to the hedge fund industry and Och-Ziff during the year. The outflows were driven by a variety of factors influencing our fund investors and remained at higher levels than we experienced prior to the 2008 financial crisis.
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Assets Under Management and Fund Performance Information
| December 31, | |
| 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | |
Multi-strategy funds | | | | | | | | | | | |
OZ Master Fund | $ | 25,210,607 | | | $ | 21,779,917 | | | $ | 20,197,522 | |
OZ Europe Master Fund | | 1,437,271 | | | | 1,960,883 | | | | 2,271,540 | |
OZ Asia Master Fund | | 1,341,550 | | | | 1,393,496 | | | | 1,619,742 | |
Other multi-strategy funds | | 3,779,150 | | | | 2,712,618 | | | | 2,294,885 | |
Credit funds | | 4,377,464 | | | | 2,391,635 | | | | 1,110,937 | |
CLOs | | 2,605,628 | | | | 985,934 | | | | - | |
Real estate funds | | 840,383 | | | | 891,819 | | | | 910,304 | |
Other | | 646,759 | | | | 487,628 | | | | 361,410 | |
Total | $ | 40,238,812 | | | $ | 32,603,930 | | | $ | 28,766,340 | |
The table above presents the composition of our assets under management based on the strategy or asset class in which they are invested. Presentation of the assets under management and performance for individual funds is shown for those funds that we consider material to understanding our business and results of operations for the periods presented. All of our funds are managed by the Och-Ziff Funds segment with the exception of our domestic real estate funds, which are managed by the real estate management business included in Other Operations.
The performance information reflected in this discussion and analysis is not indicative of the performance of our Class A Shares and is not necessarily indicative of the future results of any particular fund. An investment in our Class A Shares is not an investment in any of our funds. There can be no assurance that any of our existing or future funds will achieve similar results.
The net returns presented in this discussion represent the composite performance of all feeder funds that comprise each of the master funds presented. The net return is calculated using the total return of all feeder funds, net of all fees and expenses of such feeder funds and master funds (except incentive income on unrealized gains attributable to Special Investments that could reduce returns in these investments at the time of realization) and the returns of each feeder fund include the reinvestment of all dividends and other income. The net returns also include realized and unrealized gains and losses attributable to Special Investments and initial public offering investments that are not allocated to all investors in the feeder funds. Investors that were not allocated Special Investments and initial public offering investments may experience materially different returns.
Multi-Strategy Funds
We currently manage three main investment funds on a multi-strategy basis, across multiple geographies, as well as various other smaller multi-strategy funds. Management fees for these funds generally range from 1.5% to 2.5% of assets under management based on the net asset value of these funds. Incentive income for these funds is generally 20% of realized and unrealized profits, and a portion of these assets is subject to hurdle rates. See “—Understanding Our Results—Incentive Income” for additional information.
OZ Master Fund
| Assets Under Management as of December 31, | | | Net Returns for the Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | | | 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | | | | | | | | |
OZ Master Fund | $ | 25,210,607 | | | $ | 21,779,917 | | | $ | 20,197,522 | | | | 13.9 | % | | | | 11.6 | % | | | | -0.5 | % | |
In 2013, the $3.4 billion year-over-year increase in assets under management was driven by performance-related appreciation in each quarter and capital net inflows in the second through fourth quarters, partially offset by capital net outflows in the first quarter. In 2013, convertible and derivative arbitrage contributed approximately 1% of the fund’s return before management fees and incentive income; corporate credit contributed approximately 12%; long/short equity special situations contributed approximately 57%; merger arbitrage contributed approximately 6%; structured credit contributed approximately 26%; and other items contributed approximately -2%.
In 2012, the $1.6 billion year-over-year increase in assets under management was driven by performance-related appreciation in each quarter, partially offset by capital net outflows in each quarter. In 2012, convertible and derivative arbitrage contributed approximately 6% of the fund’s return before management fees and incentive income; corporate credit contributed approximately 18%; long/short equity
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special situations contributed approximately 30%; merger arbitrage contributed approximately 2%; private investments contributed approximately 1%; structured credit contributed approximately 44%; and other items contributed approximately -1%.
In 2011, convertible and derivative arbitrage contributed approximately 26% of the fund’s return before management fees and incentive income; corporate credit contributed approximately 17%; long/short equity special situations contributed approximately -17%; merger arbitrage contributed approximately 11%; private investments contributed approximately -16%; structured credit contributed approximately 91%; and other items contributed approximately -12%.
As a result of the overall performance of the OZ Master Fund, we earned approximately 66%, 81% and 69% of our incentive income before eliminations from investors in this fund in 2013, 2012 and 2011, respectively.
OZ Europe Master Fund
| Assets Under Management as of December 31, | | | Net Returns for the Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | | | 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | | | | | | | | |
OZ Europe Master Fund | $ | 1,437,271 | | | $ | 1,960,883 | | | $ | 2,271,540 | | | | 12.4 | % | | | | 8.6 | % | | | | -4.9 | % | |
In 2013, the $523.6 million year-over-year decrease in assets under management was driven by capital net outflows in each quarter, partially offset by performance-related appreciation in each quarter. In 2013, corporate credit contributed approximately 22% of the fund’s return before management fees and incentive income; long/short equity special situations contributed approximately 57%; merger arbitrage contributed approximately 3%; private investments contributed approximately -20%; structured credit contributed approximately 37%; and other items contributed approximately 1%.
In 2012, the $310.7 million year-over-year decrease in assets under management was driven by capital net outflows in each quarter and performance-related depreciation in the second quarter, partially offset by performance-related appreciation in the first quarter and second half of the year. In 2012, convertible and derivative arbitrage contributed approximately 3% of the fund’s return before management fees and incentive income; corporate credit contributed approximately 30%; long/short equity special situations contributed approximately 32%; merger arbitrage contributed approximately 4%; private investments contributed approximately -22%; structured credit contributed approximately 49%; and other items contributed approximately 4%.
In 2011, convertible and derivative arbitrage contributed approximately -30% of the fund’s return before management fees and incentive income; corporate credit contributed approximately -10%; long/short equity special situations contributed approximately 88%; merger arbitrage contributed approximately -18%; private investments contributed approximately 77%; structured credit contributed approximately -32%; and other items contributed approximately 25%.
As a result of the overall performance of the OZ Europe Master Fund, we earned approximately 5%, 7% and 19% of our incentive income from investors in this fund in 2013, 2012 and 2011, respectively.
OZ Asia Master Fund
| Assets Under Management as of December 31, | | | Net Returns for the Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | | | 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | | | | | | | | |
OZ Asia Master Fund | $ | 1,341,550 | | | $ | 1,393,496 | | | $ | 1,619,742 | | | | 13.5 | % | | | | 7.0 | % | | | | -3.8 | % | |
In 2013, the $51.9 million year-over-year decrease in assets under management was due to capital net outflows in the first and second quarters, partially offset by capital net inflows in the third and fourth quarters and performance-related appreciation in each quarter. In 2013, convertible and derivative arbitrage contributed approximately 5% of the fund’s return before management fees and incentive income; corporate credit contributed approximately 6%; long/short equity special situations contributed approximately 104%; merger arbitrage contributed approximately 1%; private investments contributed approximately -11%; and other items contributed approximately -5%.
In 2012, the $226.2 million year-over-year decrease in assets under management was due to capital net outflows in each quarter and performance-related depreciation in the second quarter, partially offset by performance-related appreciation in the first quarter and second half of the year. In 2012, convertible and derivative arbitrage contributed approximately 9% of the fund’s return before management fees and incentive income; corporate credit contributed approximately 23%; long/short equity special situations contributed approximately 69%; private investments contributed approximately 8%; and other items contributed approximately -9%.
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In 2011, convertible and derivative arbitrage contributed approximately -36% of the fund’s return before management fees and incentive income; corporate credit contributed approximately -74%; long/short equity special situations contributed approximately 181%; merger arbitrage contributed approximately -16%; private investments contributed approximately -30%; and other items contributed approximately 75%.
As a result of the overall performance of the OZ Asia Master Fund, we earned approximately 4%, 1% and 1% of our incentive income from investors in this fund in 2013, 2012 and 2011, respectively.
Other Multi-Strategy Funds
The remaining assets under management in our multi-strategy funds generally invest in strategies similar to the OZ Master Fund; however, investment performance for these funds may vary materially from the returns of the OZ Master Fund.
In 2013, the $1.1 billion year-over-year increase in assets under management was driven by performance-related appreciation in each quarter and capital net inflows in the first through third quarters, partially offset by capital net outflows in the fourth quarter.
In 2012, the $340.9 million year-over-year increase in assets under management was driven by both capital net inflows and positive investment performance in the first quarter and second half of the year, partially offset by capital net outflows and performance-related depreciation in the second quarter.
Credit Funds
We manage various credit funds that generally make investments in structured and corporate credit assets, primarily in the United States and Europe. Management fees for these funds generally range from 0.75% to 1.5% of assets under management based on either the net asset value of these funds or on the amount of capital committed to these platforms by our fund investors. Incentive income related to the majority of these assets is equal to 20% of realized profits, subject to hurdle rates. For funds we do not consolidate, incentive income is recognized at or near the end of the life of the fund when it is no longer subject to clawback. See “—Understanding Our Results—Incentive Income” for additional information, including the recognition of incentive income for funds we consolidate.
In 2013, the $2.0 billion year-over-year increase in assets under management was driven by continued growth in our various credit funds, including the restructuring and expansion of a relationship with an existing investor that resulted in the recognition of $69.6 million of incentive income during the first quarter of 2013.
In 2012, the $1.3 billion year-over-year increase in assets under management was also driven by growth in our various credit funds.
CLOs
Management fees for the CLOs are generally 0.50% based on the par value of the collateral and cash held in the CLOs. Incentive income from our CLOs is equal to 20% of the excess cash flows due to the holders of the subordinated notes issued by the CLOs, subject to a stated hurdle rate. We consolidate our CLOs, and therefore the management fees and incentive income from these entities is eliminated in consolidation. See “—Understanding Our Results—Incentive Income” for additional information.
In 2013, the $1.6 billion year-over-year increase in assets under management was driven by three additional CLOs we closed in 2013. We launched our first CLO in 2012.
Real Estate Funds
Our real estate funds generally make investments in commercial and residential real estate in North America, including real property, multi-property portfolios, real estate-related joint ventures, real estate operating companies and other real estate-related assets. Management fees for our real estate funds range from 0.75% to 1.5% of assets under management based on the amount of capital committed to these platforms by our fund investors. Incentive income related to these funds is equal to 20% of the realized profits, subject to hurdle rates. We consolidate our real estate funds, and therefore incentive income from these entities is eliminated in consolidation. Management fees from the real estate funds are paid to us directly by the fund investors in those funds, and therefore those amounts are not eliminated in consolidation. See “—Understanding Our Results—Incentive Income” for additional information, including the recognition of incentive income for funds we consolidate.
The $51.4 million year-over-year decrease in assets under management in 2013 and the $18.5 million year-over-year decrease in assets under management in 2012 were, in each case, driven by the wind-down of our first domestic real estate fund, partially offset by increases related to our second domestic real estate fund.
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Other
Our other assets under management are comprised of funds that are generally strategy-specific. Management fees for these funds range from 1.00% to 1.75% of assets under management, generally based on the amount of capital committed to these platforms by our fund investors. Incentive income related to these funds is generally 20% of realized profits and may be subject to hurdle rates. For the majority of these other assets, incentive income is not recognized as revenue until at or near the end of the life of the fund when it is no longer subject to clawback. See “—Understanding Our Results—Incentive Income” for additional information.
The $159.1 million year-over-year increase in assets under management in 2013 and the $126.2 million year-over-year increase in assets under management in 2012 were, in each case, driven primarily by the launch of additional strategy-specific products for our fund investors.
Understanding Our Results
Revenues
Our operations have been financed primarily by cash flows generated by our business. Our principal sources of revenues are management fees and incentive income. For any given period, our revenues are influenced by the amount of our assets under management, the investment performance of our funds and the timing of when we recognize incentive income for certain assets under management as discussed below.
The ability of investors to contribute capital to and redeem capital from our funds causes our assets under management to fluctuate from period to period. Fluctuations in assets under management also result from our funds’ investment performance. Both of these factors directly impact the revenues we earn from management fees and incentive income. For example, a $1 billion increase or decrease in assets under management subject to a 2% management fee would generally increase or decrease annual management fees by $20 million. If net profits attributable to a fee-paying fund investor were $10 million in a given year, we generally would earn incentive income equal to $2 million, assuming a 20% incentive income rate, a one-year performance measurement period, no hurdle rate and no high-water marks from prior years.
For any given quarter, our revenues will be influenced by the combination of assets under management and the investment performance of our funds. For the first three quarters of each year, our revenues will be primarily comprised of the management fees we have earned for each respective quarter. In addition, we may recognize incentive income for assets under management for which the measurement period expired in that quarter, such as assets subject to three-year performance measurement periods, or incentive income related to fund investor redemptions, and these amounts may be significant. In the fourth quarter, our revenues will be primarily comprised of the management fees we have earned for the quarter, as well as incentive income related to the full-year investment performance generated on assets under management that are subject to annual measurement periods, or for other assets under management for which the measurement period expired in that quarter.
Management Fees. Management fees are generally calculated and paid to us on a quarterly basis in advance, based on the amount of assets under management at the beginning of the quarter. Management fees are prorated for capital inflows and redemptions during the quarter. Accordingly, changes in our management fee revenues from quarter to quarter are driven by changes in the quarterly opening balances of assets under management, the relative magnitude and timing of inflows and redemptions during the respective quarter, as well as the impact of differing management fee rates charged on those inflows and redemptions. Our average management fee rate in 2013 was approximately 1.53%. This average rate takes into account the effect of non-fee paying assets under management, as well as our credit funds, CLOs, real estate funds and the other alternative investment vehicles we manage, which generally pay lower management fees than our multi-strategy products, consistent with the market convention for these asset classes.
Incentive Income. We earn incentive income based on the performance of our funds. Incentive income is typically equal to 20% of the net realized and unrealized profits attributable to each fund investor, but it excludes unrealized gains and losses attributable to Special Investments.
For funds that we consolidate, including our real estate funds, certain credit funds and certain other funds, incentive income is recognized by allocating a portion of the net income of the consolidated Och-Ziff funds to us rather than to the fund investors (noncontrolling interests). Incentive income allocated to us is not reflected as incentive income in our consolidated revenues, as these amounts are eliminated in consolidation. The allocation of incentive income to us is based on the contractual terms of the relevant fund agreements. As a result, we may recognize earnings related to our incentive income allocation from the consolidated Och-Ziff funds prior to the end of their respective performance measurement periods, and therefore we may recognize earnings that are subject to clawback to the extent a consolidated fund generates subsequent losses. For Economic Income purposes, we defer recognition of these earnings until they are no longer subject to clawback.
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For funds that we do not consolidate, incentive income is not recognized until the end of the applicable performance measurement period when the amounts are contractually payable, or “crystallized.” Additionally, all of our hedge funds are subject to a perpetual loss carry forward, or perpetual “high-water mark,” meaning we will not be able to earn incentive income with respect to positive investment performance we generate for a fund investor in any year following negative investment performance until that loss is recouped, at which point a fund investor’s investment surpasses the high-water mark. We earn incentive income on any net profits in excess of the high-water mark.
The performance measurement period for most of our assets under management is on a calendar-year basis, and therefore we generally crystallize incentive income annually on December 31. We may also recognize incentive income related to fund investor redemptions at other times during the year. Additionally, we may recognize a material amount of incentive income during the year related to assets subject to three-year performance measurement periods for which the measurement period has expired (including the rollover of a portion of these assets into one-year measurement periods upon the conclusion of the initial three-year measurement period), as well as assets in certain of our credit funds and certain other funds we manage, which typically have measurement periods beyond one year. We may also recognize incentive income for tax distributions related to these assets. Tax distributions are amounts distributed to us to cover tax liabilities related to incentive income that has been accrued at the fund level but will not be recognized by us until the end of the relevant performance measurement period (if at all).
As of December 31, 2013, the performance measurement periods with respect to approximately $10.6 billion, or 26.4%, of our assets under management were longer than one year. These assets under management include assets subject to three-year performance measurement periods in the OZ Master Fund and other multi-strategy funds, as well as assets in our credit funds, CLOs, real estate funds and other alternative investment vehicles we manage. Incentive income related to these assets is based on the cumulative investment performance over a specified measurement period (in the case of CLOs, based on the excess cash flows available to the holders of the subordinated notes), and, to the extent a fund is not consolidated, is not earned until it is no longer subject to repayment to the respective fund. Our ability to earn incentive income on these longer-term assets is also subject to hurdle rates whereby we do not earn any incentive income until the investment returns exceed an agreed upon benchmark. However, for a portion of these assets subject to hurdle rates, once the investment performance has exceeded the hurdle rate, we may receive a preferential “catch-up” allocation, resulting in a potential recognition to us of a full 20% of the net profits attributable to investors in these assets.
Income of Consolidated Och-Ziff Funds. Revenues recorded as income of consolidated Och-Ziff funds consist of interest income, dividend income and other miscellaneous items.
Expenses
Compensation and Benefits. Compensation and benefits is comprised of salaries, benefits, payroll taxes, and discretionary and guaranteed cash bonus expense. On an annual basis, compensation and benefits comprise a significant portion of total expenses, with discretionary cash bonuses generally comprising a significant portion of total compensation and benefits. These cash bonuses are based on total annual revenues, which are significantly influenced by the amount of incentive income we earn in the year. Annual discretionary cash bonuses are generally determined and expensed in the fourth quarter each year.
Compensation and benefits also includes equity-based compensation expense, which is primarily in the form of RSUs and Och-Ziff Operating Group A Units granted to executive managing directors subsequent to the 2007 Offerings. Subsequent to the 2007 Offerings we have issued Och-Ziff Operating Group D Units to certain executive managing directors. Certain executive managing directors may be eligible to receive awards, including cash and Och-Ziff Operating Group D Units under the PIP, which is described further below. We may also issue additional performance-related Och-Ziff Operating Group D Units or make discretionary performance cash payments to our executive managing directors.
The Och-Ziff Operating Group D Units are not considered equity under GAAP and no equity-based compensation expense is recognized related to these units when they are granted. Distributions made to holders of these units are recognized within compensation and benefits in the consolidated statements of comprehensive income (loss), and are done on a pro rata basis with the Och-Ziff Operating Group A Units (held by our executive managing directors and the Ziffs) and the Och-Ziff Operating Group B Units (held by our intermediate holding companies). An Och-Ziff Operating Group D Unit converts into an Och-Ziff Operating Group A Unit to the extent the Company determines that it has become economically equivalent to an Och-Ziff Operating Group A Unit, at which point it is considered a grant of equity-based compensation for GAAP purposes. Upon the conversion of Och-Ziff Operating Group D Units into Och-Ziff Operating Group A Units, we recognize a one-time charge for the grant-date fair value of the vested units and begin to amortize the grant-date fair value of the unvested units over the vesting period. As additional Och-Ziff Operating Group D Units are converted into Och-Ziff Operating Group A Units in the future, we may see increasing non-cash equity-based compensation expense related to these units.
We also have profit-sharing arrangements whereby certain employees or executive managing directors are entitled to a share of incentive income distributed by certain funds. This incentive income is typically paid to us, and a portion paid to the participant, as investments held by these funds are realized. We defer the recognition of any portion of this incentive income to the extent it is subject to
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clawback and relates to a fund that is not consolidated. See “—Incentive Income” above. To the extent that the payments to the employees or executive managing directors are probable and reasonably estimable, we accrue these payments as compensation expense for GAAP purposes, which may occur prior to the recognition of the related incentive income.
In August 2012, we adopted the PIP, under which certain of our executive managing directors at the time of the IPO may be eligible to receive discretionary cash awards and discretionary grants of Och-Ziff Operating Group D Units over a five-year period that commenced in 2013. Each year, an aggregate of up to 2,770,749 Och-Ziff Operating Group D Units may be granted under the PIP to the participating executive managing directors, for an aggregate of up to 13,853,745 over the five-year period if a determination is made each year to award the maximum number of units. Aggregate discretionary cash awards for each year under the PIP will be capped at 10% of our incentive income earned during such year, up to a maximum of $39.6 million. The participating executive managing directors, collectively, may receive a maximum aggregate amount of up to $197.8 million over the five-year period if we earn enough incentive income each year and if a determination is made each year to award the maximum amount. In 2013, we granted 2,770,749 Och-Ziff Operating Group D Units and aggregate cash awards of $39.6 million to the participating executive managing directors under the PIP.
Reorganization Expenses. As part of the Reorganization, interests in the Och-Ziff Operating Group held by our executive managing directors and the Ziffs were reclassified as Och-Ziff Operating Group A Units, resulting in significant non-cash Reorganization expenses. Substantially all of those Och-Ziff Operating Group A Units were expensed on a straight-line basis over a five-year vesting period following the 2007 Offerings, which concluded in November 2012. However, certain units have vesting periods through 2015.
Interest Expense. Amounts included within interest expense relate primarily to indebtedness outstanding under a delayed draw term loan agreement entered into in November 2011 (the “Delayed Draw Term Loan”), which is a LIBOR-based, variable-rate borrowing. The LIBOR interest rate on our Delayed Draw Term Loan resets every one, two, three or six months (at our option), two business days prior to the start of each interest period. Prior to the repayment of the indebtedness outstanding under the term loan entered into in connection with the 2007 Offerings (the “2007 Term Loan”) and our aircraft loan in June 2012, interest expense also included interest on those LIBOR-based, variable-rate borrowings.
General, Administrative and Other. General, administrative and other expenses are related to professional services, occupancy and equipment, recurring placement and related service fees, information processing and communications, business development, insurance, changes in our tax receivable agreement liability and other miscellaneous expenses.
Expenses of Consolidated Och-Ziff Funds. Expenses recorded as expenses of consolidated Och-Ziff funds consist of interest expense and other miscellaneous expenses.
Other Income
Net Gains on Investments in Och-Ziff Funds and Joint Ventures. Net gains on investments in Och-Ziff funds and joint ventures primarily consists of net gains and losses on investments in our funds made by us and net gains and losses on investments in joint ventures established to expand certain of our private investments platforms.
Net Gains on Early Retirement of Debt. Net gains on early retirement of debt consist of the net gains realized upon the early retirement of portions of the amounts outstanding under our 2007 Term Loan that occurred in 2011 in connection with the 2011 Offering.
Net Gains of Consolidated Och-Ziff Funds. Net gains of consolidated Och-Ziff funds consist of net realized and unrealized gains and losses on investments held by the consolidated Och-Ziff funds.
Income Taxes
Income taxes consist of our provision for federal, state and local income taxes in the United States and foreign income taxes, including provisions for deferred income taxes resulting from temporary differences between the tax and GAAP basis. The computation of the provision requires certain estimates and significant judgment, including, but not limited to, the expected taxable income for the year, projections of the proportion of income earned and taxed in foreign jurisdictions, permanent differences between the tax and GAAP basis and the likelihood of being able to fully utilize deferred income tax assets existing as of the end of the period.
The Registrant and the Och-Ziff Operating Group entities are partnerships for U.S. federal income tax purposes. Due to our legal structure, only a portion of the income we earn is subject to corporate-level income taxes in the United States and foreign jurisdictions. The amount of incentive income we earn in a given year, the resultant flow of revenues and expenses through our legal entity structure, the effect that changes in our Class A Share price may have on the ultimate deduction we are able to take related to the vesting of RSUs, and any changes in future enacted income tax rates may have a significant impact on our income tax provision and effective income tax rate.
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Net Income (Loss) Allocated to Noncontrolling Interests
Noncontrolling interests represent ownership interests in our subsidiaries held by parties other than us and are primarily made up of Och-Ziff Operating Group A Units held by our executive managing directors and the Ziffs, and fund investors’ interests in the consolidated Och-Ziff funds. Increases or decreases in net income (loss) allocated to the Och-Ziff Operating Group A Units are driven by the earnings (losses) of the Och-Ziff Operating Group. Increases or decreases in the net income (loss) allocated to fund investors’ interests in consolidated Och-Ziff funds are driven by the earnings (losses) of those funds as allocated under the contractual terms of the relevant fund agreements.
Our interest in the Och-Ziff Operating Group is expected to continue to increase over time as additional Class A Shares are issued upon the exchange of Och-Ziff Operating Group A Units and vesting of RSUs. These increases will be offset upon the conversion of Och-Ziff Operating Group D Units, which are not considered equity for GAAP purposes, into Och-Ziff Operating Group A Units.
Additionally, we consolidate a credit-focused hedge fund that we manage, wherein investors are able to redeem their interests after an initial lock-up period of one to three years. Allocations of profits and losses to these interests are reflected within net income (loss) allocated to redeemable noncontrolling interests in the consolidated statements of comprehensive income (loss).
Results of Operations
As discussed above, amounts presented below for the years ended December 31, 2012 and 2011 have been restated and reclassified. Please see “—Overview—Restatements and Reclassifications.”
Year Ended December 31, 2013 Compared to Year Ended December 31, 2012
Revenues
| Year Ended December 31, | | | Change | |
| 2013 | | | 2012 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Management fees | $ | 556,427 | | | $ | 504,395 | | | $ | 52,032 | | | | 10 | % |
Incentive income | | 1,076,547 | | | | 595,727 | | | | 480,820 | | | | 81 | % |
Other revenues | | 2,150 | | | | 1,038 | | | | 1,112 | | | | 107 | % |
Income of consolidated Och-Ziff funds | | 260,799 | | | | 125,442 | | | | 135,357 | | | | 108 | % |
Total Revenues | $ | 1,895,923 | | | $ | 1,226,602 | | | $ | 669,321 | | | | 55 | % |
Total revenues increased by $669.3 million primarily due to the following:
• | A $480.8 million increase in incentive income, driven by the improved investment performance in our funds. Our investment performance in 2013 was driven primarily by our credit-related strategies and long/short equity special situations. Also contributing to the increase was the crystallization of $69.6 million of incentive income during the 2013 first quarter on certain of our credit assets due to the restructuring of the terms and the expansion of a relationship with an existing investor. Additionally, the crystallization of $80.3 million of incentive income on a portion of our multi-strategy assets under management for which the three-year performance measurement period expired during 2013 contributed to the increase. |
• | A $52.0 million increase in management fees primarily due to the year-over-year growth in assets under management, which was driven by a combination of performance-related appreciation and capital net inflows. See “—Economic Income Analysis” for information regarding our average management fee rate. |
• | A $135.4 million increase in income of consolidated Och-Ziff funds. Substantially all of this income is allocated to noncontrolling interests, as we only have a minimal ownership interest, if any, in each of these funds. We may, however, be allocated a portion of these earnings through our incentive income allocation as general partner of these funds. |
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Expenses
| Year Ended December 31, | | | Change | |
| 2013 | | | 2012 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Compensation and benefits | $ | 554,069 | | | $ | 389,153 | | | $ | 164,916 | | | | 42 | % |
Reorganization expenses | | 16,087 | | | | 1,396,882 | | | | (1,380,795 | ) | | | -99 | % |
Interest expense | | 7,011 | | | | 6,062 | | | | 949 | | | | 16 | % |
General, administrative and other | | 149,874 | | | | 116,873 | | | | 33,001 | | | | 28 | % |
Expenses of consolidated Och-Ziff funds | | 99,838 | | | | 18,986 | | | | 80,852 | | | | 426 | % |
Total Expenses | $ | 826,879 | | | $ | 1,927,956 | | | $ | (1,101,077 | ) | | | -57 | % |
Total expenses decreased by $1.1 billion primarily due to the following:
• | A $1.4 billion decrease in Reorganization expenses, as substantially all of the Och-Ziff Operating Group A Units granted in connection with the Reorganization were expensed on a straight-line basis over a five-year vesting period following the 2007 Offerings, which concluded in November 2012. |
• | A $164.9 million offsetting increase in compensation and benefits primarily due to the following: (i) a $95.4 million increase in bonus expense due to higher incentive income resulting from improved investment performance, including $39.6 million received in 2013 by eligible executive managing directors under the PIP; (ii) a $47.8 million increase in equity-based compensation driven by the amortization of Och-Ziff Operating Group A Units and RSUs granted to our executive managing directors subsequent to the end of 2012; (iii) an $11.0 million increase in salaries and benefits due in part to an increase in our worldwide headcount from 468 as of December 31, 2012, to 546 as of December 31, 2013; and (iv) a $10.7 million increase in amounts allocated to the Och-Ziff Operating Group D Units primarily due an increase in the number of Och-Ziff Operating Group D Units outstanding, as well as due to higher incentive income. |
• | An $80.9 million offsetting increase in expenses of consolidated Och-Ziff funds. Substantially all of these expenses are allocated to noncontrolling interests, as we only have a minimal ownership interest, if any, in each of these funds. These expenses, however, may reduce the amount of earnings from the consolidated funds allocated to us through our incentive income allocation as general partner of these funds. |
• | A $33.0 million offsetting increase in general, administrative and other expenses, primarily due to the following: (i) a $13.5 million increase in professional services fees related to business operations, infrastructure and expenses associated with regulation and compliance; (ii) a $7.9 million increase in recurring placement and related service fees on assets under management; and (iii) a $4.9 million increase in expense related to the change in tax receivable agreement liability. |
Other Income
| Year Ended December 31, | | | Change | |
| 2013 | | | 2012 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Net gains on investments in Och-Ziff funds and joint ventures | $ | 1,966 | | | $ | 274 | | | $ | 1,692 | | | | 618 | % |
Net gains of consolidated Och-Ziff funds | | 280,502 | | | | 212,710 | | | | 67,792 | | | | 32 | % |
Total Other Income | $ | 282,468 | | | $ | 212,984 | | | $ | 69,484 | | | | 33 | % |
Total other income increased by $69.5 million primarily due to a $67.8 million increase in net gains of consolidated Och-Ziff funds. Substantially all of these net gains are allocated to noncontrolling interests, as we only have a minimal ownership interest, if any, in each of these funds. We may, however, be allocated a portion of these earnings through our incentive income allocation as general partner of these funds.
Income Taxes
| Year Ended December 31, | | | Change | |
| 2013 | | | 2012 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Income taxes | $ | 95,687 | | | $ | 82,861 | | | $ | 12,826 | | | | 15 | % |
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Income tax expense increased by $12.8 million from 2012, primarily due to a $35.6 million increase related to higher profitability. These increases were partially offset by a $13.5 million decrease related to the finalization of our 2012 income tax returns and a $10.2 million decrease in state and local taxes primarily due to income apportionment factors at the state and local level. See Note 12 to our consolidated financial statements included in this annual report for information regarding the items affecting our effective income tax rate.
As of and for the years ended December 31, 2013 and 2012, we were not required to establish a liability for uncertain tax positions.
Net Income (Loss) Allocated to Noncontrolling Interests
The following table presents the components of the net income (loss) allocated to noncontrolling interests and to redeemable noncontrolling interests:
| Year Ended December 31, | | | Change | |
| 2013 | | | 2012 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Och-Ziff Operating Group A Units | $ | 616,843 | | | $ | (538,055 | ) | | $ | 1,154,898 | | | | -215 | % |
Consolidated Och-Ziff funds | | 364,859 | | | | 266,341 | | | | 98,518 | | | | 37 | % |
Other | | 4,121 | | | | 9,514 | | | | (5,393 | ) | | | -57 | % |
Total | $ | 985,823 | | | $ | (262,200 | ) | | $ | 1,248,023 | | | | -476 | % |
| | | | | | | | | | | | | | | |
Redeemable noncontrolling interests | $ | 8,235 | | | $ | 1,692 | | | $ | 6,543 | | | | 387 | % |
Net income (loss) allocated to noncontrolling interests increased $1.2 billion primarily due to the following:
• | A $1.2 billion improvement in the net income allocated to the Och-Ziff Operating Group A Units driven primarily by the decrease in Reorganization expenses and the increase in incentive income discussed above. Our executive managing directors’ and the Ziffs’ interests in the Och-Ziff Operating Group in the form of Och-Ziff Operating Group A Units decreased from 67.0% as of December 31, 2012 to 64.1% as of December 31, 2013. The Och-Ziff Operating Group A Units are expected to continue to significantly reduce our net income in future periods as income of the Och-Ziff Operating Group is allocated to these interests. |
• | A $98.5 million increase in the net income allocated to the consolidated Och-Ziff funds driven primarily by the increase in income and net gains of consolidated Och-Ziff funds discussed above. |
Net Income (Loss) Allocated to Class A Shareholders
| Year Ended December 31, | | | Change | |
| 2013 | | | 2012 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Net income (loss) allocated to Class A Shareholders | $ | 261,767 | | | $ | (310,723 | ) | | $ | 572,490 | | | | -184 | % |
The improvement in our GAAP results was primarily due to a combination of higher incentive income and lower Reorganization expenses as discussed above.
Year Ended December 31, 2012 Compared to Year Ended December 31, 2011
Revenues
| Year Ended December 31, | | | Change | |
| 2012 (Restated) | | | 2011 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Management fees | $ | 504,395 | | | $ | 500,857 | | | $ | 3,538 | | | | 1 | % |
Incentive income | | 595,727 | | | | 65,026 | | | | 530,701 | | | NM | |
Other revenues | | 1,038 | | | | 2,258 | | | | (1,220 | ) | | | -54 | % |
Income of consolidated Och-Ziff funds | | 125,442 | | | | 48,283 | | | | 77,159 | | | | 160 | % |
Total Revenues | $ | 1,226,602 | | | $ | 616,424 | | | $ | 610,178 | | | | 99 | % |
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Total revenues increased by $610.2 million primarily due to the following:
• | A $530.7 million increase in incentive income, driven by an approximately $574.3 million increase due to improved investment performance in our funds, partially offset by a $43.6 million decrease due to the high-water marks in our funds going into 2012. As a result of the losses experienced by our funds in 2011, we were not able to earn incentive income in 2012 until those losses were recovered. Our investment performance in 2012 was driven primarily by our credit-related strategies and long/short equity special situations. |
• | A $77.2 million increase in income of consolidated Och-Ziff funds. Substantially all of this income is allocated to noncontrolling interests, as we only have a minimal ownership interest, if any, in each of these funds. We may, however, be allocated a portion of these earnings through our incentive income allocation as general partner of these funds. |
Our average management fee rate, before the impact of eliminations, decreased to 1.63% in 2012 from 1.68% in 2011 primarily due to growth in our dedicated credit platforms and other longer-term assets under management, as well as the launch of our first two CLOs in 2012. These products generally have lower management fee rates than our traditional hedge fund products, consistent with market convention for these products.
Expenses
| Year Ended December 31, | | | Change | |
| 2012 (Restated) | | | 2011 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Compensation and benefits | $ | 389,153 | | | $ | 325,008 | | | $ | 64,145 | | | | 20 | % |
Reorganization expenses | | 1,396,882 | | | | 1,614,363 | | | | (217,481 | ) | | | -13 | % |
Interest expense | | 6,062 | | | | 7,102 | | | | (1,040 | ) | | | -15 | % |
General, administrative and other | | 116,873 | | | | 85,117 | | | | 31,756 | | | | 37 | % |
Expenses of consolidated Och-Ziff funds | | 18,986 | | | | 8,723 | | | | 10,263 | | | | 118 | % |
Total Expenses | $ | 1,927,956 | | | $ | 2,040,313 | | | $ | (112,357 | ) | | | -6 | % |
Total expenses decreased by $112.4 million primarily due to the following:
• | A $217.5 million decrease in Reorganization expenses due to the majority of the Och-Ziff Operating Group A Units vesting in November 2012, as these units granted at the time of the 2007 Offerings were generally subject to five-year vesting periods. |
• | A $64.1 million offsetting increase in compensation and benefits, primarily due to the following: (i) a $94.2 million increase in bonus expense due to higher incentive income resulting from significantly improved investment performance; (ii) a $6.9 million increase in amounts allocated to the Och-Ziff Operating Group D Units primarily due to higher incentive income; (iii) a $5.9 million increase in salaries and benefits due in part to an increase in our worldwide headcount from 434 as of December 31, 2011 to 468 as of December 31, 2012; and (iv) a $42.9 million offsetting decrease in equity-based compensation driven by the final vesting in November 2011 of RSUs granted in connection with our IPO. |
• | A $31.8 million offsetting increase in general, administrative and other expenses, primarily due to the following: (i) a $10.2 million increase in professional services fees; (ii) an $8.3 million increase in expense related to the change in tax receivable agreement liability driven by effective income tax rate changes related to income apportionment factors at the state and local level; (iii) a $4.9 million increase in recurring placement and related service fees on assets under management; (iv) a $2.5 million increase in information processing and communication costs; (v) a $1.4 million increase in business development costs; and (vi) $1.4 million of commitment fees recognized in 2012 related to the undrawn portion of our Delayed Draw Term Loan that were incurred prior to the drawdown in June 2012. |
• | A $10.3 million offsetting increase in expenses of consolidated Och-Ziff funds. Substantially all of these expenses are allocated to noncontrolling interests, as we only have a minimal ownership interest, if any, in each of these funds. These expenses, however, may reduce the amount of earnings from the consolidated funds allocated to us through our incentive income allocation as general partner of these funds. |
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Other Income
| Year Ended December 31, | | | Change | |
| 2012 (Restated) | | | 2011 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Net gains on investments in Och-Ziff funds and joint ventures | $ | 274 | | | $ | 632 | | | $ | (358 | ) | | | -57 | % |
Net gains on early retirement of debt | | - | | | | 12,494 | | | | (12,494 | ) | | | -100 | % |
Net gains of consolidated Och-Ziff funds | | 212,710 | | | | 6,656 | | | | 206,054 | | | | NM | |
Total Other Income | $ | 212,984 | | | $ | 19,782 | | | $ | 193,202 | | | | NM | |
Total other income increased by $193.2 million primarily due to the following:
• | A $206.1 million increase in net gains of consolidated Och-Ziff funds. Substantially all of this income is allocated to noncontrolling interests, as we only have a minimal ownership interest, if any, in each of these funds. We may, however, be allocated a portion of these earnings through our incentive income allocation as general partner of these funds. |
• | A $12.5 million offsetting decrease due to the net gains on early retirement of debt recognized in 2011. In November 2011, we repurchased and retired $254.1 million of the indebtedness outstanding under our 2007 Term Loan for $241.1 million, which resulted in a net gain of $12.5 million after deducting deal-related expenses, including the write-off of previously deferred financing costs. |
Income Taxes
| Year Ended December 31, | | | Change | |
| 2012 (Restated) | | | 2011 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Income taxes | $ | 82,861 | | | $ | 59,581 | | | $ | 23,280 | | | | 39 | % |
Income tax expense increased by $23.3 million from 2011, primarily due to a $26.5 million increase in federal deferred tax expense and a $3.0 million increase in foreign income tax expense as a result of higher taxable income. Partially offsetting the increase was a $5.5 million decrease in state and local taxes primarily due to effective income tax rate changes related to income apportionment factors at the state and local level. See Note 12 to our consolidated financial statements included in this annual report for information regarding the items affecting our effective income tax rate.
As of and for the years ended December 31, 2012 and 2011, we were not required to establish a liability for uncertain tax positions.
Net Loss Allocated to Noncontrolling Interests
| Year Ended December 31, | | | Change | |
| 2012 (Restated) | | | 2011 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Och-Ziff Operating Group A Units | $ | (538,055 | ) | | $ | (1,088,514 | ) | | $ | 550,459 | | | | -51 | % |
Consolidated Och-Ziff funds | | 266,341 | | | | 41,965 | | | | 224,376 | | | | NM | |
Other | | 9,514 | | | | 1,851 | | | | 7,663 | | | | 414 | % |
Total | $ | (262,200 | ) | | $ | (1,044,698 | ) | | $ | 782,498 | | | | -75 | % |
| | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | |
Redeemable noncontrolling interests | $ | 1,692 | | | $ | - | | | $ | 1,692 | | | | NM | |
The amount of net loss allocated to noncontrolling interests decreased by $782.5 million primarily due to the following:
• | A $550.5 million decrease in the amount of net loss allocated to the Och-Ziff Operating Group A Units, driven by the increase in incentive income and decrease in Reorganization expenses, as well as a decrease in our executive managing directors’ and the Ziffs’ interests in the Och-Ziff Operating Group in the form of Och-Ziff Operating Group A Units from 68.1% as of December 31, 2011 to 67.0% as of December 31, 2012. |
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• | A $224.4 million increase in the amount of net income allocated to the consolidated Och-Ziff funds driven primarily by the increase in income and net gains of consolidated Och-Ziff funds previously discussed. |
Net Loss Allocated to Class A Shareholders
| Year Ended December 31, | | | Change | |
| 2012 (Restated) | | | 2011 (Restated) | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Net loss allocated to Class A Shareholders | $ | (310,723 | ) | | $ | (418,990 | ) | | $ | 108,267 | | | | -26 | % |
The amount of net loss allocated to Class A Shareholders decreased by $108.3 million primarily due to a combination of higher incentive income and lower Reorganization expenses as discussed above, partially offset by an increase in our ownership interest in the Och-Ziff Operating Group. The increase in ownership interest was driven by the 2011 Offering, the issuance of Class A Shares for vested RSUs and the exchange of Och-Ziff Operating Group A Units for Class A Shares. As a result, a larger share of the losses of the Och-Ziff Operating Group was allocated to us.
Economic Income Analysis
In addition to analyzing our results on a GAAP basis, management also reviews our results on an “Economic Income” basis. Economic Income excludes the adjustments described below that are required for presentation of our results on a GAAP basis, but that management does not consider when evaluating operating performance in any given period. Management, therefore, uses Economic Income as the basis on which it evaluates our financial performance and makes resource allocation and other operating decisions. Management considers it important that investors review the same operating information that it uses.
Economic Income is a measure of pre-tax operating performance that excludes the following from our results on a GAAP basis:
• | Income allocations to our executive managing directors and the Ziffs on their direct interests in the Och-Ziff Operating Group. Management reviews operating performance at the Och-Ziff Operating Group level, where substantially all of our operations are performed, prior to making any income allocations. |
• | Reorganization expenses related to the 2007 Offerings, equity-based compensation expenses and depreciation and amortization expenses, as management does not consider these non-cash expenses to be reflective of operating performance. However, the fair value of RSUs that are settled in cash to employees or executive managing directors is included as an expense at the time of settlement. |
• | Changes in the tax receivable agreement liability, net gains on early retirement of debt and net gains (losses) on investments in Och-Ziff funds, as management does not consider these items to be reflective of operating performance. |
• | Amounts related to the consolidated Och-Ziff funds, including the related eliminations of management fees and incentive income, as management reviews the total amount of management fees and incentive income earned in relation to total assets under management and fund performance. We also defer the recognition of incentive income allocations from the consolidated Och-Ziff funds until all clawback contingencies are resolved, consistent with the revenue recognition policy for the funds we do not consolidate. |
In addition, expenses related to compensation and profit-sharing arrangements based on fund investment performance are recognized at the end of the relevant performance measurement period, as management reviews the total compensation expense related to these arrangements in relation to any incentive income earned by the respective fund.
As a result of the adjustments described above, as well as an adjustment to present management fees net of recurring placement and related service fees (rather than considering these fees an expense), management fees, incentive income, compensation and benefits, non-compensation expenses and net income (loss) allocated to noncontrolling interests as presented on an Economic Income basis are also non-GAAP measures. No adjustments to the GAAP basis have been made for other revenues and net gains (losses) on joint ventures. For reconciliations of our non-GAAP measures to the respective GAAP measures, please see “—Economic Income Reconciliations” at the end of this MD&A.
Our non-GAAP financial measures should not be considered as alternatives to our GAAP net income (loss) allocated to Class A Shareholders or cash flow from operations, or as indicative of liquidity or the cash available to fund operations. Our non-GAAP measures may not be comparable to similarly titled measures used by other companies.
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We conduct substantially all of our operations through our only reportable segment under GAAP, the Och-Ziff Funds segment, which provides asset management services to our multi-strategy funds, credit funds, CLOs and other alternative investment vehicles. Other Operations are primarily comprised of our real estate business, which provides asset management services to our real estate funds.
Year Ended December 31, 2013 Compared to Year Ended December 31, 2012
Economic Income Revenues (Non-GAAP)
| Year Ended December 31, 2013 | | | Year Ended December 31, 2012 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | | | Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Economic Income Basis | | | | | | | | | | | | | | | | | | | | | | | |
Management fees | $ | 534,865 | | | $ | 10,894 | | | $ | 545,759 | | | $ | 479,379 | | | $ | 10,616 | | | $ | 489,995 | |
Incentive Income | | 1,082,578 | | | | - | | | | 1,082,578 | | | | 600,434 | | | | - | | | | 600,434 | |
Other revenues | | 2,130 | | | | 20 | | | | 2,150 | | | | 930 | | | | 108 | | | | 1,038 | |
Total Economic Income Revenues | $ | 1,619,573 | | | $ | 10,914 | | | $ | 1,630,487 | | | $ | 1,080,743 | | | $ | 10,724 | | | $ | 1,091,467 | |
Economic Income revenues increased by $539.0 million primarily due to the following:
• | A $482.1 million increase in incentive income, driven by the improved investment performance in our funds. Our investment performance in 2013 was driven primarily by our credit-related strategies and long/short equity special situations. Also contributing to the increase was the crystallization of $69.6 million of incentive income during the 2013 first quarter on certain of our credit assets due to the restructuring of the terms and the expansion of a relationship with an existing investor. Additionally, the crystallization of $80.3 million of incentive income on a portion of our multi-strategy assets under management for which the three-year performance measurement period expired during 2013 contributed to the increase. |
• | A $55.8 million increase in management fees primarily due to the year-over-year growth in assets under management, which was driven by a combination of performance-related appreciation and capital net inflows. Our average management fee rate was 1.53% in 2013, lower than the 1.63% in 2012. This decline was due primarily to growth in our dedicated credit platforms and CLOs. These products generally have lower management fee rates than our traditional hedge fund products, consistent with market convention for these products. |
Economic Income Expenses (Non-GAAP)
| Year Ended December 31, 2013 | | | Year Ended December 31, 2012 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | | | Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Economic Income Basis | | | | | | | | | | | | | | | | | | | | | | | |
Compensation and benefits | $ | 393,268 | | | $ | 12,868 | | | $ | 406,136 | | | $ | 283,655 | | | $ | 10,196 | | | $ | 293,851 | |
Non-compensation expenses | | 123,614 | | | | 2,240 | | | | 125,854 | | | | 102,213 | | | | 1,408 | | | | 103,621 | |
Total Economic Income Expenses | $ | 516,882 | | | $ | 15,108 | | | $ | 531,990 | | | $ | 385,868 | | | $ | 11,604 | | | $ | 397,472 | |
Economic Income expenses increased by $134.5 million primarily due to the following:
• | A $112.3 million increase in compensation and benefits primarily driven by the following: (i) a $101.3 million increase in discretionary cash bonus expense due to higher incentive income resulting from improved investment performance, including $39.6 million received in 2013 by eligible executive managing directors under the PIP; and (ii) an $11.0 million increase in salaries and benefits due in part to an increase in our worldwide headcount as discussed above in “—Results of Operations.” The ratio of salaries and benefits to management fees was 16% in 2013 and 2012. The ratio of bonus expense to Economic Income revenues was 19% in 2013, slightly down from 20% in 2012. |
• | A $22.2 million increase in non-compensation expenses primarily driven by a $13.5 million increase in professional services fees related to business operations, infrastructure and expenses associated with regulation and compliance. Also contributing to the increase was a $2.1 million increase in information processing and communication expenses, a $1.9 million increase in occupancy and equipment costs and a $1.9 million increase in business development costs. The ratio of non-compensation expenses to management fees was 23% in 2013 compared to 21% in 2012. |
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Other Economic Income Items (Non-GAAP)
| Year Ended December 31, 2013 | | | Year Ended December 31, 2012 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | | | Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Economic Income Basis | | | | | | | | | | | | | | | | | | | | | | | |
Net gains (losses) on joint ventures | $ | 1,533 | | | $ | - | | | $ | 1,533 | | | $ | 310 | | | $ | (111 | ) | | $ | 199 | |
Net income (loss) allocated to noncontrolling interests | $ | (12 | ) | | $ | 1,346 | | | $ | 1,334 | | | $ | (6 | ) | | $ | 86 | | | $ | 80 | |
Net gains (losses) on joint ventures represent the gains (losses) on joint ventures established to expand certain of our private investments platforms. Net income (loss) allocated to noncontrolling interests represents the amount of income (loss) that was reduced from Economic Income and allocated to residual interests in certain businesses not owned by us.
Economic Income (Non-GAAP)
| Year Ended December 31, | | | Change | |
| 2013 | | | 2012 | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Economic Income: | | | | | | | | | | | | | | | |
Och-Ziff Funds segment | $ | 1,104,236 | | | $ | 695,191 | | | $ | 409,045 | | | | 59 | % |
Other Operations | | (5,540 | ) | | | (1,077 | ) | | | (4,463 | ) | | | 414 | % |
Total Company | $ | 1,098,696 | | | $ | 694,114 | | | $ | 404,582 | | | | 58 | % |
Economic Income increased $404.6 million primarily due to increases in incentive income and management fees, partially offset by increases in compensation and non-compensation expenses.
Year Ended December 31, 2012 Compared to Year Ended December 31, 2011
Economic Income Revenues (Non-GAAP)
| Year Ended December 31, 2012 | | | Year Ended December 31, 2011 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | | | Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Economic Income Basis | �� | | | | | | | | | | | | | | | | | | | | | | |
Management fees | $ | 479,379 | | | $ | 10,616 | | | $ | 489,995 | | | $ | 471,550 | | | $ | 14,642 | | | $ | 486,192 | |
Incentive Income | | 600,434 | | | | - | | | | 600,434 | | | | 65,026 | | | | - | | | | 65,026 | |
Other revenues | | 930 | | | | 108 | | | | 1,038 | | | | 1,729 | | | | 529 | | | | 2,258 | |
Total Economic Income Revenues | $ | 1,080,743 | | | $ | 10,724 | | | $ | 1,091,467 | | | $ | 538,305 | | | $ | 15,171 | | | $ | 553,476 | |
Economic Income revenues increased by $538.0 million, primarily due to a $535.4 million increase in incentive income driven by an approximately $579.0 million increase due to improved investment performance in our funds, partially offset by a $43.6 million decrease due to the high-water marks in our funds going into 2012. As a result of the losses experienced by our funds in 2011, we were not able to earn incentive income in 2012 until those losses were recovered. Our investment performance in 2012 was driven primarily by our credit-related strategies and long/short equity special situations.
Our average management fee rate, before the impact of eliminations, decreased to 1.63% in 2012 from 1.68% in 2011 primarily due to growth in our dedicated credit platforms and other longer-term assets under management, as well as the launch of our first two CLOs in 2012. These funds generally have lower management fee rates than our traditional hedge fund products, consistent with market convention for these products.
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Economic Income Expenses (Non-GAAP)
| Year Ended December 31, 2012 | | | Year Ended December 31, 2011 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | | | Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Economic Income Basis | | | | | | | | | | | | | | | | | | | | | | | |
Compensation and benefits | $ | 283,655 | | | $ | 10,196 | | | $ | 293,851 | | | $ | 183,575 | | | $ | 9,550 | | | $ | 193,125 | |
Non-compensation expenses | | 102,213 | | | | 1,408 | | | | 103,621 | | | | 82,263 | | | | 3,574 | | | | 85,837 | |
Total Economic Income Expenses | $ | 385,868 | | | $ | 11,604 | | | $ | 397,472 | | | $ | 265,838 | | | $ | 13,124 | | | $ | 278,962 | |
Economic Income expenses increased by $118.5 million primarily due to the following:
• | A $100.7 million increase in compensation and benefits, primarily due to the following: (i) a $94.8 million increase in bonus expense due to higher incentive income resulting from significantly improved investment performance; and (ii) a $5.9 million increase in salaries and benefits, primarily due to an increase in our worldwide headcount. The ratio of salaries and benefits to management fees was 16% in 2012 compared to 15% in 2011. The increase was primarily due to higher salaries and benefits year-over-year. The ratio of bonus expense to total Economic Income revenues was 20% in 2012, compared to 22% in 2011. The decrease was due to the year-over-year increase in incentive income. |
• | A $17.8 million increase in non-compensation expenses, primarily due to the following: (i) a $10.2 million increase in professional services fees; (ii) a $2.7 million increase in information processing and communication costs; (iii) a $1.4 million increase in business development costs; and (iv) $1.4 million of commitment fees recognized in 2012 related to the undrawn portion of our Delayed Draw Term Loan that were incurred prior to the drawdown in June 2012. The ratio of non-compensation expenses to management fees increased to 21% in 2012, compared to 18% in 2011. The increase was driven by higher non-compensation expenses. |
Other Economic Income Items (Non-GAAP)
| Year Ended December 31, 2012 | | | Year Ended December 31, 2011 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | | | Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Economic Income Basis | | | | | | | | | | | | | | | | | | | | | | | |
Net gains (losses) on joint ventures | $ | 310 | | | $ | (111 | ) | | $ | 199 | | | $ | 469 | | | $ | 123 | | | $ | 592 | |
Net income (loss) allocated to noncontrolling interests | $ | (6 | ) | | $ | 86 | | | $ | 80 | | | $ | - | | | $ | 1,334 | | | $ | 1,334 | |
Net gains (losses) on joint ventures represent the gains (losses) on joint ventures established to expand certain of our private investments platforms. Net income (loss) allocated to noncontrolling interests represents the amount of income (loss) that was reduced from Economic Income and allocated to residual interests in certain businesses not owned by us.
Economic Income (Non-GAAP)
| Year Ended December 31, | | | Change | |
| 2012 | | | 2011 | | | $ | | | % | |
| (dollars in thousands) | | | | | |
Economic Income: | | | | | | | | | | | | | | | |
Och-Ziff Funds segment | $ | 695,191 | | | $ | 272,936 | | | $ | 422,255 | | | | 155 | % |
Other Operations | | (1,077 | ) | | | 836 | | | | (1,913 | ) | | NM | |
Total Company | $ | 694,114 | | | $ | 273,772 | | | $ | 420,342 | | | | 154 | % |
Economic Income increased $420.3 million primarily due to higher incentive income, partially offset by increases in discretionary cash bonuses and non-compensation expenses.
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Liquidity and Capital Resources
The working capital needs of our business have historically been met, and we anticipate will continue to be met, through cash generated from management fees and incentive income earned by the Och-Ziff Operating Group from our funds. We currently do not incur any indebtedness to finance our ongoing operations, but we have outstanding indebtedness that was incurred in connection with the refinancing of indebtedness entered into in connection with the Reorganization:
Over the next 12 months, we expect that our primary liquidity needs will be to:
• | Pay our operating expenses, primarily consisting of compensation and benefits, as well as any related tax withholding obligations, and non-compensation expenses. |
• | Repay borrowings and interest thereon. |
• | Provide capital to facilitate the growth of our business. |
• | Pay income taxes and amounts to our executive managing directors and the Ziffs with respect to the tax receivable agreement as discussed below under “—Tax Receivable Agreement.” |
• | Make cash distributions in accordance with our distribution policy as discussed below under “—Dividends and Distributions.” |
Historically, management fees have been more than sufficient to cover all of our “fixed” operating expenses, which we define as salaries and benefits and our non-compensation costs. We cannot predict the amount of incentive income, if any, which we may earn in any given year. Accordingly, we do not rely on incentive income to meet our fixed operating expenses. Total annual revenues, which are heavily influenced by the amount of annual incentive income we earn, historically have been sufficient to fund all of our other working capital needs, including annual discretionary cash bonuses. These cash bonuses, which historically have comprised our largest cash operating expense, are variable such that in any year where total annual revenues are greater or less than the prior year, cash bonuses may be adjusted accordingly. Our ability to scale our largest cash operating expense to our total annual revenues helps us manage our cash flow and liquidity position from year to year.
Executive managing directors participating in the PIP may be eligible to receive discretionary annual cash awards each year for a five-year period that commenced in 2013, if we earn incentive income in the relevant year. The maximum aggregate amount of cash that may be awarded for each year under the PIP to the participating executive managing directors, collectively, will be capped at 10% of our incentive income earned during that year, up to a maximum aggregate amount of $39.6 million. Whether any cash is awarded under the PIP in a particular year, and the amount of such awards, will be determined by the Compensation Committee of the Board in its sole discretion, based on recommendations from Mr. Och for that year.
Based on our past results, management’s experience and our current level of assets under management, we believe that our existing cash resources, together with the cash generated from management fees, will be sufficient to meet our anticipated fixed operating expenses and other working capital needs for at least the next 12 months. As we have done historically, we will determine the amount of discretionary cash bonuses, including discretionary annual cash awards under the PIP described above, during the fourth quarter of each year, based on our total annual revenues. We intend to fund this amount through fourth quarter management fees and incentive income crystallized on December 31, which represents the majority of the incentive income we typically earn each year. Although we cannot predict the amount, if any, of incentive income we may earn, we are able to regularly monitor expected management fees and we believe that we will be able to adjust our expense infrastructure, including discretionary cash bonuses, as needed to meet the requirements of our business and in order to maintain positive operating cash flows. Nevertheless, if we generate insufficient cash flows from operations to meet our short-term liquidity needs, we may have to borrow funds or sell assets, subject to existing contractual arrangements.
We may use cash on hand to repay borrowings under the Delayed Draw Term Loan in part prior to the maturity date, which would reduce amounts available to distribute to our Class A Shareholders. For any amounts unpaid as of the maturity date, we will be required to repay the remaining balance by using cash on hand, refinancing the remaining balance by entering into new credit facilities, which could result in higher borrowing costs, or by raising cash by issuing equity or other securities, which would dilute existing shareholders. No assurance can be given that we will be able to enter into new credit facilities or issue equity or other securities in the future on attractive terms or at all. Any new credit facilities that we may be able to enter into may have covenants that impose additional limitations on us, including with respect to making distributions, entering into business transactions or other matters, and may result in increased interest expense. If we are unable to meet our debt obligations on terms that are favorable to us, our business may be adversely impacted. See “—Debt Obligations” for more information regarding our Delayed Draw Term Loan.
For our other longer-term liquidity requirements, we expect to continue to fund our fixed operating expenses through management fees and to fund discretionary cash bonuses and the repayment of our debt obligations through a combination of management fees and incentive income. We may also decide to meet these requirements by issuing debt or additional equity or other securities. Over the long term, we believe we will be able to grow our assets under management and generate positive investment performance in our funds, which we expect will allow us to grow our management fees and incentive income in amounts sufficient to cover our long-term liquidity requirements.
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To maintain maximum flexibility to meet demands and opportunities both in the short and long term, and subject to existing contractual arrangements, we may want to retain cash, issue additional equity or borrow additional funds to:
• | Support the future growth in our business. |
• | Create new or enhance existing products and investment platforms. |
• | Pursue new investment opportunities. |
• | Develop new distribution channels. |
Market conditions and other factors may make it more difficult or costly to raise or borrow additional funds. Excessive costs or other significant market barriers may limit or prevent us from maximizing our growth potential and flexibility.
Debt Obligations
Delayed Draw Term Loan
As of December 31, 2013, we had $384.2 million of indebtedness outstanding under the Delayed Draw Term Loan that was primarily used to refinance the indebtedness outstanding under our 2007 Term Loan, as well as the note payable on our corporate aircraft. The Delayed Draw Term Loan includes two financial maintenance covenants. The first prohibits total assets under management as of the last day of any fiscal quarter to be less than $17.5 billion for two successive quarters, and the second prohibits the “economic income leverage ratio” (as defined in the Delayed Draw Term Loan) as of the last day of any fiscal quarter from exceeding 4.0 to 1.0. The Delayed Draw Term Loan also limits the amount of distributions the Och-Ziff Operating Group can pay in a 12-month period to its “free cash flow.” Please see Note 9 to our consolidated financial statements included in this annual report for a description of the repayment terms, as well as additional details related to the financial covenants and restrictions under the Delayed Draw Term Loan.
On March 13, 2014, OZ Management and certain of our other subsidiaries entered into an amendment and waiver with the administrative agent and certain of the lenders under our Delayed Draw Term Loan in order to, among other things, waive any breach or violation of any provision of the Delayed Draw Term Loan that may result from the restatements and reclassifications discussed in Note 2 to our consolidated financial statements included in this annual report, including any defaults or events of default that might result therefrom (including by way of cross-default).
Aircraft Credit Facility
On February 14, 2014, we entered into a secured multiple draw term loan agreement (the “Aircraft Loan”) for up to $59.0 million to finance the purchase of a new corporate aircraft expected to be delivered in the first quarter of 2015. The Aircraft Loan is guaranteed by OZ Management, OZ Advisors and OZ Advisors II. A $16.0 million borrowing was made to fund a progress payment due in February 2014. Amounts borrowed prior to aircraft delivery to fund progress payments under the aircraft purchase agreement bear interest at a rate of LIBOR plus 1.40%. Following aircraft delivery, we will have the option of selecting a 5- or 7-year term with either a fixed or floating interest rate, which rate will vary based on the term selected. There are no financial covenants associated with the Aircraft Loan. No principal payments are due prior to aircraft delivery; however, the Aircraft Loan will become due if the aircraft is not delivered by October 30, 2015. Following aircraft delivery, borrowings under the Aircraft Loan will be payable in installments for the term of the facility, with a balloon payment due upon maturity. The amount of the installment and balloon payments will be determined based upon the selection of either a 5- or 7-year term. The Aircraft Loan includes other customary terms and conditions, including customary events of default and covenants.
On March 13, 2014, OZ Management, OZ Advisors, OZ Advisors II and one of our other subsidiaries entered into a waiver with the lender under our Aircraft Loan in order to waive any breach or violation of any provision of the Aircraft Loan documents that may result from the restatements and reclassifications discussed in Note 2 to our consolidated financial statements included in this annual report, including any defaults or events of default that might result therefrom (including by way of cross-default).
Tax Receivable Agreement
We have made, and may in the future be required to make, payments under the tax receivable agreement that we entered into with our executive managing directors and the Ziffs. The purchase by the Och-Ziff Operating Group of Och-Ziff Operating Group A Units from our executive managing directors and the Ziffs with proceeds from the 2007 Offerings, and subsequent taxable exchanges by them of Och-Ziff Operating Group A Units for our Class A Shares on a one-for-one basis (or, at our option, a cash equivalent), resulted, and, in the case of future exchanges, are anticipated to result, in an increase in the tax basis of the assets of the Och-Ziff Operating Group that would not otherwise have been available. We anticipate that any such tax basis adjustment resulting from an exchange will be allocated principally to certain intangible assets of the Och-Ziff Operating Group, and we will derive our tax benefits principally through amortization of these intangibles over a 15-year period. Consequently, these tax basis adjustments will increase, for tax purposes, our
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depreciation and amortization expenses and will therefore reduce the amount of tax that Och-Ziff Corp and any other corporate taxpaying entities that hold Och-Ziff Operating Group B Units in connection with an exchange, if any, would otherwise be required to pay in the future. Accordingly, pursuant to the tax receivable agreement, such corporate taxpaying entities (including Och-Ziff Capital Management Group LLC if it is treated as a corporate taxpayer) have agreed to pay our executive managing directors and the Ziffs 85% of the amount of cash savings, if any, in federal, state and local income taxes in the United States that these entities actually realize related to their units as a result of such increases in tax basis.
In connection with the departure of certain former executive managing directors since the 2007 Offerings, the right to receive payments under the tax receivable agreement by those former executive managing directors was contributed to the Och-Ziff Operating Group. As a result, we expect to pay to the other executive managing directors and the Ziffs approximately 78% (from 85% at the time of the 2007 Offerings) of the amount of cash savings, if any, in federal, state and local income taxes in the United States that we actually realize as a result of such increases in tax basis. To the extent that we do not realize any cash savings, we would not be required to make corresponding payments under the tax receivable agreement.
Payments under the tax receivable agreement are anticipated to increase the tax basis adjustment of intangible assets resulting from a prior exchange, with such increase being amortized over the remainder of the amortization period applicable to the original basis adjustment of such intangible assets resulting from such prior exchange. It is anticipated that this will result in increasing annual amortization deductions in the taxable years of and after such increases to the original basis adjustments, and potentially will give rise to increasing tax savings with respect to such years and correspondingly increasing payments under the tax receivable agreement.
As of December 31, 2013, assuming no material changes in the relevant tax law and that we generate sufficient taxable income to realize the full tax benefit of the increased amortization resulting from the increase in tax basis of our assets, we expect to pay our executive managing directors and the Ziffs approximately $780.7 million over the next 15 years as a result of the cash savings to our intermediate holding companies from the purchase of Och-Ziff Operating Group A Units from our executive managing directors and the Ziffs with proceeds from the 2007 Offerings and the exchange of Och-Ziff Operating Group A Units for Class A Shares. Future cash savings and related payments to our executive managing directors under the tax receivable agreement in respect of subsequent exchanges would be in addition to these amounts. The obligation to make payments under the tax receivable agreement is an obligation of Och-Ziff Corp, and any other corporate taxpaying entities that hold Och-Ziff Operating Group B Units, and not of the Och-Ziff Operating Group entities. We may need to incur debt to finance payments under the tax receivable agreement to the extent the entities within the Och-Ziff Operating Group do not distribute cash to our intermediate corporate tax paying entities in an amount sufficient to meet our obligations under the tax receivable agreement.
The actual increase in tax basis of the Och-Ziff Operating Group assets resulting from an exchange or from payments under the tax receivable agreement, as well as the amortization thereof and the timing and amount of payments under the tax receivable agreement, will vary based upon a number of factors, including the following:
• | The amount and timing of the income of Och-Ziff Corp will impact the payments to be made under the tax receivable agreement. To the extent that Och-Ziff Corp does not have sufficient taxable income to utilize the amortization deductions available as a result of the increased tax basis in the Och-Ziff Operating Group assets, payments required under the tax receivable agreement would be reduced. |
• | The price of our Class A Shares at the time of any exchange will determine the actual increase in tax basis of the Och-Ziff Operating Group assets resulting from such exchange; payments under the tax receivable agreement resulting from future exchanges, if any, will be dependent in part upon such actual increase in tax basis. |
• | The composition of the Och-Ziff Operating Group’s assets at the time of any exchange will determine the extent to which Och-Ziff Corp may benefit from amortizing its increased tax basis in such assets and thus will impact the amount of future payments under the tax receivable agreement resulting from any future exchanges. |
• | The extent to which future exchanges are taxable will impact the extent to which Och-Ziff Corp will receive an increase in tax basis of the Och-Ziff Operating Group assets as a result of such exchanges, and thus will impact the benefit derived by Och-Ziff Corp and the resulting payments, if any, to be made under the tax receivable agreement. |
• | The tax rates in effect at the time any potential tax savings are realized, which would affect the amount of any future payments under the tax receivable agreement. |
Depending upon the outcome of these factors, payments that we may be obligated to make to our executive managing directors and the Ziffs under the tax receivable agreement in respect of exchanges could be substantial. In light of the numerous factors affecting our obligation to make payments under the tax receivable agreement, the timing and amounts of any such actual payments are not reasonably ascertainable.
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Dividends and Distributions
The following table presents the cash dividends declared on our Class A Shares in the first quarter of 2014 and in the two most recent fiscal years, and the related cash distributions to our executive managing directors and the Ziffs with respect to their direct ownership interests in the Och-Ziff Operating Group:
| | Class A Shares | | | | | |
Payment Date | | Record Date | | Dividend per Share | | | Related Distributions to Executive Managing Directors and the Ziffs (dollars in thousands) | |
February 25, 2014 | | February 18, 2014 | | $ | 1.12 | | | $ | 420,724 | |
November 22, 2013 | | November 15, 2013 | | $ | 0.25 | | | $ | 89,677 | |
August 19, 2013 | | August 12, 2013 | | $ | 0.14 | | | $ | 57,281 | |
May 20, 2013 | | May 13, 2013 | | $ | 0.28 | | | $ | 111,380 | |
February 26, 2013 | | February 19, 2013 | | $ | 0.75 | | | $ | 287,270 | |
November 19, 2012 | | November 12, 2012 | | $ | 0.12 | | | $ | 48,806 | |
August 20, 2012 | | August 13, 2012 | | $ | 0.14 | | | $ | 57,635 | |
May 21, 2012 | | May 14, 2012 | | $ | 0.10 | | | $ | 42,686 | |
February 28, 2012 | | February 21, 2012 | | $ | 0.04 | | | $ | 15,245 | |
We intend to distribute to our Class A Shareholders substantially all of their pro rata share of our annual Economic Income (as described above under “—Economic Income Analysis”) in excess of amounts determined by us to be necessary or appropriate to provide for the conduct of our business, to pay income taxes, to pay any amounts owed under the tax receivable agreement, to make appropriate investments in our business and our funds, and to make payments on any of our other obligations.
When we pay dividends on our Class A Shares, we also intend to make distributions to our executive managing directors and the Ziffs on their interests in the Och-Ziff Operating Group, subject to the terms of the limited partnership agreements of the Och-Ziff Operating Group entities.
The declaration and payment of future distributions will be at the sole discretion of our Board of Directors, which may change our distribution policy or reduce or eliminate our distributions at any time in its discretion. Our Board of Directors will take into account such factors as it may deem relevant, including general economic and business conditions; our strategic plans and prospects; our business and investment opportunities; our financial condition and operating results; working capital requirements and anticipated cash needs; contractual restrictions and obligations, including payment obligations pursuant to the tax receivable agreement and restrictions pursuant to our term loan; legal, tax and regulatory restrictions; other restrictions and limitations on the payment of distributions by us to our Class A Shareholders or by our subsidiaries to us; and such other factors as our Board of Directors may deem relevant.
The declaration and payment of any distribution may be subject to legal, contractual or other restrictions. For example, as a Delaware limited liability company, Och-Ziff Capital Management Group LLC is not permitted to make distributions if and to the extent that after giving effect to such distributions, its liabilities would exceed the fair value of its assets. We are also not permitted to make distributions if we are in default under our term loan. Our term loan also limits the amount of distributions we can pay to our “free cash flow,” as discussed above. Our cash needs and payment obligations may fluctuate significantly from quarter to quarter, and we may have material unexpected expenses in any period. This may cause amounts available for distribution to significantly fluctuate from quarter to quarter or may reduce or eliminate such amounts.
Additionally, RSUs outstanding accrue dividend equivalents equal to the dividend amounts paid on our Class A Shares. To date, these dividend equivalents have been awarded in the form of additional RSUs, which accrue additional dividend equivalents. The dividend equivalents will only be paid if the related RSUs vest and will be settled at the same time as the underlying RSUs. Our Board of Directors has the right to determine whether the RSUs and any related dividend equivalents will be settled in Class A Shares or in cash. We currently withhold shares to satisfy the tax withholding obligations related to vested RSUs and dividend equivalents held by our employees, which results in the use of cash from operations or borrowings to satisfy these tax-withholding payments.
In accordance with the Och-Ziff Operating Group entities’ limited partnership agreements, we may cause the applicable Och-Ziff Operating Group entities to distribute cash to the intermediate holding companies, our executive managing directors and the Ziffs in an amount at least equal to the presumed maximum tax liabilities arising from their direct ownership in these entities. The presumed maximum tax liabilities are based upon the presumed maximum income allocable to any such unit holder at the maximum combined U.S. federal, New York State and New York City tax rates. Holders of our Class A Shares may not always receive distributions at a time when our intermediate holding companies, our executive managing directors and the Ziffs are receiving distributions on their interests, as distributions to our intermediate holding companies may be used to settle tax liabilities, if any, or other obligations. Such tax distributions will take into account the disproportionate income allocation (but not a disproportionate cash allocation) to the unit holders with respect to
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“built-in gain assets,” if any, at the time of the 2007 Offerings. Consequently, Och-Ziff Operating Group tax distributions may be greater than if such assets had a tax basis equal to their value at the time of the 2007 Offerings.
Our cash distribution policy has certain risks and limitations, particularly with respect to our liquidity. Although we expect to pay distributions according to our policy, we may not make distributions according to our policy, or at all, if, among other things, we do not have the cash necessary to pay the distribution. Moreover, if the Och-Ziff Operating Group’s cash flows from operations are insufficient to enable it to make required minimum tax distributions discussed above, the Och-Ziff Operating Group may have to borrow funds or sell assets, and thus our liquidity and financial condition could be materially adversely affected. Furthermore, by paying cash distributions rather than investing that cash in our businesses, we might risk slowing the pace of our growth, or not having a sufficient amount of cash to fund our obligations, operations, new investments or unanticipated capital expenditures, should the need arise. In such event, we may not be able to execute our business and growth strategy to the extent intended.
Our Funds’ Liquidity and Capital Resources
Our funds have access to liquidity from our prime brokers and other counterparties. Additionally, our funds may have committed facilities in addition to regular financing from our counterparties. These sources of liquidity provide our funds with additional financing resources, allowing them to take advantage of opportunities in the global marketplace.
Our funds’ current liquidity position could be adversely impacted by any substantial, unanticipated investor redemptions from our funds that are made within a short time period. As discussed above in “—Assets Under Management and Fund Performance,” capital contributions from investors in our funds generally are subject to initial lock-up periods of one to three years. Following the expiration of these lock-up periods, subject to certain limitations, investors may redeem capital generally on a quarterly or annual basis upon giving 30 to 90 days’ prior written notice. These lock-ups and redemption notice periods help us to manage our liquidity position. However, upon the payment of a redemption fee to the applicable fund and upon giving 30 days’ prior written notice, certain investors may redeem capital during the lock-up period.
We also follow a rigorous risk management process and regularly monitor the liquidity of our funds’ portfolios in relation to economic and market factors and the timing of potential investor redemptions. As a result of this process, we may determine to reduce exposure or increase the liquidity of our funds’ portfolios at any time, whether in response to global economic and market conditions, redemption requests or otherwise. For these reasons, we believe we will be well prepared to address market conditions and redemption requests, as well as any other events, with limited impact on our funds’ liquidity position. Nevertheless, significant redemptions made during a single quarter could adversely affect our funds’ liquidity position, as we may meet redemptions by using our funds’ available cash or selling assets (possibly at a loss). Such actions would result in lower assets under management, which would reduce the amount of management fees and incentive income we may earn. Our funds could also meet redemption requests by increasing leverage, provided we are able to obtain financing on reasonable terms, if at all. We believe our funds have sufficient liquidity to meet any anticipated redemptions for the foreseeable future.
Cash Flows Analysis
Operating Activities. Net cash from operating activities was $1.1 billion, $(341.2) million and $368.4 million in 2013, 2012 and 2011, respectively. Our net cash flows from operating activities are generally comprised of current-year management fees, the collection of incentive income earned during the fourth quarter of the previous year, less cash operating expenses. Additionally, net cash from operating activities also includes the investment activities of the funds we consolidate. These investment-related cash flows are of the consolidated funds and do not directly impact the cash flows related to our Class A Shareholders.
The increase in net cash provided by operating activities in 2013 compared to 2012 was primarily due to the increase in incentive income in 2012 compared to 2011, partially offset by higher discretionary cash bonuses related to 2012 compared to 2011. Incentive income is collected and the related cash bonus payments are paid out during the first quarter of the following year. Also contributing to the increase were lower cash outflows related to the investment activities of the consolidated funds.
The decrease in net cash provided by operating activities in 2012 compared to 2011 was primarily due to lower incentive income in 2011 compared to 2010. Additionally, net cash from operating activities also declined due to increased cash outflows related to the investment activities of the consolidated funds.
Investing Activities. There were no significant changes in the net cash used in investing activities, as investment-related cash flows of the consolidated Och-Ziff funds are classified within operating activities.
Financing Activities. Net cash from financing activities was $(1.0) billion, $357.4 million and $(333.9) million in 2013, 2012 and 2011, respectively. Our net cash from financing activities are generally comprised of dividends paid to our Class A Shareholders, borrowings and repayments related to our debt obligations, and withholding taxes on vested RSUs. Contributions from noncontrolling interests, substantially all of which relate to fund investor contributions into the consolidated funds, and distributions to noncontrolling
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interests, which relate to fund investor redemptions and distributions to our executive managing directors and the Ziffs on their Och-Ziff Operating Group A Units, are also included in net cash from financing activities.
We paid dividends to our Class A Shareholders of $213.9 million, $56.7 million and $104.1 million and paid distributions to our executive managing directors and the Ziffs on their Och-Ziff Operating Group A Units of $535.1 million, $159.8 million and $410.2 million in 2013, 2012 and 2011, respectively.
The increase in net cash used in financing activities in 2013 compared to 2012 was primarily due to increases in distributions on the Och-Ziff Operating Group A Units and dividends to Class A Shareholders. These increases were driven by the higher incentive income in 2012 compared to 2011, partially offset by higher discretionary cash bonuses related to 2012 compared to 2011, as discussed above in
“—Operating Activities.” Also contributing to the increase were higher cash outflows to investors in the consolidated funds.
The increase in net cash provided by financing activities in 2012 compared to net cash used in financing activities in 2011 was primarily due to a $384.5 million drawdown under the Delayed Draw Term Loan, which was used primarily to refinance the $364.6 million indebtedness outstanding under the 2007 Term Loan and the $10.7 million indebtedness outstanding under our aircraft loan. The increase in net cash from financing activities was also driven by an increase in capital contributions by fund investors into the consolidated funds (noncontrolling interests). Also driving the increase were declines in dividends and distributions to our Class A Shareholders and to our executive managing directors and the Ziffs on their Och-Ziff Operating Group A Units primarily due to lower incentive income in 2011 compared to 2010, as incentive income is generally collected from our funds and paid out as dividends and distributions during the first quarter of the following year. In 2011, net cash from financing activities also included $238.8 million of proceeds from the 2011 Offering.
Contractual Obligations
The following table summarizes our contractual cash obligations as of December 31, 2013, and the effect such obligations are expected to have on our liquidity and cash flows in future periods:
| 2014 | | | 2015 - 2016 | | | 2017 - 2018 | | | 2019 - Thereafter | | | Total | |
| (dollars in thousands) | |
Long-term debt | $ | 3,827 | | | $ | 380,350 | | | $ | - | | | $ | - | | | $ | 384,177 | |
Estimated interest on long-term debt(1) | | 6,776 | | | | 13,368 | | | | - | | | | - | | | | 20,144 | |
Operating leases(2) | | 20,750 | | | | 46,006 | | | | 43,431 | | | | 200,418 | | | | 310,605 | |
Tax receivable agreement(3) | | 43,169 | | | | 102,452 | | | | 113,264 | | | | 521,820 | | | | 780,705 | |
Purchase obligations(4) | | 48,000 | | | | 7,000 | | | | - | | | | - | | | | 55,000 | |
Total contractual obligations excluding consolidated CLOs | | 122,522 | | | | 549,176 | | | | 156,695 | | | | 722,238 | | | | 1,550,631 | |
Notes payable of consolidated CLOs(5) | | - | | | | - | | | | - | | | | 2,825,300 | | | | 2,825,300 | |
Estimated interest on notes payable of consolidated CLOs(6) | | 58,090 | | | | 116,149 | | | | 116,149 | | | | 335,252 | | | | 625,640 | |
Total Contractual Obligations | $ | 180,612 | | | $ | 665,325 | | | $ | 272,844 | | | $ | 3,882,790 | | | $ | 5,001,571 | |
(1) | Represents the expected future interest payments on our variable-rate Delayed Draw Term Loan based on the LIBOR rate in effect as of December 31, 2013. |
(2) | Presents the minimum rental payments required under various operating leases for office space and computer hardware. |
(3) | Presents the maximum amounts that would be payable to our executive managing directors and the Ziffs under the tax receivable agreement assuming that we will have sufficient taxable income each year to fully realize the expected tax savings resulting from the purchase by the Och-Ziff Operating Group of Och-Ziff Operating Group A Units with proceeds from the 2007 Offerings, as well as subsequent exchanges as discussed above under the heading “—Liquidity and Capital Resources—Tax Receivable Agreement.” In light of the numerous factors affecting our obligation to make such payments, the timing and amounts of any such actual payments may differ materially from those presented in the table above. |
(4) | As of December 31, 2013, we have paid $4.0 million for an option to purchase a replacement for our corporate aircraft. We have the right to terminate the option any time prior to delivery of the aircraft, which is scheduled for 2015. |
(5) | Represents the obligations of our consolidated CLOs, which have no recourse to the Och-Ziff Operating Group. |
(6) | Represents the expected future interest payments on the notes payable of our consolidated CLOs, assuming no prepayments will be made and debt will be held until its final stated maturity date. For notes with variable interest rates, the amounts presented are based on the LIBOR rate in effect as of December 31, 2013. |
Subsequent Event
Subsequent to December 31, 2013, we entered into a secured multiple draw term loan agreement for up to $59.0 million to finance the purchase of a new corporate aircraft expected to be delivered in the first quarter of 2015. A $16.0 million borrowing was made to fund
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a progress payment due in February 2014, and is not included in the long-term debt amounts presented in the table above. See “—Liquidity and Capital Resources—Debt Obligations—Aircraft Credit Facility” for additional information.
Off-Balance Sheet Arrangements
As of December 31, 2013, we did not have any off-balance sheet arrangements.
Critical Accounting Policies and Estimates
Critical accounting policies are those that require us to make significant judgments, estimates or assumptions that affect amounts reported in our financial statements or the notes thereto. We base our judgments, estimates and assumptions on current facts, historical experience and various other factors that we believe to be reasonable and prudent. Actual results may differ materially from these estimates. See Note 2 to our consolidated financial statements included in this annual report for a description of our accounting policies. Set forth below is a summary of what we believe to be our most critical accounting policies and estimates.
Fair Value of Investments
The valuation of investments held by our funds is the most critical estimate made by management impacting our results. Pursuant to specialized accounting for investment companies under GAAP, investments held by the Och-Ziff funds are carried at their estimated fair values. The valuation of investments held by our funds has a significant impact on our results, as our management fees and incentive income are generally determined based on the fair value of these investments.
GAAP prioritizes the level of market price observability used in measuring assets and liabilities at fair value. Market price observability is impacted by a number of factors, including the type of assets and liabilities and the specific characteristics of the assets and liabilities. Assets and liabilities with readily available, actively quoted prices (Level I) or for which fair value can be measured from actively quoted prices (Level II) generally will have a higher degree of market price observability and lesser degree of judgment used in measuring fair value than those measured using pricing inputs that are unobservable in the market (Level III). See Note 4 to our consolidated financial statements included in this annual report for additional information regarding fair value measurements.
As of December 31, 2013, the absolute values of our funds’ invested assets and liabilities (excluding the notes payable of our CLOs) were classified within the fair value hierarchy as follows: approximately 57% within Level I; approximately 15% within Level II; and approximately 28% within Level III. As of December 31, 2012, the absolute values of our funds’ invested assets and liabilities were classified within the fair value hierarchy as follows: approximately 48% within Level I; approximately 16% within Level II; and approximately 36% within Level III. The percentage of our funds’ assets and liabilities within the fair value hierarchy will fluctuate based on the investments made at any given time and such fluctuations could be significant. A portion of our funds’ Level III assets relate to Special Investments or other investments on which we do not earn any incentive income until such investments are sold or otherwise realized. Upon the sale or realization event of these assets, any realized profits are included in the calculation of incentive income for such year. Accordingly, the estimated fair value of our funds’ Level III assets may not have any relation to the amount of incentive income actually earned with respect to such assets.
Valuation of Investments. Fair value represents the price that would be received to sell an asset or paid to transfer a liability (an exit price) in an orderly transaction between market participants as of the measurement date. The fair value of our funds’ investments is based on observable market prices when available. Such values are generally based on the last sales price. We, as the investment manager of the Och-Ziff funds, determine the fair value of investments that are not actively traded on a recognized securities exchange or otherwise lack a readily ascertainable market value. The methods and procedures to value these investments may include, but are not limited to: (i) performing comparisons with prices of comparable or similar securities; (ii) obtaining valuation-related information from the issuers; (iii) calculating the present value of future cash flows; (iv) assessing other analytical data and information relating to the investment that is an indication of value; (v) obtaining information provided by third parties; and (vi) evaluating financial information provided by the management of these investments. See Note 4 to our consolidated financial statements included in this report for additional information.
Significant judgment and estimation goes into the assumptions that drive our valuation methodologies and procedures for assets that are not actively traded on a recognized securities exchange or otherwise lack a readily ascertainable market value. The actual amounts ultimately realized could differ materially from the values estimated based on the use of these methodologies. Realizations at values significantly lower than the values at which investments have been reflected could result in losses at the fund level and a decline in future management fees and incentive income. Such situations may also negatively impact fund investor perception of our valuation policies and procedures, which could result in redemptions and difficulties in raising additional capital.
We have established an internal control infrastructure over the valuation of financial instruments that includes ongoing independent oversight by our Financial Controls Group and Valuation Committee, as well as periodic audits by our Internal Audit Group. These management control functions are segregated from the trading and investing functions.
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The Valuation Committee is responsible for developing valuation policies to help ensure that all of the funds’ investments reflect fair values, as well as providing oversight of the valuation process. These valuation policies and procedures include, but are not limited to the following: determining the pricing sources used to value specific investment classes; the selection of independent pricing services; the periodic review of due diligence materials of independent pricing services; and the fair value hierarchy coding of the funds’ investments. The Valuation Committee reviews a variety of reports on a monthly basis, which include, but are not limited to the following: summaries of the sources used to determine the value the funds’ investments; summaries of the fair value hierarchy of the funds’ investments; and variance reports that compare the values of investments to independent pricing services. The Valuation Committee is comprised of non-investment professionals, and may obtain input from investment professionals for consideration in carrying out their responsibilities.
The Financial Controls Group is responsible for ensuring compliance with the valuation policies and preparing the monthly valuation reports reviewed by the Valuation Committee. The Financial Controls Group’s other responsibilities include, but are not limited to the following: preparation and distribution of daily profit and loss reports; overseeing the collection and evaluation of counterparty prices, broker-dealer quotations, exchange prices and third party pricing feeds; performing back testing by comparing prices observed in executed transactions to previous day valuations and/or pricing service providers on a weekly and monthly basis; preparing due diligence report reviews on independent pricing services on an annual basis; and assisting the Valuation Committee in developing valuation policies.
The Internal Audit Group employs a risk-based program of audit coverage that is designed to provide an independent assessment of the design and effectiveness of controls over our operations, regulatory compliance, valuation of financial instruments and reporting. Additionally, the Internal Audit Group meets with management periodically to evaluate and provide guidance on the existing risk framework and control environment assessments.
Monthly procedures have been established for Level III investments to compare unobservable inputs to observable inputs for similar positions, review subsequent market activities, perform comparisons of actual versus projected cash flows, and discuss the valuation methodology, including pricing techniques when applicable, with investment professionals. Independent pricing services may be used to corroborate our internal valuations. Investment professionals and members of the Financial Controls Group review a daily profit and loss report, as well as other periodic reports that analyze the profit and loss and related asset class exposure of the funds’ investments.
As of December 31, 2013, the only assets and liabilities carried at fair value in our consolidated balance sheet were the investment holdings of the consolidated Och-Ziff funds and the related debt obligations of our consolidated CLOs. The majority of these assets and liabilities of the consolidated Och-Ziff funds are valued using sources other than observable market data, which are considered to be within Level III of the fair value hierarchy. However, substantially all of these fair value changes are absorbed by the investors of these funds (noncontrolling interests).
The following table presents our net economic exposure to these Level III investments (assets and liabilities excluding notes payable of consolidated CLOs):
| December 31, 2013 | |
| (dollars in thousands) | |
Level III investments (net) of consolidated Och-Ziff funds | $ | 2,918,802 | |
Less: Level III investments (net) for which we do not bear direct economic exposure | | (2,915,079 | ) |
Net Economic Exposure to Level III Investments (net) | $ | 3,723 | |
Impact of Fair Value Measurement on Our Results. A 10% change in the estimate of fair value of the investments held by our funds would generally have a 10% change in management fees in the period subsequent to the change in fair value, as management fees are charged based on the assets under management at the beginning. For certain credit and other funds, there would be no impact as management fees are generally charged based on committed capital during the original investment period and invested capital thereafter. The impact of a 10% change in the estimate of fair value of the investments held by our funds would generally have an immediate 10% impact on our incentive income if the change in fair value continues at the end of the performance measurement period, at which time incentive income is recognized, and assuming no high-water marks in effect. For certain credit and other funds that are not consolidated, there would be no impact, as incentive income is recognized based on realized profits and when no longer subject to clawback.
For additional information regarding the impact that the fair value measurement of assets under management has on our results, please see “Part II—Item 7A. Quantitative and Qualitative Disclosures about Market Risk.”
Variable Interest Entities
The determination of whether or not to consolidate a variable interest entity under GAAP requires a significant amount of judgment concerning the degree of control over an entity by its holders of variable interests. To make these judgments, management has conducted an analysis, on a case-by-case basis, of the relationship of the holders of variable interests to each other, the design of the entity, the expected operations of the entity, which holder of variable interests within a related party group is most “closely associated” to the
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entity and which holder of variable interests is the primary beneficiary required to consolidate the entity. Upon the occurrence of certain events, such as redemptions by all unaffiliated investors in any fund and modifications to fund organizational documents and investment management agreements, management reviews and reconsiders its previous conclusion regarding the status of an entity as a variable interest entity. Additionally, management continually reconsiders whether we are a variable interest entity’s primary beneficiary who would consolidate such entity.
Income Taxes
We use the asset and liability method of accounting for deferred income taxes. Under this method, deferred income tax assets and liabilities are recognized for the future tax consequences attributable to temporary differences between the carrying amounts of existing assets and liabilities and their respective tax bases. A valuation allowance is established when management believes it is more likely than not that a deferred income tax asset will not be realized.
Substantially all of our deferred income tax assets relate to the goodwill and other intangible assets deductible for tax purposes by Och-Ziff Corp that arose in connection with the purchase of Och-Ziff Operating Group A Units from our executive managing directors and the Ziffs with proceeds from the 2007 Offerings, subsequent exchanges of Och-Ziff Operating Group A Units for Class A Shares and subsequent payments to our executive managing directors and the Ziffs made under the tax receivable agreement, in addition to any related net operating loss carryforward. In accordance with relevant provisions of the Internal Revenue Code, we expect to take these goodwill and other intangible deductions over the 15-year period following the 2007 Offerings and the additional 20-year loss carryforward period available to us. Our analysis of whether we expect to have sufficient future taxable income to realize these deductions is based solely on estimates over this period.
Och-Ziff Corp generated taxable income of $198.6 million in 2013 before taking into account deductions related to the amortization of the goodwill and other intangible assets. We determined that we would need to generate taxable income of at least $2.2 billion over the remaining 10-year weighted-average amortization period and the additional 20-year loss carryforward period available to us in order to fully realize the deferred income tax assets. In this regard, Reorganization expenses and certain other expenses are considered permanent book to tax differences, and therefore do not impact taxable income. Accordingly, while we reported annual net losses on a GAAP basis through 2012, we generated income before the amortization of goodwill and other intangible assets on a tax basis over these prior periods. Using the estimates and assumptions discussed below, we expect to generate sufficient taxable income over the remaining amortization and loss carryforward periods available to us in order to fully realize these deferred income tax assets.
To generate $2.2 billion in taxable income over the remaining amortization and loss carryforward periods available to us, we estimated that, based on assets under management of $40.6 billion as of January 1, 2014, we would need to generate a minimum compound annual growth rate in assets under management of less than 1% over the period for which the taxable income estimate relates to fully realize the deferred income tax assets, assuming no performance-related growth, and therefore no incentive income. The assumed nature and amount of this estimated growth rate are not based on historical results or current expectations of future growth; however, the other assumptions underlying the taxable income estimate, such as general maintenance of current expense ratios and cost allocation percentages among the Och-Ziff Operating Group entities, which impact the amount of taxable income flowing through our legal structure, are based on our near-term operating budget. If our actual growth rate in assets under management falls below this minimum threshold for any extended time during the period for which these estimates relate and we do not otherwise experience offsetting growth rates in other periods, we may not generate taxable income sufficient to realize the deferred income tax assets and may need to record a valuation allowance.
Management regularly reviews the model used to generate the estimates, including the underlying assumptions. If it determines that a valuation allowance is required for any reason, the amount would be determined based on the relevant circumstances at that time. To the extent we record a valuation allowance against our deferred income tax assets related to the goodwill and other intangible assets, we would record a corresponding decrease in the liability to our executive managing directors and the Ziffs under the tax receivable agreement equal to approximately 78% of such amount; therefore, our net income (loss) allocated to Class A Shareholders would only be impacted by 22% of any valuation allowance recorded against the deferred income tax assets.
Actual taxable income may differ from the estimate described above, which was prepared solely for determining whether we currently expect to have sufficient future taxable income to realize the deferred income tax assets. Furthermore, actual or estimated future taxable income may be materially impacted by significant changes in assets under management, whether as a result of fund investment performance or fund investor contributions or redemptions, significant changes to the assumptions underlying our estimates, future changes in income tax law, state income tax apportionment or other factors.
As of December 31, 2013, we had $79.5 million of net operating losses available to offset future taxable income for federal income tax purposes that will expire between 2029 and 2032, and $182.7 million of net operating losses available to offset future taxable income for state income tax purposes and $163.4 million for local income tax purposes that will expire between 2028 and 2032. Based on the analysis set forth above, as of December 31, 2013, we have determined that it is not necessary to record a valuation allowance with respect to our deferred income tax assets related to the goodwill and other intangible assets deductible for tax purposes, and any related net
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operating loss carryforward. However, we have determined that we may not realize certain deferred state income tax credits. Accordingly, a valuation allowance for $9.3 million has been established for these credits.
Impact of Recently Adopted Accounting Pronouncements on Recent and Future Trends
None of the changes to GAAP that went into effect during 2013 are expected to have an impact on our future trends.
Expected Impact of Future Adoption of New Accounting Pronouncements on Future Trends
None of the changes to GAAP that are not yet effective are expected to have an impact on our future trends.
Economic Income Reconciliations
As discussed above, certain amounts presented below have been restated and reclassified. See “—Overview—Restatements and Reclassifications” for additional information. These adjustments did not have any impact on our Economic Income as previously reported and presented below.
Economic Income
The following tables present the reconciliations of Economic Income to our GAAP net income (loss) allocated to Class A Shareholders for the periods presented in this MD&A and in “Item 6. Selected Financial Data” of this annual report:
| Year Ended December 31, 2013 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net income allocated to Class A Shareholders—GAAP | $ | 260,612 | | | $ | 1,155 | | | $ | 261,767 | |
Net income allocated to the Och-Ziff Operating Group A Units | | 616,843 | | | | - | | | | 616,843 | |
Equity-based compensation, net of RSUs settled in cash | | 120,125 | | | | - | | | | 120,125 | |
Income taxes | | 95,687 | | | | - | | | | 95,687 | |
Incentive income allocations from consolidated funds subject to clawback | | (23,656 | ) | | | (16,481 | ) | | | (40,137 | ) |
Allocations to Och-Ziff Operating Group D Units | | 19,954 | | | | - | | | | 19,954 | |
Reorganization expenses | | 16,087 | | | | - | | | | 16,087 | |
Changes in tax receivable agreement liability | | (8,514 | ) | | | - | | | | (8,514 | ) |
Depreciation and amortization | | 7,503 | | | | 748 | | | | 8,251 | |
Adjustment for expenses related to compensation and profit-sharing arrangements based on fund investment performance | | - | | | | 7,854 | | | | 7,854 | |
Other adjustments | | (405 | ) | | | 1,184 | | | | 779 | |
Economic Income—Non-GAAP | $ | 1,104,236 | | | $ | (5,540 | ) | | $ | 1,098,696 | |
| Year Ended December 31, 2012 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net loss allocated to Class A Shareholders—GAAP | $ | (336,788 | ) | | $ | 26,065 | | | $ | (310,723 | ) |
Reorganization expenses | | 1,396,882 | | | | - | | | | 1,396,882 | |
Net loss allocated to the Och-Ziff Operating Group A Units | | (538,055 | ) | | | - | | | | (538,055 | ) |
Equity-based compensation | | 85,927 | | | | 79 | | | | 86,006 | |
Income taxes | | 82,852 | | | | 9 | | | | 82,861 | |
Incentive income allocations from consolidated funds subject to clawback | | (6 | ) | | | (36,412 | ) | | | (36,418 | ) |
Changes in tax receivable agreement liability | | (13,428 | ) | | | - | | | | (13,428 | ) |
Depreciation and amortization | | 8,611 | | | | 751 | | | | 9,362 | |
Allocations to Och-Ziff Operating Group D Units | | 9,296 | | | | - | | | | 9,296 | |
Other adjustments | | (100 | ) | | | 8,431 | | | | 8,331 | |
Economic Income—Non-GAAP | $ | 695,191 | | | $ | (1,077 | ) | | $ | 694,114 | |
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| Year Ended December 31, 2011 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net income (loss) allocated to Class A Shareholders—GAAP | $ | (419,469 | ) | | $ | 479 | | | $ | (418,990 | ) |
Reorganization expenses | | 1,614,363 | | | | - | | | | 1,614,363 | |
Net loss allocated to the Och-Ziff Operating Group A Units | | (1,088,514 | ) | | | - | | | | (1,088,514 | ) |
Equity-based compensation | | 128,785 | | | | 131 | | | | 128,916 | |
Income taxes | | 59,793 | | | | (212 | ) | | | 59,581 | |
Changes in tax receivable agreement liability | | (21,768 | ) | | | - | | | | (21,768 | ) |
Net gains on early retirement of debt | | (12,494 | ) | | | - | | | | (12,494 | ) |
Depreciation and amortization | | 8,928 | | | | 748 | | | | 9,676 | |
Allocations to Och-Ziff Operating Group D Units | | 2,433 | | | | - | | | | 2,433 | |
Adjustment for expenses related to compensation and profit-sharing arrangements based on fund investment performance | | 600 | | | | - | | | | 600 | |
Other adjustments | | 279 | | | | (310 | ) | | | (31 | ) |
Economic Income—Non-GAAP | $ | 272,936 | | | $ | 836 | | | $ | 273,772 | |
| Year Ended December 31, 2010 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net loss allocated to Class A Shareholders—GAAP | $ | (264,274 | ) | | $ | (30,139 | ) | | $ | (294,413 | ) |
Reorganization expenses | | 1,626,988 | | | | - | | | | 1,626,988 | |
Net loss allocated to the Och-Ziff Operating Group A Units | | (950,209 | ) | | | - | | | | (950,209 | ) |
Equity-based compensation | | 115,184 | | | | 13,553 | | | | 128,737 | |
Income taxes | | 39,023 | | | | 2,055 | | | | 41,078 | |
Depreciation and amortization | | 8,329 | | | | 749 | | | | 9,078 | |
Allocations to Och-Ziff Operating Group D Units | | 5,718 | | | | - | | | | 5,718 | |
Adjustment for expenses related to compensation and profit-sharing arrangements based on fund investment performance | | 1,500 | | | | - | | | | 1,500 | |
Changes in tax receivable agreement liability | | (1,368 | ) | | | - | | | | (1,368 | ) |
Other adjustments | | 5 | | | | (356 | ) | | | (351 | ) |
Economic Income—Non-GAAP | $ | 580,896 | | | $ | (14,138 | ) | | $ | 566,758 | |
| Year Ended December 31, 2009 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net loss allocated to Class A Shareholders—GAAP | $ | (254,014 | ) | | $ | (43,415 | ) | | $ | (297,429 | ) |
Reorganization expenses | | 1,704,753 | | | | - | | | | 1,704,753 | |
Net loss allocated to the Och-Ziff Operating Group A Units | | (1,127,729 | ) | | | - | | | | (1,127,729 | ) |
Equity-based compensation | | 100,705 | | | | 21,756 | | | | 122,461 | |
Net earnings on deferred balances | | (54,138 | ) | | | - | | | | (54,138 | ) |
Income taxes | | 36,846 | | | | 857 | | | | 37,703 | |
Allocation of deferred balances and related taxes to Mr. Och | | 27,589 | | | | - | | | | 27,589 | |
Net gains on early retirement of debt | | (21,797 | ) | | | - | | | | (21,797 | ) |
Changes in tax receivable agreement liability | | (19,749 | ) | | | - | | | | (19,749 | ) |
Allocation of deferred balances and related taxes to non-equity interests | | 19,575 | | | | - | | | | 19,575 | |
Depreciation and amortization | | 7,792 | | | | 749 | | | | 8,541 | |
Adjustment for expenses related to compensation and profit-sharing arrangements based on fund investment performance | | 6,201 | | | | - | | | | 6,201 | |
Allocations to Och-Ziff Operating Group D Units | | 1,188 | | | | - | | | | 1,188 | |
Other adjustments | | (3,241 | ) | | | (249 | ) | | | (3,490 | ) |
Economic Income—Non-GAAP | $ | 423,981 | | | $ | (20,302 | ) | | $ | 403,679 | |
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Economic Income Revenues
The following tables present the reconciliations of Economic Income revenues and its components to the respective GAAP measure for the periods presented in this MD&A and in “Item 6. Selected Financial Data” of this annual report:
| Year Ended December 31, 2013 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Management fees—GAAP | $ | 545,533 | | | $ | 10,894 | | | $ | 556,427 | |
Adjustment to management fees(1) | | (10,668 | ) | | | - | | | | (10,668 | ) |
Management Fees—Economic Income Basis—Non-GAAP | | 534,865 | | | | 10,894 | | | | 545,759 | |
| | | | | | | | | | | |
Incentive income—GAAP | | 1,076,547 | | | | - | | | | 1,076,547 | |
Adjustment to incentive income(2) | | 6,031 | | | | - | | | | 6,031 | |
Incentive Income—Economic Income Basis—Non-GAAP | | 1,082,578 | | | | - | | | | 1,082,578 | |
Other revenues(3) | | 2,130 | | | | 20 | | | | 2,150 | |
Total Revenues—Economic Income Basis—Non-GAAP | $ | 1,619,573 | | | $ | 10,914 | | | $ | 1,630,487 | |
| Year Ended December 31, 2012 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Management fees—GAAP | $ | 493,779 | | | $ | 10,616 | | | $ | 504,395 | |
Adjustment to management fees(1) | | (14,400 | ) | | | - | | | | (14,400 | ) |
Management Fees—Economic Income Basis—Non-GAAP | | 479,379 | | | | 10,616 | | | | 489,995 | |
| | | | | | | | | | | |
Incentive income—GAAP | | 595,727 | | | | - | | | | 595,727 | |
Adjustment to incentive income(2) | | 4,707 | | | | - | | | | 4,707 | |
Incentive Income—Economic Income Basis—Non-GAAP | | 600,434 | | | | - | | | | 600,434 | |
Other revenues(3) | | 930 | | | | 108 | | | | 1,038 | |
Total Revenues—Economic Income Basis—Non-GAAP | $ | 1,080,743 | | | $ | 10,724 | | | $ | 1,091,467 | |
| Year Ended December 31, 2011 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Management fees—GAAP | $ | 486,215 | | | $ | 14,642 | | | $ | 500,857 | |
Adjustment to management fees(1) | | (14,665 | ) | | | - | | | | (14,665 | ) |
Management Fees—Economic Income Basis—Non-GAAP | | 471,550 | | | | 14,642 | | | | 486,192 | |
Incentive income(3) | | 65,026 | | | | - | | | | 65,026 | |
Other revenues(3) | | 1,729 | | | | 529 | | | | 2,258 | |
Total Revenues—Economic Income Basis—Non-GAAP | $ | 538,305 | | | $ | 15,171 | | | $ | 553,476 | |
| Year Ended December 31, 2010 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Management fees—GAAP | $ | 431,999 | | | $ | 5,817 | | | $ | 437,816 | |
Adjustment to management fees(1) | | (9,059 | ) | | | - | | | | (9,059 | ) |
Management Fees—Economic Income Basis—Non-GAAP | | 422,940 | | | | 5,817 | | | | 428,757 | |
Incentive income(3) | | 446,228 | | | | - | | | | 446,228 | |
Other revenues(3) | | 1,290 | | | | 684 | | | | 1,974 | |
Total Revenues—Economic Income Basis—Non-GAAP | $ | 870,458 | | | $ | 6,501 | | | $ | 876,959 | |
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| Year Ended December 31, 2009 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Management fees—GAAP | $ | 359,979 | | | $ | 4,926 | | | $ | 364,905 | |
Adjustment to management fees(1) | | (2,462 | ) | | | 19 | | | | (2,443 | ) |
Management Fees—Economic Income Basis—Non-GAAP | | 357,517 | | | | 4,945 | | | | 362,462 | |
Incentive income(3) | | 348,915 | | | | - | | | | 348,915 | |
Other revenues(3) | | 1,447 | | | | 292 | | | | 1,739 | |
Total Revenues—Economic Income Basis—Non-GAAP | $ | 707,879 | | | $ | 5,237 | | | $ | 713,116 | |
(1) | Adjustment to present management fees net of recurring placement and related service fees, as management considers these fees a reduction in management fees, not an expense. The impact of eliminations related to the consolidated Och-Ziff funds is also removed. |
(2) | Adjustment to exclude the impact of eliminations related to the consolidated Och-Ziff funds. |
(3) | These items are presented on a GAAP basis. Accordingly, no adjustments to or reconciliations of these items are presented. |
Economic Income Expenses
The following tables present the reconciliations of Economic Income expenses and its components to the respective GAAP measure for the periods presented in this MD&A:
| Year Ended December 31, 2013 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Compensation and benefits—GAAP | $ | 533,347 | | | $ | 20,722 | | | $ | 554,069 | |
Adjustment to compensation and benefits(1) | | (140,079 | ) | | | (7,854 | ) | | | (147,933 | ) |
Compensation and Benefits—Economic Income Basis—Non-GAAP | $ | 393,268 | | | $ | 12,868 | | | $ | 406,136 | |
| | | | | | | | | | | |
Interest expense and general, administrative and other expenses—GAAP | $ | 153,896 | | | $ | 2,989 | | | $ | 156,885 | |
Adjustment to interest expense and general, administrative and other expenses(2) | | (30,282 | ) | | | (749 | ) | | | (31,031 | ) |
Non-Compensation Expenses—Economic Income Basis—Non-GAAP | $ | 123,614 | | | $ | 2,240 | | | $ | 125,854 | |
| Year Ended December 31, 2012 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Compensation and benefits—GAAP | $ | 378,878 | | | $ | 10,275 | | | $ | 389,153 | |
Adjustment to compensation and benefits(1) | | (95,223 | ) | | | (79 | ) | | | (95,302 | ) |
Compensation and Benefits—Economic Income Basis—Non-GAAP | $ | 283,655 | | | $ | 10,196 | | | $ | 293,851 | |
| | | | | | | | | | | |
Interest expense and general, administrative and other expenses—GAAP | $ | 120,776 | | | $ | 2,159 | | | $ | 122,935 | |
Adjustment to interest expense and general, administrative and other expenses(2) | | (18,563 | ) | | | (751 | ) | | | (19,314 | ) |
Non-Compensation Expenses—Economic Income Basis—Non-GAAP | $ | 102,213 | | | $ | 1,408 | | | $ | 103,621 | |
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| Year Ended December 31, 2011 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Compensation and benefits—GAAP | $ | 315,327 | | | $ | 9,681 | | | $ | 325,008 | |
Adjustment to compensation and benefits(1) | | (131,752 | ) | | | (131 | ) | | | (131,883 | ) |
Compensation and Benefits—Economic Income Basis—Non-GAAP | $ | 183,575 | | | $ | 9,550 | | | $ | 193,125 | |
| | | | | | | | | | | |
Interest expense and general, administrative and other expenses—GAAP | $ | 87,897 | | | $ | 4,322 | | | $ | 92,219 | |
Adjustment to interest expense and general, administrative and other expenses(2) | | (5,634 | ) | | | (748 | ) | | | (6,382 | ) |
Non-Compensation Expenses—Economic Income Basis—Non-GAAP | $ | 82,263 | | | $ | 3,574 | | | $ | 85,837 | |
(1) | Adjustment to exclude equity-based compensation, as management does not consider these non-cash expenses to be reflective of our operating performance. However, the fair value of RSUs that are settled in cash to employees or executive managing directors is included as an expense at the time of settlement. Further, expenses related to compensation and profit-sharing arrangements based on fund investment performance are recognized at the end of the relevant performance measurement period, as management reviews the total compensation expense related to these arrangements in relation to any incentive income earned by the respective fund. Distributions to the Och-Ziff Operating Group D Units are also excluded, as management reviews operating performance at the Och-Ziff Operating Group level, where substantially all of our operations are performed, prior to making any income allocations. |
(2) | Adjustment to exclude depreciation, amortization and changes in the tax receivable agreement liability, as management does not consider these items to be reflective of our operating performance. Additionally, recurring placement and related service fees are excluded, as management considers these fees a reduction in management fees, not an expense. |
Other Economic Income Items
The following tables present the reconciliations of other items included in Economic Income to the respective GAAP measure for the periods presented in this MD&A:
| Year Ended December 31, 2013 | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net gains on investments in Och-Ziff funds and joint ventures—GAAP | $ | 1,966 | | | $ | - | | | $ | 1,966 | |
Adjustment to net gains on investments in Och-Ziff funds and joint ventures(1) | | (433 | ) | | | - | | | | (433 | ) |
Net Gains on Joint Ventures—GAAP | $ | 1,533 | | | $ | - | | | $ | 1,533 | |
| | | | | | | | | | | |
Net income allocated to noncontrolling interests—GAAP | $ | 762,945 | | | $ | 222,878 | | | $ | 985,823 | |
Adjustment to net income allocated to noncontrolling interests(2) | | (762,957 | ) | | | (221,532 | ) | | | (984,489 | ) |
Net Income (Loss) Allocated to Noncontrolling Interests—Economic Income Basis—Non-GAAP | $ | (12 | ) | | $ | 1,346 | | | $ | 1,334 | |
| Year Ended December 31, 2012 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net gains (losses) on investments in Och-Ziff funds and joint ventures—GAAP | $ | 385 | | | $ | (111 | ) | | $ | 274 | |
Adjustment to net gains (losses) on investments in Och-Ziff funds and joint ventures(1) | | (75 | ) | | | - | | | | (75 | ) |
Net Gains (Losses) on Joint Ventures—GAAP | $ | 310 | | | $ | (111 | ) | | $ | 199 | |
| | | | | | | | | | | |
Net income (loss) allocated to noncontrolling interests—GAAP | $ | (413,299 | ) | | $ | 151,099 | | | $ | (262,200 | ) |
Adjustment to net income (loss) allocated to noncontrolling interests(2) | | 413,293 | | | | (151,013 | ) | | | 262,280 | |
Net Income (Loss) Allocated to Noncontrolling Interests—Economic Income Basis—Non-GAAP | $ | (6 | ) | | $ | 86 | | | $ | 80 | |
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| Year Ended December 31, 2011 (Restated) | |
| Och-Ziff Funds Segment | | | Other Operations | | | Total Company | |
| (dollars in thousands) | |
Net gains on investments in Och-Ziff funds and joint ventures—GAAP | $ | 509 | | | $ | 123 | | | $ | 632 | |
Adjustment to net gains on investments in Och-Ziff funds and joint ventures(1) | | (40 | ) | | | - | | | | (40 | ) |
Net Gains on Joint Ventures—GAAP | $ | 469 | | | $ | 123 | | | $ | 592 | |
| | | | | | | | | | | |
Net income (loss) allocated to noncontrolling interests—GAAP | $ | (1,092,552 | ) | | $ | 47,854 | | | $ | (1,044,698 | ) |
Adjustment to net income (loss) allocated to noncontrolling interests(2) | | 1,092,552 | | | | (46,520 | ) | | | 1,046,032 | |
Net Income Allocated to Noncontrolling Interests—Economic Income Basis—Non-GAAP | $ | - | | | $ | 1,334 | | | $ | 1,334 | |
(1) | Adjustment to exclude net gains (losses) on investments in Och-Ziff funds, as management does not consider these gains (losses) to be reflective of our operating performance. |
(2) | Adjustment to exclude amounts allocated to our executive managing directors and the Ziffs on their interests in the Och-Ziff Operating Group, as management reviews operating performance at the Och-Ziff Operating Group level. We conduct substantially all of our activities through the Och-Ziff Operating Group. Additionally, the impact of the consolidated Och-Ziff funds, including the allocation of earnings (losses) to investors in those funds, is also removed. |
Item 7A. | Quantitative and Qualitative Disclosures about Market Risk |
Our predominant exposure to market risk is related to our role as general partner or investment manager for the Och-Ziff funds, and the sensitivities to movements in the fair value of their investments that may adversely affect our management fees and incentive income.
Fair value of the financial assets and liabilities of the Och-Ziff funds may fluctuate in response to changes in the value of investments, foreign currency exchange rates, commodity prices and interest rates. The fair value changes in the assets and liabilities of the Och-Ziff funds affect the management fees and incentive income we may earn from the funds.
With regards to the consolidated Och-Ziff funds, the net effect of these fair value changes primarily impacts the net gains (losses) of consolidated Och-Ziff funds in our consolidated statements of comprehensive income (loss); however, substantially all of these fair value changes are absorbed by the investors of these funds (noncontrolling interests). We may also be entitled to a portion of these earnings through our incentive income allocation as general partner of these funds.
Impact on Management Fees
Management fees for our hedge funds are generally based on the net asset value of those funds. Accordingly, management fees will generally change in proportion to changes in the fair value of investments held by our funds. Management fees for our real estate funds and certain other funds are generally based on committed capital during the original investment period and invested capital thereafter; therefore, management fees are not impacted by changes in the fair value of investments held by those funds.
Impact on Incentive Income
Our incentive income is generally based on a percentage of annual profits generated by our funds, which is impacted by global market conditions and other factors. Major factors that influence the degree of impact include how the investments held by our funds are impacted by changes in the market and the extent to which any high-water marks impact our ability to earn incentive income. Consequently, incentive income cannot be readily predicted or estimated.
Market Risk
The amount of our assets under management is primarily based on the net asset value of each of our hedge funds and committed or invested capital for our real estate and certain other funds. A 10% change in the fair value of the net assets held by our funds as of December 31, 2013 and 2012, would have resulted in a change of approximately $3.6 billion and $2.9 billion, respectively, in our assets under management.
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A 10% change in the fair value of the net assets held by our funds as of January 1, 2014 (the date management fees are calculated for the first quarter of 2014) would impact management fees charged on that day by approximately $14.0 million. A 10% change in the fair value of the net assets held by our funds as of January 1, 2013, would have impacted management fees charged on that day by approximately $11.3 million.
A 10% change in the fair value of the net assets held by our funds as of the end of any year (excluding unrealized gains and losses in Special Investments or other investments on which we do not earn any incentive income until such investments are sold or otherwise realized), could significantly affect our incentive income by a corresponding amount, as incentive income is generally based on a percentage of annual profits generated by our funds. We do not earn incentive income on unrealized gains attributable to Special Investments and certain other investments, and therefore a change in the fair value of those investments would have no effect on incentive income.
Exchange Rate Risk
Our funds hold investments denominated in non-U.S. dollar currencies, which may be affected by movements in the rate of exchange between the U.S. dollar and foreign currencies. We estimate that as of December 31, 2013 and 2012, a 10% weakening or strengthening of the U.S. dollar against all or any combination of currencies to which our funds have exposure to exchange rates would not have a material effect on our revenues, net income (loss) allocated to Class A Shareholders or Economic Income.
Interest Rate Risk
Our Delayed Draw Term Loan bears interest at rates indexed to LIBOR. We estimate that as of December 31, 2013 and 2012, a 10% increase or decrease in LIBOR would not have a material effect on our annual interest expense, net income (loss) allocated to Class A Shareholders or Economic Income.
Our funds have financing arrangements and hold credit instruments that accrue interest at variable rates. Interest rate changes may therefore impact the amount of interest payments, future earnings and cash flows. In the event LIBOR, and rates directly or indirectly tied to LIBOR, were to increase by 10% over LIBOR as of December 31, 2013 and 2012, based on our funds’ debt investments and obligations as of such date, we estimate that the net effect on our revenues, net income (loss) allocated to Class A Shareholders or Economic Income would not have been material. A tightening of credit and an increase in prevailing interest rates could make it more difficult for us to raise capital and sustain the growth rate of the funds.
Credit Risk
Credit risk is the risk that counterparties or debt issuers may fail to fulfill their obligations or that the collateral value may become inadequate to cover our exposure. We manage credit risk by monitoring the credit exposure to and the creditworthiness of counterparties, requiring additional collateral where appropriate.
Item 8. | Financial Statements and Supplementary Data |
Our financial statements, the related notes thereto and the report of independent auditors are included in this annual report beginning on page F-1.
Item 9. | Changes in and Disagreements with Accountants on Accounting and Financial Disclosure |
There were no changes in and disagreements with accountants on accounting and financial disclosure.
Item 9A. | Controls and Procedures |
Effectiveness of Disclosure Controls and Procedures
We maintain disclosure controls and procedures, as defined in Rule 13a-15(e) of the Exchange Act, that are designed to ensure that information required to be disclosed in our reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow for timely decisions regarding required disclosure. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.
As of December 31, 2013, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures. Based on the foregoing, our Chief Executive Officer and Chief Financial Officer concluded that, because of the
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material weakness in our internal control over financial reporting related to our determination not to consolidate our CLOs, our disclosure controls and procedures were not effective and were not operating at a reasonable assurance level as of December 31, 2013.
In addition, in our Form 10-K for the fiscal year ended December 31, 2012, we stated that our Chief Executive Officer and Chief Financial Officer concluded that our disclosure controls and procedures were effective and were operating at a reasonable assurance level as of the end of that fiscal year. In connection with the filing of this annual report and with the restatement discussed in the notes to the consolidated financial statements included in this report, we re-evaluated, under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, the effectiveness of the design and operation of our disclosure controls and procedures as of December 31, 2012, and concluded that, because of the material weakness in our internal control over financial reporting related to our determination not to consolidate our CLOs, our disclosure controls and procedures were not effective and were not operating at a reasonable assurance level as of December 31, 2012.
Notwithstanding the material weakness described below, our management, based upon the substantive work performed during the restatement process, has concluded that our consolidated financial statements included in this annual report are fairly stated in all material respects in accordance with GAAP.
Inherent Limitations on Effectiveness of Controls
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls or our internal control over financial reporting will prevent or detect all error and all fraud. A control system, no matter how well designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. The design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Further, because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to error or fraud will not occur or that all control issues and instances of fraud, if any, have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty and that breakdowns can occur because of simple error or mistake. Controls can also be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the controls.
The design of any system of controls is based in part on certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions. Projections of any evaluation of the effectiveness of controls to future periods are subject to risks. Over time, controls may become inadequate because of changes in conditions or deterioration in the degree of compliance with policies or procedures.
Management’s Annual Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes those policies and procedures that (i) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets, (ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors, and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the financial statements.
Management assessed our internal control over financial reporting as of December 31, 2013. Management based its assessment on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 1992. Management’s assessment included evaluation of elements such as the design and operating effectiveness of key financial reporting controls, process documentation, accounting policies and our overall control environment.
In connection with our assessment of internal control over financial reporting, we identified a material weakness related to the financial reporting described below. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Company’s annual or interim financial statements will not be prevented or detected on a timely basis.
The material weakness related to our determination not to consolidate our CLOs. Specifically, we did not have controls designed to consider the Company’s rights to receive benefits from CLOs it manages that potentially could be significant to the CLO, as the Company has the power to direct the activities of the CLOs. To correct this error, we made material adjustments to our previously issued annual and interim financial statements from the third quarter of 2012 through the third quarter of 2013. Those adjustments consist of an increase in the assets and liabilities of consolidated Och-Ziff funds in the consolidated balance sheets, as well as an increase in the income, expenses and net gains (losses) of consolidated Och-Ziff funds in the consolidated statements of comprehensive income (loss), for each respective period.
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Based on our assessment and as a result of the material weakness described above, management has concluded that our internal control over financial reporting was not effective as of December 31, 2013.
In addition, in our Form 10-K for the fiscal year ended December 31, 2012, we stated that our management concluded that our internal control over financial reporting was effective as of the end of that fiscal year. In connection with the filing of this annual report and with the restatement discussed in the notes to the consolidated financial statements included in this report, we re-assessed the effectiveness of our internal control over financial reporting as of December 31, 2012, based on the criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 1992. Based on our re-assessment, management has concluded that, because of the material weakness described above, our internal control over financial reporting was not effective as of December 31, 2012.
We reviewed the results of management’s assessment and re-assessment with the Audit Committee of our Board of Directors.
Our independent registered public accounting firm, Ernst & Young LLP, independently assessed the effectiveness of the Company’s internal control over financial reporting. Ernst & Young LLP has audited our financial statements included in this annual report and issued an attestation report on the effectiveness of our internal control over financial reporting as of December 31, 2013, which is set forth on the following page.
Management’s Remediation Measures
To address the material weakness described above, as of the date of this annual report, new and enhanced controls have been designed and are being implemented to properly address questions regarding the application of GAAP that require the Company to exercise a high degree of judgment that involves a high risk of misstatement. Management will dedicate significant resources to ensuring that we take proper steps to remediate and monitor our response to the material weakness in our internal control over financial reporting and our disclosure controls and procedures. These controls include providing our in-house accounting personnel with additional research and subject matter training to ensure the correct application of accounting guidance to significant interpretive questions.
We believe the actions described above will be sufficient to remediate the identified material weakness and strengthen our internal control over financial reporting. We will continue to monitor the operation of these controls and may implement further enhanced controls over fund consolidation policies as appropriate.
Changes in Internal Control over Financial Reporting
We have begun the implementation of the remedial actions described above. However, there were no changes in our internal controls over financial reporting that occurred during the fiscal quarter ended December 31, 2013 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
Item 9B. | Other Information |
None.
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Report of Independent Registered Public Accounting Firm on Effectiveness
of Internal Control over Financial Reporting
To the Board of Directors and Shareholders of Och-Ziff Capital Management Group LLC
We have audited Och-Ziff Capital Management Group LLC’s internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (1992 Framework) (the COSO criteria). Och-Ziff Capital Management Group LLC’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the Company’s annual or interim financial statements will not be prevented or detected on a timely basis. The following material weakness has been identified and included in management’s assessment. The Company did not have controls designed to consider the Company’s rights to receive benefits from CLOs it manages that potentially could be significant to the CLO, as the Company has the power to direct the activities of the CLOs. We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Och-Ziff Capital Management Group LLC as of December 31, 2013 and 2012, and the related consolidated statements of comprehensive income (loss), changes in shareholders’ equity, and cash flows for each of the three years in the period ended December 31, 2013. This material weakness was considered in determining the nature, timing and extent of audit tests applied in our audit of those consolidated financial statements, and this report does not affect our report dated March 18, 2014, which expressed an unqualified opinion on those financial statements.
In our opinion, because of the effect of the material weakness described above on the achievement of the objectives of the control criteria, Och-Ziff Capital Management Group LLC has not maintained effective internal control over financial reporting as of December 31, 2013, based on the COSO criteria.
/s/ Ernst & Young LLP
New York, New York
March 18, 2014
91
PART III
The information required to be disclosed in this Part III will be included in the definitive proxy statement for our 2014 annual meeting of shareholders, which we refer to as the “Proxy Statement,” and is incorporated into this Part III by reference as indicated below.
Item 10. | Directors, Executive Officers and Corporate Governance |
The information required by Item 10 will be included in the Proxy Statement under the headings “Proposal No. 1 Election of Class I Directors,” “Ownership of Securities—Section 16(a) Beneficial Ownership Reporting Compliance” and “Corporate Governance—Committees of the Board—Audit Committee” and is incorporated herein by reference.
Pursuant to Item 401(b) of Regulation S-K, the information required under this Item 10 pertaining to our executive officers is reported in “Item 1. Business—Our Executive Officers.”
We have adopted a Code of Business Conduct and Ethics applicable to all our directors, officers and employees. Our Code of Business Conduct and Ethics is posted in the “Class A Shareholders” section of our website (www.ozcap.com). We will provide printed copies of our code free of charge on written request to us at Och-Ziff Capital Management Group LLC, 9 West 57th Street, New York, New York 10019, Attention: Office of the Secretary. We intend to disclose any amendments to, or waivers from, provisions of our code that applies to our principal executive officer, principal financial officer, principal accounting officer or controller, or any person performing in similar functions, on our website promptly following the date of such amendment or waiver.
Item 11. | Executive Compensation |
The information required by Item 11 will be included in the Proxy Statement under the heading “Executive and Director Compensation” and is incorporated herein by reference.
The “Compensation Committee Report” contained in our Proxy Statement shall not be deemed “soliciting material” or “filed” with the SEC or otherwise subject to the liabilities of Section 18 of the Exchange Act, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except to the extent we specifically request that such information be treated as soliciting material or specifically incorporate such information by reference into a document filed under the Securities Act or the Exchange Act.
Item 12. | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
The information required by Item 12 will be included in the Proxy Statement under the headings “Ownership of Securities—Security Ownership of Certain Beneficial Owners and Management” and “Executive and Director Compensation—Equity Compensation Plans” and is incorporated herein by reference.
Item 13. | Certain Relationships and Related Transactions, and Director Independence |
The information required by Item 13 will be included in the Proxy Statement under the headings “Corporate Governance—Director Independence” and “Certain Matters and Related Person Transactions” and is incorporated herein by reference.
Item 14. | Principal Accountant Fees and Services |
The information required by Item 14 will be included in the sections of the Proxy Statement entitled “Principal Accountant Fees and Services” and “Pre-Approval of Audit and Permissible Non-Audit Services of Independent Registered Public Accounting Firm” under the heading “Ratification of the Appointment of Independent Registered Public Accounting Firm” and is incorporated herein by reference.
92
PART IV
Item 15. | Exhibits and Financial Statement Schedules |
1. | The financial statements included in this annual report are listed on page F-1. |
2. | Financial Statement Schedules: |
None.
3. | Exhibits included or incorporated by reference herein: |
See Exhibit Index below.
93
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
Dated: March 18, 2014
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC |
By: | | /s/ Joel M. Frank |
| | Joel M. Frank |
| | Chief Financial Officer, Senior Chief Operating Officer and Executive Managing Director |
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
Signature | | Title | | Date |
| | |
/s/ Daniel S. Och | | Chief Executive Officer, Executive Managing Director, Chairman of the Board of Directors (Principal Executive Officer) | | March 18, 2014 |
Daniel S. Och | | | |
| | |
/s/ Joel M. Frank | | Chief Financial Officer, Senior Chief Operating Officer, Executive Managing Director, Director (Principal Financial Officer and Principal Accounting Officer) | | March 18, 2014 |
Joel M. Frank | | | |
| | |
/s/ David Windreich | | Executive Managing Director and Director | | March 18, 2014 |
David Windreich | | | | |
| | |
/s/ Allan S. Bufferd | | Director | | March 18, 2014 |
Allan S. Bufferd | | | | |
| | |
/s/ J. Barry Griswell | | Director | | March 18, 2014 |
J. Barry Griswell | | | | |
| | |
/s/ Jerome P. Kenney | | Director | | March 18, 2014 |
Jerome P. Kenney | | | | |
| | |
/s/ Georganne C. Proctor | | Director | | March 18, 2014 |
Georganne C. Proctor | | | | |
94
Exhibit Index
Exhibit
No. | | Description |
| |
3.1 | | Certificate of Formation of Och-Ziff Capital Management Group LLC, dated as of June 6, 2007, incorporated herein by reference to Exhibit 3.1 to Amendment No. 3 to our Registration Statement on Form S-1, filed October 12, 2007 (File No. 333-144256). |
| |
3.2 | | Second Amended and Restated Limited Liability Company Agreement of Och-Ziff Capital Management Group LLC, dated as of November 13, 2007, incorporated herein by reference to Exhibit 3.2 of our Annual Report on Form 10-K for the year ended December 31, 2007, filed March 26, 2008. |
| |
4.1 | | Specimen of Class A Specimen Share Certificate (included in Exhibit 3.2). |
| |
4.2 | | Class B Shareholders Agreement by and among Och-Ziff Capital Management Group LLC and the Class B Shareholders, dated as of November 13, 2007, incorporated herein by reference to Exhibit 4.2 of our Annual Report on Form 10-K for the year ended December 31, 2007, filed on March 26, 2008. |
| |
4.3 | | First Amended and Restated Registration Rights Agreement by and among Och-Ziff Capital Management Group LLC and the Och-Ziff Limited Partners, dated as of August 1, 2012, incorporated herein by reference to Exhibit 10.2 of our Quarterly Report on Form 10-Q for the period ended June 30, 2012, filed on August 2, 2012. |
| |
4.4 | | Registration Rights Agreement by and among Och-Ziff Capital Management Group LLC and DIC Sahir Limited, dated as of November 19, 2007, incorporated herein by reference to Exhibit 4.4 of our Annual Report on Form 10-K for the year ended December 31, 2007, filed on March 26, 2008. |
| |
10.1 | | Form of Indemnification Agreement, incorporated herein by reference to Exhibit 10.2 to Amendment No. 4 to our Registration Statement on Form S-1, filed on October 17, 2007 (File No. 333-144256). |
| |
10.2 | | Amended and Restated Tax Receivable Agreement by and among inter alia Och-Ziff Capital Management Group LLC, Och-Ziff Holding Corp., Och-Ziff Holding LLC, OZ Management LP, OZ Advisors LP, and OZ Advisors II LP, dated as of January 12, 2009, incorporated herein by reference to Exhibit 10.3 of our Annual Report on Form 10-K for the year ended December 31, 2008, filed on March 12, 2009. |
| |
10.3 | | Amended and Restated Exchange Agreement by and among the Och-Ziff Capital Management Group LLC, Och-Ziff Corp., Och-Ziff Holding, OZ Management, OZ Advisors, OZ Advisors II, and the Och-Ziff Limited Partners and Class B Shareholders, dated as of August 1, 2012, incorporated herein by reference to Exhibit 10.1 of our Quarterly Report on Form 10-Q for the period ended June 30, 2012, filed on August 2, 2012. |
| |
10.4+ | | Och-Ziff Capital Management Group LLC Amended and Restated 2007 Equity Incentive Plan, incorporated herein by reference to Exhibit 10.1 of our Registration Statement on Form S-8, filed on November 12, 2008 (File No. 333-155315). |
| |
10.5 | | Certificate of Incorporation of Och-Ziff Holding Corporation, dated as of July 12, 2007, incorporated herein by reference to Exhibit 10.8 to Amendment No. 3 to our Registration Statement on Form S-1, filed October 12, 2007 (File No. 333-144256). |
| |
10.6 | | Bylaws of Och-Ziff Holding Corporation, dated as of July 17, 2007, incorporated herein by reference to Exhibit 10.9 to Amendment No. 3 to our Registration Statement on Form S-1, filed October 12, 2007 (File No. 333-144256). |
| |
10.7 | | Certificate of Formation of Och-Ziff Holding LLC, dated as of June 13, 2007, incorporated herein by reference to Exhibit 10.10 to Amendment No. 3 to our Registration Statement on Form S-1, filed October 12, 2007 (File No. 333-144256). |
| |
10.8 | | Second Amended and Restated Operating Agreement of Och-Ziff Holding LLC, dated as of November 11, 2007, incorporated herein by reference to Exhibit 10.11 of our Annual Report on Form 10-K for the year ended December 31, 2007, filed on March 26, 2008. |
| |
10.9 | | Amended and Restated Limited Partnership Agreement of OZ Advisors LP, dated as of August 1, 2012, incorporated herein by reference to Exhibit 10.3 of our Quarterly Report on Form 10-Q for the period ended June 30, 2012, filed on August 2, 2012. |
| |
10.10 | | Amended and Restated Limited Partnership Agreement of OZ Advisors II LP, dated as of August 1, 2012, incorporated herein by reference to Exhibit 10.4 of our Quarterly Report on Form 10-Q for the period ended June 30, 2012, filed on August 2, 2012. |
| |
95
Exhibit
No. | | Description |
10.11 | | Amended and Restated Limited Partnership Agreement of OZ Management LP, dated as of August 1, 2012, incorporated herein by reference to Exhibit 10.5 of our Quarterly Report on Form 10-Q for the period ended June 30, 2012, filed on August 2, 2012. |
| |
10.12+ | | Employment Agreement by and between Zoltan Varga and a subsidiary of the Registrant, dated as of November 5, 2007, incorporated herein by reference to Exhibit 10.15 to Amendment No. 8 to our Registration Statement on Form S-1, filed November 8, 2007 (File No. 333-144256). |
| |
10.13 | | Partner Agreement between OZ Management LP and Jeffrey C. Blockinger, dated as of September 30, 2009, incorporated herein by reference to Exhibit 10.1 of our Quarterly Report on Form 10-Q for the period ended March 31, 2010 filed on May 5, 2010. |
| |
10.14 | | Partner Agreement between OZ Advisors LP and Jeffrey C. Blockinger, dated as of September 30, 2009, incorporated herein by reference to Exhibit 10.2 of our Quarterly Report on Form 10-Q for the period ended March 31, 2010 filed on May 5, 2010. |
| |
10.15 | | Partner Agreement between OZ Advisors II LP and Jeffrey C. Blockinger, dated as of September 30, 2009, incorporated herein by reference to Exhibit 10.3 of our Quarterly Report on Form 10-Q for the period ended March 31, 2010 filed on May 5, 2010. |
| |
10.16 | | Partner Agreement between OZ Management LP and Jeffrey C. Blockinger, dated as of March 16, 2010, incorporated herein by reference to Exhibit 10.4 of our Quarterly Report on Form 10-Q for the period ended March 31, 2010 filed on May 5, 2010. |
| |
10.17 | | Partner Agreement between OZ Advisors LP and Jeffrey C. Blockinger, dated as of March 16, 2010, incorporated herein by reference to Exhibit 10.5 of our Quarterly Report on Form 10-Q for the period ended March 31, 2010 filed on May 5, 2010. |
| |
10.18 | | Partner Agreement between OZ Advisors II LP and Jeffrey C. Blockinger, dated as of March 16, 2010, incorporated herein by reference to Exhibit 10.6 of our Quarterly Report on Form 10-Q for the period ended March 31, 2010 filed on May 5, 2010. |
| |
10.19*+ | | Form of Independent Directors Award Agreement, amended as of November 1, 2013. |
| |
10.20 | | Credit and Guaranty Agreement, dated as of November 15, 2011, between OZ Management LP, the guarantors named therein and various lenders, incorporated herein by reference to Exhibit 10.2 of our Current Report on Form 8-K filed on November 15, 2011. |
| |
10.21 | | Partner Agreement between OZ Management LP and Jeffrey C. Blockinger, dated as of February 27, 2012, incorporated herein by reference to Exhibit 10.1 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.22 | | Partner Agreement between OZ Advisors LP and Jeffrey C. Blockinger, dated as of February 27, 2012, incorporated herein by reference to Exhibit 10.2 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.23 | | Partner Agreement between OZ Advisors II LP and Jeffrey C. Blockinger, dated as of February 27, 2012, incorporated herein by reference to Exhibit 10.3 of our Quarterly Report on Form 10- Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.24 | | Partner Agreement between OZ Management LP and Jeffrey C. Blockinger, dated as December 13, 2011, incorporated herein by reference to Exhibit 10.4 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.25 | | Partner Agreement between OZ Advisors LP and Jeffrey C. Blockinger, dated as of December 13, 2011, incorporated herein by reference to Exhibit 10.5 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.26 | | Partner Agreement between OZ Advisors II LP and Jeffrey C. Blockinger, dated as of December 13, 2011, incorporated herein by reference to Exhibit 10.6 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.27 | | Partner Agreement between OZ Management LP and Jeffrey C. Blockinger, dated as June 22, 2011, incorporated herein by reference to Exhibit 10.7 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.28 | | Partner Agreement between OZ Advisors LP and Jeffrey C. Blockinger, dated as of June 22, 2011, incorporated herein by reference to Exhibit 10.8 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
96
Exhibit
No. | | Description |
| |
10.29 | | Partner Agreement between OZ Advisors II LP and Jeffrey C. Blockinger, dated as of June 22, 2011, incorporated herein by reference to Exhibit 10.9 of our Quarterly Report on Form 10-Q for the period ended March 31, 2012 filed on May 2, 2012. |
| |
10.30+ | | The Och-Ziff Capital Management Group LLC 2012 Partner Incentive Plan, approved as of August 1, 2012, incorporated herein by reference to Exhibit 10.1 of our Current Form 8-K filed on August 2, 2012. |
| |
10.31 | | Amendment to Amended and Restated Exchange Agreement, dated as of August 1, 2012, by and among Och- Ziff Capital Management Group LLC, Och-Ziff Corp., Och-Ziff Holding, OZ Management, OZ Advisors, OZ Advisors II, and the Och-Ziff Limited Partners and Class B Shareholders, dated as of November 14, 2012, incorporated by reference to Exhibit 10.31 of our Annual Report on Form 10-K for the year ended December 31, 2012 filed on February 28, 2013. |
| |
10.32+ | | The Och-Ziff Capital Management Group LLC 2013 Incentive Plan, incorporated herein by reference to Exhibit 10.1 to our Current Report on Form 8-K filed on May 8, 2013. |
| |
21.1* | | Subsidiaries of the Registrant. |
| |
23.1* | | Consent of Ernst & Young LLP. |
| |
31.1* | | Certificate of Chief Executive Officer pursuant to Rule 13a-14(a)/Rule 15d-14(a) under the Securities Exchange Act of 1934. |
| |
31.2* | | Certificate of Chief Financial Officer pursuant to Rule 13a-14(a)/Rule 15d-14(a) under the Securities Exchange Act of 1934. |
| |
32.1* | | Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
| |
101.INS* | | XBRL Instance Document |
| |
101.SCH* | | XBRL Taxonomy Extension Schema Document |
| |
101.CAL* | | XBRL Taxonomy Extension Calculation Linkbase Document |
| |
101.DEF* | | XBRL Taxonomy Extension Definition Linkbase Document |
| |
101.LAB* | | XBRL Taxonomy Extension Label Linkbase Document |
| |
101.PRE* | | XBRL Taxonomy Extension Presentation Linkbase Document |
+ | Management contract, compensatory plan or arrangement |
97
Index to Consolidated Financial Statements
F-1
Report of Independent Registered Public Accounting Firm
To the Board of Directors and Shareholders of Och-Ziff Capital Management Group LLC
We have audited the accompanying consolidated balance sheets of Och-Ziff Capital Management Group LLC (the “Company”) as of December 31, 2013 and 2012, and the related consolidated statements of comprehensive income (loss), changes in shareholders’ equity, and cash flows for each of the three years in the period ended December 31, 2013. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Och-Ziff Capital Management Group LLC at December 31, 2013 and 2012, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2013, in conformity with U.S. generally accepted accounting principles.
As discussed in Note 2 to the consolidated financial statements, the 2012 consolidated financial statements have been restated to correct errors relating to the consolidation of CLOs that the Company manages and the deferral of incentive income allocations from the consolidated Och-Ziff funds.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Och-Ziff Capital Management Group LLC’s internal control over financial reporting as of December 31, 2013 based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (1992 Framework) and our report dated March18, 2014 expressed an adverse opinion thereon.
/s/ Ernst & Young LLP
New York, New York
March 18, 2014
F-2
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
CONSOLIDATED BALANCE SHEETS
| December 31, | |
| 2013 | | | 2012 (Restated) | |
| (dollars in thousands) | |
Assets | | | | | | | |
Cash and cash equivalents | $ | 189,974 | | | $ | 162,485 | |
Income and fees receivable | | 942,589 | | | | 591,951 | |
Due from related parties | | 5,314 | | | | 3,147 | |
Deferred income tax assets | | 934,658 | | | | 917,101 | |
Other assets, net | | 85,550 | | | | 72,238 | |
Assets of consolidated Och-Ziff funds: | | | | | | | |
Investments, at fair value | | 4,608,418 | | | | 2,779,458 | |
Other assets of Och-Ziff funds | | 102,771 | | | | 71,296 | |
Total Assets | $ | 6,869,274 | | | $ | 4,597,676 | |
| | | | | | | |
Liabilities and Shareholders' Equity | | | | | | | |
Liabilities | | | | | | | |
Due to related parties | $ | 782,667 | | | $ | 741,766 | |
Debt obligations | | 384,177 | | | | 388,043 | |
Compensation payable | | 307,495 | | | | 210,055 | |
Other liabilities | | 60,933 | | | | 40,535 | |
Liabilities of consolidated Och-Ziff funds: | | | | | | | |
Notes payable of consolidated CLOs, at fair value | | 2,763,977 | | | | 1,061,545 | |
Securities sold under agreements to repurchase | | 257,691 | | | | 223,543 | |
Other liabilities of Och-Ziff funds | | 20,727 | | | | 12,008 | |
Total Liabilities | | 4,577,667 | | | | 2,677,495 | |
| | | | | | | |
Commitments and Contingencies (Note 15) | | | | | | | |
| | | | | | | |
Redeemable Noncontrolling Interests (Note 3) | | 76,583 | | | | 8,692 | |
| | | | | | | |
Shareholders' Equity | | | | | | | |
Class A Shares, no par value, 1,000,000,000 shares authorized, 169,641,610 and 147,689,919 shares issued and outstanding as of December 31, 2013 and 2012, respectively | | - | | | | - | |
Class B Shares, no par value, 750,000,000 shares authorized, 301,884,116 and 281,886,394 shares issued and outstanding as of December 31, 2013 and 2012, respectively | | - | | | | - | |
Paid-in capital | | 2,958,324 | | | | 2,900,247 | |
Appropriated retained earnings (deficit) | | 12,872 | | | | (3,627 | ) |
Accumulated deficit | | (3,104,917 | ) | | | (3,145,541 | ) |
Shareholders' deficit attributable to Class A Shareholders | | (133,721 | ) | | | (248,921 | ) |
Shareholders' equity attributable to noncontrolling interests | | 2,348,745 | | | | 2,160,410 | |
Total Shareholders' Equity | | 2,215,024 | | | | 1,911,489 | |
Total Liabilities, Redeemable Noncontrolling Interests and Shareholders' Equity | $ | 6,869,274 | | | $ | 4,597,676 | |
See notes to consolidated financial statements.
F-3
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| (dollars in thousands) | |
Revenues | | | | | | | | | | | |
Management fees | $ | 556,427 | | | $ | 504,395 | | | $ | 500,857 | |
Incentive income | | 1,076,547 | | | | 595,727 | | | | 65,026 | |
Other revenues | | 2,150 | | | | 1,038 | | | | 2,258 | |
Income of consolidated Och-Ziff funds | | 260,799 | | | | 125,442 | | | | 48,283 | |
Total Revenues | | 1,895,923 | | | | 1,226,602 | | | | 616,424 | |
| | | | | | | | | | | |
Expenses | | | | | | | | | | | |
Compensation and benefits | | 554,069 | | | | 389,153 | | | | 325,008 | |
Reorganization expenses | | 16,087 | | | | 1,396,882 | | | | 1,614,363 | |
Interest expense | | 7,011 | | | | 6,062 | | | | 7,102 | |
General, administrative and other | | 149,874 | | | | 116,873 | | | | 85,117 | |
Expenses of consolidated Och-Ziff funds | | 99,838 | | | | 18,986 | | | | 8,723 | |
Total Expenses | | 826,879 | | | | 1,927,956 | | | | 2,040,313 | |
| | | | | | | | | | | |
Other Income | | | | | | | | | | | |
Net gains on investments in Och-Ziff funds and joint ventures | | 1,966 | | | | 274 | | | | 632 | |
Net gains on early retirement of debt | | - | | | | - | | | | 12,494 | |
Net gains of consolidated Och-Ziff funds | | 280,502 | | | | 212,710 | | | | 6,656 | |
Total Other Income | | 282,468 | | | | 212,984 | | | | 19,782 | |
| | | | | | | | | | | |
Income (Loss) Before Income Taxes | | 1,351,512 | | | | (488,370 | ) | | | (1,404,107 | ) |
Income taxes | | 95,687 | | | | 82,861 | | | | 59,581 | |
Consolidated Net Income (Loss) | | 1,255,825 | | | | (571,231 | ) | | | (1,463,688 | ) |
| | | | | | | | | | | |
Other Comprehensive Income, Net of Tax | | | | | | | | | | | |
Foreign currency translation adjustment | | - | | | | 229 | | | | 5 | |
Total Comprehensive Income (Loss) | $ | 1,255,825 | | | $ | (571,002 | ) | | $ | (1,463,683 | ) |
| | | | | | | | | | | |
Allocation of Consolidated Net Income (Loss) | | | | | | | | | | | |
Class A Shareholders | $ | 261,767 | | | $ | (310,723 | ) | | $ | (418,990 | ) |
Noncontrolling interests | | 985,823 | | | | (262,200 | ) | | | (1,044,698 | ) |
Redeemable noncontrolling interests | | 8,235 | | | | 1,692 | | | | - | |
| $ | 1,255,825 | | | $ | (571,231 | ) | | $ | (1,463,688 | ) |
| | | | | | | | | | | |
Allocation of Total Comprehensive Income (Loss) | | | | | | | | | | | |
Class A Shareholders | $ | 261,767 | | | $ | (310,674 | ) | | $ | (418,989 | ) |
Noncontrolling interests | | 985,823 | | | | (262,020 | ) | | | (1,044,694 | ) |
Redeemable noncontrolling interests | | 8,235 | | | | 1,692 | | | | - | |
| $ | 1,255,825 | | | $ | (571,002 | ) | | $ | (1,463,683 | ) |
| | | | | | | | | | | |
Earnings (Loss) Per Class A Share | | | | | | | | | | | |
Basic | $ | 1.68 | | | $ | (2.17 | ) | | $ | (4.07 | ) |
Diluted | $ | 1.62 | | | $ | (2.17 | ) | | $ | (4.07 | ) |
| | | | | | | | | | | |
Weighted-Average Class A Shares Outstanding | | | | | | | | | | | |
Basic | | 155,994,389 | | | | 142,970,660 | | | | 102,848,812 | |
Diluted | | 468,442,690 | | | | 142,970,660 | | | | 102,848,812 | |
| | | | | | | | | | | |
Dividends Paid per Class A Share | $ | 1.42 | | | $ | 0.40 | | | $ | 1.07 | |
See notes to consolidated financial statements.
F-4
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY
(RESTATED)
| Och-Ziff Capital Management Group LLC Shareholders | | | | | | | | | |
| | | | | | | | | | | | | | | | | Accumulated Other Comprehensive Loss | | | | | | | | | | | | | |
| Number of Class A Shares | | | Number of Class B Shares | | | Paid-in Capital | | | Accumulated Deficit | | | Foreign Currency Translation Adjustment | | | Shareholders' Deficit Attributable to Class A Shareholders | | | Shareholders' Equity Attributable to Noncontrolling Interests | | | Total Shareholders' Equity | |
| | | | | | | | | (dollars in thousands) | |
As of December 31, 2010 (Previously Reported) | | 94,742,187 | | | | 274,666,921 | | | $ | 1,899,025 | | | $ | (2,250,530 | ) | | $ | (50 | ) | | $ | (351,555 | ) | | $ | 779,192 | | | $ | 427,637 | |
Impacts of restatements (See Note 2) | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 19,618 | | | | 19,618 | |
As of December 31, 2010 (Restated) | | 94,742,187 | | | | 274,666,921 | | | | 1,899,025 | | | | (2,250,530 | ) | | | (50 | ) | | | (351,555 | ) | | | 798,810 | | | | 447,255 | |
Capital contributions | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 296,361 | | | | 296,361 | |
Capital distributions | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (489,776 | ) | | | (489,776 | ) |
Cash dividends declared on Class A Shares | | - | | | | - | | | | - | | | | (104,100 | ) | | | - | | | | (104,100 | ) | | | - | | | | (104,100 | ) |
Dividend equivalents on Class A restricted share units | | - | | | | - | | | | 2,754 | | | | (2,754 | ) | | | - | | | | - | | | | - | | (1) | | - | |
Equity-based compensation | | 6,154,567 | | | | 1,650,000 | | | | 22,904 | | | | - | | | | - | | | | 22,904 | | | | 81,309 | | | | 104,213 | |
Issuance of Class A Shares in 2011 Offering, net of issuance costs | | 33,333,333 | | | | - | | | | 63,898 | | | | - | | | | - | | | | 63,898 | | | | 173,103 | | | | 237,001 | |
Och-Ziff Operating Group A Unit exchanges (See Note 3) | | 5,111,878 | | | | (2,030,913 | ) | | | 2,691 | | | | - | | | | - | | | | 2,691 | | | | 10,592 | | | | 13,283 | |
Contribution of right to future payments under tax receivable agreement (See Note 15) | | - | | | | - | | | | 723 | | | | - | | | | - | | | | 723 | | | | 3,480 | | | | 4,203 | |
Acquisition of noncontrolling interests | | - | | | | - | | | | (5 | ) | | | - | | | | - | | | | (5 | ) | | | (15 | ) | | | (20 | ) |
Impact of amortization of Reorganization charges on capital | | - | | | | - | | | | 427,297 | | | | - | | | | - | | | | 427,297 | | | | 1,187,066 | | | | 1,614,363 | |
Total comprehensive loss | | - | | | | - | | | | - | | | | (418,990 | ) | | | 1 | | | | (418,989 | ) | | | (1,044,694 | ) | | | (1,463,683 | ) |
As of December 31, 2011 | | 139,341,965 | | | | 274,286,008 | | | $ | 2,419,287 | | | $ | (2,776,374 | ) | | $ | (49 | ) | | $ | (357,136 | ) | | $ | 1,016,236 | | | $ | 659,100 | |
F-5
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY — (Continued)
(RESTATED)
| Och-Ziff Capital Management Group LLC Shareholders | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | Accumulated Other Comprehensive Loss | | | | | | | | | | | | | |
| Number of Class A Shares | | | Number of Class B Shares | | | Paid-in Capital | | | Appropriated Retained Deficit | | | Accumulated Deficit | | | Foreign Currency Translation Adjustment | | | Shareholders' Deficit Attributable to Class A Shareholders | | | Shareholders' Equity Attributable to Noncontrolling Interests | | | Total Shareholders' Equity | |
| | | | | | | | | (dollars in thousands) | |
As of December 31, 2011 | | 139,341,965 | | | | 274,286,008 | | | $ | 2,419,287 | | | $ | - | | | $ | (2,776,374 | ) | | $ | (49 | ) | | $ | (357,136 | ) | | $ | 1,016,236 | | | $ | 659,100 | |
Capital contributions | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 716,091 | | | | 716,091 | |
Capital distributions | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (301,579 | ) | | | (301,579 | ) |
Cash dividends declared on Class A Shares | | - | | | | - | | | | - | | | | - | | | | (56,670 | ) | | | - | | | | (56,670 | ) | | | - | | | | (56,670 | ) |
Dividend equivalents on Class A restricted share units | | - | | | | - | | | | 1,774 | | | | - | | | | (1,774 | ) | | | - | | | | - | | | | - | | (1) | | - | |
Equity-based compensation | | 3,681,460 | | | | 7,600,386 | | | | 23,733 | | | | - | | | | - | | | | - | | | | 23,733 | | | | 51,367 | | | | 75,100 | |
Och-Ziff Operating Group A Unit exchanges (See Note 3) | | 4,666,494 | | | | - | | | | 1,898 | | | | - | | | | - | | | | - | | | | 1,898 | | | | 1,029 | | | | 2,927 | |
Acquisition of noncontrolling interests | | - | | | | - | | | | (13 | ) | | | - | | | | - | | | | - | | | | (13 | ) | | | (45 | ) | | | (58 | ) |
Consolidation of joint venture | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 304 | | | | 304 | |
Initial consolidation of CLOs | | - | | | | - | | | | - | | | | (7,914 | ) | | | - | | | | - | | | | (7,914 | ) | | | - | | | | (7,914 | ) |
Allocation of income of consolidated CLOs | | - | | | | - | | | | - | | | | 4,287 | | | | - | | | | - | | | | 4,287 | | | | (4,287 | ) | | | - | |
Impact of amortization of Reorganization charges on capital | | - | | | | - | | | | 453,568 | | | | - | | | | - | | | | - | | | | 453,568 | | | | 943,314 | | | | 1,396,882 | |
Total comprehensive loss (excludes $1,692 allocated to redeemable noncontrolling interests) | | - | | | | - | | | | - | | | | - | | | | (310,723 | ) | | | 49 | | | | (310,674 | ) | | | (262,020 | ) | | | (572,694 | ) |
As of December 31, 2012 | | 147,689,919 | | | | 281,886,394 | | | $ | 2,900,247 | | | $ | (3,627 | ) | | $ | (3,145,541 | ) | | $ | - | | | $ | (248,921 | ) | | $ | 2,160,410 | | | $ | 1,911,489 | |
F-6
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS’ EQUITY — (Continued)
| Och-Ziff Capital Management Group LLC Shareholders | | | | | | | | | |
| Number of Class A Shares | | | Number of Class B Shares | | | Paid-in Capital | | | Appropriated Retained Earnings (Deficit) | | | Accumulated Deficit | | | Shareholders' Deficit Attributable to Class A Shareholders | | | Shareholders' Equity Attributable to Noncontrolling Interests | | | Total Shareholders' Equity | |
| | | | | | | | | (dollars in thousands) | |
As of December 31, 2012 (Restated) | | 147,689,919 | | | | 281,886,394 | | | $ | 2,900,247 | | | $ | (3,627 | ) | | $ | (3,145,541 | ) | | $ | (248,921 | ) | | $ | 2,160,410 | | | $ | 1,911,489 | |
Capital contributions | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | 341,447 | | | | 341,447 | |
Capital distributions | | - | | | | - | | | | - | | | | - | | | | - | | | | - | | | | (1,180,875 | ) | | | (1,180,875 | ) |
Cash dividends declared on Class A Shares | | - | | | | - | | | | - | | | | - | | | | (213,909 | ) | | | (213,909 | ) | | | - | | | | (213,909 | ) |
Dividend equivalents on Class A restricted share units | | - | | | | - | | | | 7,234 | | | | - | | | | (7,234 | ) | | | - | | | | - | | (1) | | - | |
Equity-based compensation | | 4,951,691 | | | | 19,997,722 | | | | 38,143 | | | | - | | | | - | | | | 38,143 | | | | 65,990 | | | | 104,133 | |
Och-Ziff Operating Group A Unit exchanges (See Note 3) | | 17,000,000 | | | | - | | | | 9,885 | | | | - | | | | - | | | | 9,885 | | | | 3,753 | | | | 13,638 | |
Acquisition of noncontrolling interests | | - | | | | - | | | | (2,630 | ) | | | - | | | | - | | | | (2,630 | ) | | | 2,630 | | | | - | |
Initial consolidation of CLOs | | - | | | | - | | | | - | | | | (24,576 | ) | | | - | | | | (24,576 | ) | | | - | | | | (24,576 | ) |
Allocation of income of consolidated CLOs | | - | | | | - | | | | - | | | | 41,075 | | | | - | | | | 41,075 | | | | (41,075 | ) | | | - | |
Impact of amortization of Reorganization charges on capital | | - | | | | - | | | | 5,445 | | | | - | | | | - | | | | 5,445 | | | | 10,642 | | | | 16,087 | |
Total comprehensive income (excludes $8,235 allocated to redeemable noncontrolling interests) | | - | | | | - | | | | - | | | | - | | | | 261,767 | | | | 261,767 | | | | 985,823 | | | | 1,247,590 | |
As of December 31, 2013 | | 169,641,610 | | | | 301,884,116 | | | $ | 2,958,324 | | | $ | 12,872 | | | $ | (3,104,917 | ) | | $ | (133,721 | ) | | $ | 2,348,745 | | | $ | 2,215,024 | |
(1) | The dividend equivalents on Class A restricted share units impacted noncontrolling interests by increasing the paid-in capital component and a corresponding offsetting increase in the accumulated deficit component of noncontrolling interests, each by $14.3 million, $3.7 million and $8.3 million for the years ended December 31, 2013, 2012 and 2011, respectively. |
See notes to consolidated financial statements.
F-7
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
CONSOLIDATED STATEMENTS OF CASH FLOWS
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| (dollars in thousands) | |
Cash Flows from Operating Activities | | | | | | | | | | | |
Consolidated net income (loss) | $ | 1,255,825 | | | $ | (571,231 | ) | | $ | (1,463,688 | ) |
Adjustments to reconcile consolidated net income (loss) to net cash provided by (used in) operating activities: | | | | | | | | | | | |
Reorganization expenses | | 16,087 | | | | 1,396,882 | | | | 1,614,363 | |
Amortization of equity-based compensation | | 133,832 | | | | 86,006 | | | | 128,916 | |
Depreciation and amortization | | 8,251 | | | | 9,362 | | | | 9,676 | |
Net gains on early retirement of debt | | - | | | | - | | | | (12,494 | ) |
Deferred income taxes | | 78,961 | | | | 68,203 | | | | 46,195 | |
Operating cash flows due to changes in: | | | | | | | | | | | |
Income and fees receivable | | (350,638 | ) | | | (517,571 | ) | | | 388,180 | |
Due from related parties | | (2,167 | ) | | | (854 | ) | | | (533 | ) |
Other assets, net | | (17,957 | ) | | | 3,042 | | | | (2,259 | ) |
Due to related parties | | (36,386 | ) | | | (33,875 | ) | | | (37,347 | ) |
Compensation payable | | 97,440 | | | | 102,671 | | | | (41,289 | ) |
Other liabilities | | 15,383 | | | | 7,905 | | | | (8,820 | ) |
Consolidated Och-Ziff funds related items: | | | | | | | | | | | |
Realized (gains) losses of consolidated Och-Ziff funds | | (238,783 | ) | | | 2,836 | | | | (12,914 | ) |
Change in unrealized (gains) losses of consolidated Och-Ziff funds | | (11,604 | ) | | | (225,510 | ) | | | 6,258 | |
Change in unrealized (gains) losses of notes payables of consolidated CLOs | | (30,115 | ) | | | 9,964 | | | | - | |
Purchases of investments | | (3,218,982 | ) | | | (1,855,599 | ) | | | (497,706 | ) |
Proceeds from sale of investments | | 2,979,785 | | | | 802,568 | | | | 194,576 | |
Other assets of consolidated Och-Ziff funds | | 337,213 | | | | 241,823 | | | | (22,148 | ) |
Securities sold under agreements to repurchase | | 34,148 | | | | 121,980 | | | | 78,083 | |
Other liabilities of consolidated Och-Ziff funds | | 8,626 | | | | 10,221 | | | | 1,393 | |
Net Cash Provided by (Used in) Operating Activities | | 1,058,919 | | | | (341,177 | ) | | | 368,442 | |
Cash Flows from Investing Activities | | | | | | | | | | | |
Other, net | | (4,041 | ) | | | (2,798 | ) | | | (3,132 | ) |
Net Cash Used in Investing Activities | | (4,041 | ) | | | (2,798 | ) | | | (3,132 | ) |
Cash Flows from Financing Activities | | | | | | | | | | | |
Contributions from noncontrolling and redeemable noncontrolling interests | | 401,103 | | | | 723,091 | | | | 292,400 | |
Distributions to noncontrolling and redeemable noncontrolling interests | | (1,180,875 | ) | | | (301,579 | ) | | | (489,386 | ) |
Proceeds from issuance of Class A Shares in 2011 Offering | | - | | | | - | | | | 238,750 | |
Proceeds from Delayed Draw Term Loan | | - | | | | 384,500 | | | | 6,500 | |
Repayments of debt obligations | | (3,866 | ) | | | (380,142 | ) | | | (249,595 | ) |
Dividends on Class A Shares | | (213,909 | ) | | | (56,670 | ) | | | (104,100 | ) |
Withholding taxes paid on vested Class A restricted share units | | (21,845 | ) | | | (10,907 | ) | | | (22,906 | ) |
RSUs settled in cash | | (13,707 | ) | | | - | | | | - | |
Other, net | | 5,710 | | | | (844 | ) | | | (5,539 | ) |
Net Cash Provided by (Used in) Financing Activities | | (1,027,389 | ) | | | 357,449 | | | | (333,876 | ) |
Net Change in Cash and Cash Equivalents | | 27,489 | | | | 13,474 | | | | 31,434 | |
Cash and Cash Equivalents, Beginning of Period | | 162,485 | | | | 149,011 | | | | 117,577 | |
Cash and Cash Equivalents, End of Period | $ | 189,974 | | | $ | 162,485 | | | $ | 149,011 | |
See notes to consolidated financial statements.
F-8
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
CONSOLIDATED STATEMENTS OF CASH FLOWS — (Continued)
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| (dollars in thousands) | |
Supplemental Disclosure of Cash Flow Information | | | | | | | | | | | |
Cash paid during the period: | | | | | | | | | | | |
Interest | $ | 6,739 | | | $ | 5,621 | | | $ | 6,559 | |
Income taxes | | 15,476 | | | | 11,867 | | | | 22,680 | |
Non-cash transactions: | | | | | | | | | | | |
Assets related to the initial consolidation of CLOs | $ | 1,708,064 | | | $ | 1,043,914 | | | $ | - | |
Liabilities related to the initial consolidation of CLOs | | 1,732,640 | | | | 1,051,828 | | | | - | |
In-kind distribution of deferred balances | | - | | | | - | | | | 2,892 | |
Capital lease additions | | - | | | | - | | | | 2,471 | |
See notes to consolidated financial statements.
F-9
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Och-Ziff Capital Management Group LLC (the “Registrant”), a Delaware limited liability company, together with its consolidated subsidiaries (collectively, the “Company”), is a global alternative asset management firm with offices in New York, London, Hong Kong, Mumbai, Beijing and Dubai. The Company provides asset management services to its investment funds (the “Och-Ziff funds” or the “funds”), which pursue a broad range of global investment opportunities. The Company currently manages multi-strategy funds, credit funds, collateralized loan obligations (“CLOs”), real estate funds and other alternative investment vehicles.
The Company’s primary sources of revenues are management fees, which are based on the amount of the Company’s assets under management, and incentive income, which is based on the investment performance of its funds. Accordingly, for any given period, the Company’s revenues will be driven by the combination of assets under management and the investment performance of the Och-Ziff funds.
The Company conducts substantially all of its operations through its one reportable segment, the Och-Ziff Funds segment, which provides asset management services to its multi-strategy funds, credit funds, CLOs and other alternative investment vehicles. The Company’s Other Operations are primarily comprised of its real estate business, which provides asset management services to its real estate funds. The businesses included in the Company’s Other Operations do not meet the thresholds of reportable business segments under U.S. generally accepted accounting principles (“GAAP”).
The Company generates substantially all of its revenues in the United States. The liability of the Company’s Class A Shareholders is limited to the extent of their capital contributions.
References to the Company’s “executive managing directors” refer to the current limited partners of OZ Management LP, OZ Advisors LP and OZ Advisors II LP (collectively with their consolidated subsidiaries, the “Och-Ziff Operating Group”) other than the Ziffs and the Company’s intermediate holding companies, including the Company’s founder, Mr. Daniel S. Och, and, except where the context requires otherwise, include certain limited partners who are no longer active in the business of the Company. The Company conducts substantially all of its operations through the Och-Ziff Operating Group. References to the “Ziffs” refer collectively to Ziff Investors Partnership, L.P. II and certain of its affiliates and control persons. References to the Company’s “intermediate holding companies” refer, collectively, to Och-Ziff Holding Corporation (“Och-Ziff Corp”) and Och-Ziff Holding LLC, both of which are wholly owned subsidiaries of the Registrant.
Class A Share Offerings
In November 2007, the Company completed its initial public offering (“IPO”) of 36,000,000 Class A Shares and a private offering of 38,138,571 million Class A Shares to DIC Sahir, a wholly owned subsidiary of Dubai International Capital LLC (collectively, the “2007 Offerings”). The Company used the net proceeds from the 2007 Offerings to acquire a 19.2% interest in the Och-Ziff Operating Group from the Company’s executive managing directors and the Ziffs, who collectively held all of the interests in the Och-Ziff Operating Group prior to the 2007 Offerings. As of December 31, 2013, the Company’s interest in the Och-Ziff Operating Group had increased to approximately 35.9%. See Note 3 for additional information regarding changes in the Company’s interest in the Och-Ziff Operating Group.
In November 2011, the Company completed a public offering of 33,333,333 million Class A Shares (the “2011 Offering”) for $7.50 per share, which resulted in net proceeds of $238.7 million. The Company incurred $1.7 million of expenses in connection with the 2011 Offering. The Company used the net proceeds from the 2011 Offering to repurchase and retire a portion of the indebtedness outstanding under the term loan entered into in July 2007 (the “2007 Term Loan”). See Note 9 for additional information.
Reorganization
Prior to the 2007 Offerings, the Company completed a reorganization of its business (the “Reorganization”). As part of the Reorganization, Mr. Och’s equity interests, the other executive managing directors’ non-equity interests and the Ziffs’ profit sharing interests were reclassified as Och-Ziff Operating Group A Units. As a result of these reclassifications, the Company incurred significant non-cash Reorganization expenses. See Note 10 for additional information regarding these Reorganization expenses.
F-10
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Company Structure
The Registrant is a holding company that, through its intermediate holding companies, holds equity ownership interests in the Och-Ziff Operating Group. The Registrant has issued and outstanding the following share classes:
• | Class A Shares—Class A Shares are publicly traded and entitle the holders thereof to one vote per share on matters submitted to a vote of shareholders. The holders of Class A Shares are entitled to any distributions declared by the Registrant’s Board of Directors (the “Board”). |
• | Class B Shares—Class B Shares are held by the Company’s executive managing directors. These shares are not publicly traded but rather entitle the executive managing directors to one vote per share on matters submitted to a vote of shareholders. These shares do not participate in the earnings of the Registrant, as the executive managing directors participate in the related economics of the Och-Ziff Operating Group through their direct ownership of Och-Ziff Operating Group A Units as discussed below. The executive managing directors granted to the Class B Shareholder Committee, currently consisting solely of Mr. Och, an irrevocable proxy to vote their Class B Shares in concert. The Ziffs do not hold any Class B Shares. |
The Company conducts substantially all of its operations through the Och-Ziff Operating Group. The following Och-Ziff Operating Group Units represent all of the equity interests of the Och-Ziff Operating Group:
• | Och-Ziff Operating Group A Units—The Och-Ziff Operating Group A Units are held by the Company’s executive managing directors and the Ziffs. Once vested, these units may be exchanged on a one-to-one basis for Class A Shares, subject to minimum ownership requirements and transfer restrictions. |
• | Och-Ziff Operating Group B Units—The Och-Ziff Operating Group B Units are held by the Company’s intermediate holding companies. These units represent the Company’s economic interest in the Och-Ziff Operating Group. |
The Company issues its executive managing directors a number of Class B Shares of the Registrant equal to the number of Och-Ziff Operating Group A Units held by each executive managing director. Upon the exchange of an Och-Ziff Operating Group A Unit for a Class A Share by an executive managing director, the corresponding Class B Share is canceled and an Och-Ziff Operating Group B Unit is issued to the intermediate holding companies of the Company.
The Company has also issued Och-Ziff Operating Group D Units to executive managing directors subsequent to the IPO. Och-Ziff Operating Group D Units are not considered equity for GAAP purposes, and therefore distributions made to holders of these units are recognized within compensation and benefits in the consolidated statements of comprehensive income (loss). Och-Ziff Operating Group D Units receive distributions on a pro rata basis with the Och-Ziff Operating Group A Units and the Och-Ziff Operating Group B Units. An Och-Ziff Operating Group D Unit converts into an Och-Ziff Operating Group A Unit to the extent the Company determines that it has become economically equivalent to an Och-Ziff Operating Group A Unit, at which point it is considered a grant of equity-based compensation for GAAP purposes. As of December 31, 2013, the Och-Ziff Operating Group D Units represented a 2.3% interest in the Och-Ziff Operating Group.
2. | BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
Basis of Presentation
These consolidated financial statements are prepared in accordance with GAAP as set forth in the Financial Accounting Standards Board’s (“FASB”) Accounting Standards Codification (“ASC”). All intercompany transactions and balances have been eliminated in consolidation.
Restatements
Following a periodic review performed by the staff of the U.S. Securities and Exchange Commission (the “Staff”), the Company determined that it will correct an error related to the consolidation of the CLOs it manages. The Company launched its first CLO in the third quarter of 2012. Consolidating the CLOs has resulted in material adjustments to the Company’s previously issued annual and interim financial statements from the third quarter of 2012 through the third quarter of 2013. The consolidation of these CLOs resulted in an increase in the assets and liabilities of consolidated Och-Ziff funds in the consolidated balance sheets for these periods, as well as an increase in the income, expenses and net gains of consolidated Och-Ziff funds in the consolidated statements of comprehensive income (loss), but did not impact net income (loss) allocated to Class A Shareholders.
F-11
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
In addition, the Company corrected an error related to the treatment of the previously deferred incentive income allocations from the consolidated Och-Ziff funds that remained subject to clawback, to the extent there are future losses. The Company determined that such amounts are allocable to the Company and to noncontrolling interests based on the contractual terms of the relevant fund documents rather than deferring these amounts until clawback contingencies are resolved. To correct the error, for the years ended December 31, 2012 and 2011, the Company adjusted previously reported amounts from change in deferred income of consolidated Och-Ziff funds in the statements of comprehensive income (loss) to consolidated net income (loss) allocated to noncontrolling interests and consolidated net income (loss) allocated to Class A Shareholders. These adjustments also resulted in a change to the previously reported earnings per share information for the year ended December 31, 2012. The Company also adjusted the previously reported related deferred income of consolidated Och-Ziff funds liability from other liabilities in the consolidated balance sheets to shareholders’ equity attributable to noncontrolling interests and shareholders’ deficit attributable to Class A Shareholders.
The tables below present the effect of these adjustments on the affected line items in the Company’s consolidated balance sheet and statements of comprehensive income (loss) as reported in the Company’s annual report on Form 10-K for the year ended December 31, 2012. In addition, included within the adjustments presented in the table below is the reclassification from noncontrolling interests to redeemable noncontrolling interests discussed in “—Reclassifications.”
Consolidated Balance Sheet
| December 31, 2012 | |
| Previously Reported | | | Adjustments | | | Restated | |
| (dollars in thousands) | |
Income and fees receivable | $ | 593,504 | | | $ | (1,553 | ) | | $ | 591,951 | |
Deferred income tax assets | | 920,877 | | | | (3,776 | ) | | | 917,101 | |
Assets of consolidated Och-Ziff funds: | | | | | | | | | | | |
Investments, at fair value | | 1,744,626 | | | | 1,034,832 | | | | 2,779,458 | |
Other assets of Och-Ziff funds | | 38,188 | | | | 33,108 | | | | 71,296 | |
Total assets | | 3,535,065 | | | | 1,062,611 | | | | 4,597,676 | |
| | | | | | | | | | | |
Due to related parties | | 741,773 | | | | (7 | ) | | | 741,766 | |
Other liabilities | | 119,529 | | | | (78,994 | ) | | | 40,535 | |
Liabilities of consolidated Och-Ziff funds: | | | | | | | | | | | |
Notes payable of consolidated CLOs, at fair value | | - | | | | 1,061,545 | | | | 1,061,545 | |
Other liabilities of Och-Ziff funds | | 3,538 | | | | 8,470 | | | | 12,008 | |
Total liabilities | | 1,686,481 | | | | 991,014 | | | | 2,677,495 | |
| | | | | | | | | | | |
Redeemable noncontrolling interests | | - | | | | 8,692 | | | | 8,692 | |
| | | | | | | | | | | |
Paid-in capital | | 2,900,109 | | | | 138 | | | | 2,900,247 | |
Appropriated retained earnings (deficit) | | - | | | | (3,627 | ) | | | (3,627 | ) |
Accumulated deficit | | (3,150,644 | ) | | | 5,103 | | | | (3,145,541 | ) |
Shareholders' deficit attributable to Class A Shareholders | | (250,535 | ) | | | 1,614 | | | | (248,921 | ) |
Shareholders' equity attributable to noncontrolling interests | | 2,099,119 | | | | 61,291 | | | | 2,160,410 | |
Total shareholders' equity | | 1,848,584 | | | | 62,905 | | | | 1,911,489 | |
Total liabilities, redeemable noncontrolling interests and shareholders' equity | | 3,535,065 | | | | 1,062,611 | | | | 4,597,676 | |
F-12
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Consolidated Statements of Operations
| Year Ended December 31, 2012 | |
| Previously Reported | | | Adjustments | | | Restated | |
| (dollars in thousands) | |
Management fees | $ | 505,948 | | | $ | (1,553 | ) | | $ | 504,395 | |
Income of consolidated Och-Ziff funds | | 108,684 | | | | 16,758 | | | | 125,442 | |
General, administrative and other | | 116,880 | | | | (7 | ) | | | 116,873 | |
Expenses of consolidated Och-Ziff funds | | 10,440 | | | | 8,546 | | | | 18,986 | |
Change in deferred income of consolidated Och-Ziff funds | | (52,256 | ) | | | 52,256 | | | | - | |
Net gains of consolidated Och-Ziff funds | | 215,081 | | | | (2,371 | ) | | | 212,710 | |
Income taxes | | 79,085 | | | | 3,776 | | | | 82,861 | |
Consolidated net loss | | (624,006 | ) | | | 52,775 | | | | (571,231 | ) |
Total comprehensive loss | | (623,777 | ) | | | 52,775 | | | | (571,002 | ) |
| | | | | | | | | | | |
Allocation of Consolidated Net Income (Loss) | | | | | | | | | | | |
Class A Shareholders | | (315,826 | ) | | | 5,103 | | | | (310,723 | ) |
Noncontrolling interests | | (308,180 | ) | | | 45,980 | | | | (262,200 | ) |
Redeemable noncontrolling interests | | - | | | | 1,692 | | | | 1,692 | |
| | | | | | | | | | | |
Allocation of Total Comprehensive Income (Loss) | | | | | | | | | | | |
Class A Shareholders | | (315,777 | ) | | | 5,103 | | | | (310,674 | ) |
Noncontrolling interests | | (308,000 | ) | | | 45,980 | | | | (262,020 | ) |
Redeemable noncontrolling interests | | - | | | | 1,692 | | | | 1,692 | |
| | | | | | | | | | | |
Earnings (Loss) Per Class A Share | | | | | | | | | | | |
Basic | $ | (2.21 | ) | | $ | 0.04 | | | $ | (2.17 | ) |
Diluted | $ | (2.21 | ) | | $ | 0.04 | | | $ | (2.17 | ) |
| Year Ended December 31, 2011 | |
| Previously Reported | | | Adjustments | | | Restated | |
| (dollars in thousands) | |
Change in deferred income of consolidated Och-Ziff funds | $ | (7,117 | ) | | $ | 7,117 | | | $ | - | |
Consolidated net loss | | (1,470,805 | ) | | | 7,117 | | | | (1,463,688 | ) |
Total comprehensive loss | | (1,470,800 | ) | | | 7,117 | | | | (1,463,683 | ) |
Allocation of consolidated net loss to noncontrolling interests | | (1,051,815 | ) | | | 7,117 | | | | (1,044,698 | ) |
Allocation of total comprehensive loss to noncontrolling interests | | (1,051,811 | ) | | | 7,117 | | | | (1,044,694 | ) |
There were no changes to the previously reported net cash flows from operating, investing and financing activities resulting from the restatements, as the financing cash flows related to the consolidation of the CLOs occurred prior to consolidation. See non-cash disclosures in the consolidated statements of cash flows for additional information.
Reclassifications
The Company consolidates a credit hedge fund that allows fund investors to redeem their interests upon the expiration of a lockup period. These interests were deemed immaterial for separate presentation as redeemable noncontrolling interests in 2012, and therefore were included within noncontrolling interests in the consolidated balance sheets and statements of comprehensive income (loss). Due to growth in this consolidated fund in 2013, the Company started to report these interests separately in the consolidated balance sheets and statements of comprehensive income (loss). As a result, the Company has reclassified the 2012 amounts to conform to the current period presentation.
F-13
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Use of Estimates
The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements of the Company. The most critical of these estimates are related to (i) fair value measurements of the assets and liabilities of the Och-Ziff funds, which impacts the Company’s management fees and incentive income; (ii) the accounting treatment for variable interest entities; and (iii) the estimate of future taxable income, which impacts the carrying amount of the Company’s deferred income tax assets. While management believes that the estimates utilized in preparing the consolidated financial statements are reasonable and prudent, actual results could differ materially from those estimates.
Consolidation Policies
The consolidated financial statements include the accounts of the Registrant and entities in which it, directly or indirectly, is determined to have a controlling financial interest under the following set of guidelines:
· | Variable Interest Entities (“VIEs”)—The Company determines whether, if by design, an entity has equity investors who lack the characteristics of a controlling financial interest or does not have sufficient equity at risk to finance its expected activities without additional subordinated financial support from other parties. If an entity has either of these characteristics, it is considered a VIE and must be consolidated by its primary beneficiary. As substantially all of the funds managed by the Company qualify for the deferral under ASU 2010-10, Amendments to Statement 167 for Certain Investment Funds, the primary beneficiary of the funds the Company manages that are determined to be VIEs is the party that absorbs a majority of the VIEs’ expected losses or receives a majority of the expected residual returns as a result of holding variable interests. The Company’s CLOs and a certain joint venture are VIEs and do not qualify for the deferral under ASU 2010-10. Therefore, the primary beneficiary of these entities is the party that (i) has the power to direct the activities of the entity that most significantly impact the entity’s economic performance; and (ii) has the obligation to absorb losses or the right to receive benefits from the entity that could potentially be significant to the entity. |
· | Voting Interest Entities (“VOEs”)—For entities that are not VIEs, the Company consolidates those entities in which it has an equity investment of greater than 50% and has control over significant operating, financial and investing decisions of the entity. Additionally, the Company consolidates partnerships in which the Company is a substantive, controlling general partner and the limited partners have no substantive rights to participate in the ongoing governance and operating activities. |
The Company’s funds are typically organized using a “master-feeder” structure. Fund investors, including the Company’s executive managing directors, employees and other related parties to the extent they invest in a given fund, invest directly into the feeder funds. These feeder funds are typically limited partnerships or limited companies that hold direct or indirect interests in a master fund. The master fund, together with its subsidiaries, is the primary investment vehicle for its feeder funds. The Company generally collects its management fees and incentive income from the feeder funds or wholly owned subsidiaries of the feeder funds (“intermediate funds”), and does not collect any management fees or incentive income directly from the master funds. However, the Company also organizes certain funds (e.g. its real estate funds and certain credit funds) without the use of a master-feeder structure. These are typically organized as limited partnerships, in which the Company is the general partner and collects management fees and incentive income directly from these entities; however, for the real estate funds the Company collects management fees directly from the funds’ investors.
The determination of whether a fund is a VIE or a VOE is based on the facts and circumstances for each individual fund in accordance with the guidelines described above.
Funds that are VIEs
Funds that the Company has determined to be VIEs are generally limited partnerships in which the Company serves as general partner but lacks a substantive equity investment and fund investors (i.e. the limited partners) do not have the substantive ability to remove the Company as general partner. In addition, limited companies in which the Company is the investment manager with decision-making rights and fund investors (i.e. the limited company shareholders) lack the substantive ability to remove the Company as the decision maker by a simple majority vote of the unrelated shareholders of the respective fund are also VIEs. As a result, the fund investors are deemed to lack the characteristics of a controlling financial interest, and therefore, the entity is a VIE. In addition, the lack of removal rights results in the Company’s management fees and incentive income being considered a variable interest when determining the primary beneficiary of a VIE. Finally, the Company’s CLOs are also VIEs since they lack sufficient equity at risk to finance their expected activities without additional subordinated financial support from other parties, as these entities are financed through senior and subordinated notes.
F-14
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
The following types of funds are generally VIEs and not consolidated by the Company: (i) master funds, where the Company lacks a variable interest. In these cases, the Company has no direct interest in the master fund. All management fees and incentive income related to these funds are collected from the related but separate feeder funds; (ii) intermediate funds, where the Company’s only variable interest in these entities is limited to the collection of management fees and incentive income. The majority of the expected losses and returns of these VIEs, which are subject to the deferral discussed above, flow through to the related feeder funds that wholly own these intermediate funds; and (iii) other funds, where the Company’s only interest is limited to the collection of management fees and incentive income. The majority of the expected losses and returns of these VIEs, which are subject to the deferral discussed above, flow through to a single investor.
The types of funds that are VIEs and consolidated by the Company generally include certain real estate and credit funds that qualify for the deferral above, and in which the following factors are present: (i) the Company does not have a substantive equity investment; (ii) fund investors lack substantive rights to remove the Company as general partner; (iii) investors in these funds are related parties of the Company, and therefore their interests when combined with the Company results in the Company and its related party group absorbing the majority of the expected losses and returns of these VIEs (these related parties include the Company’s executive managing directors, as well as fund investors who lack the ability to redeem their investments without the Company’s consent); and (iv) no single investor is expected to absorb a majority of the economics of the entity. Additionally, the Company consolidates the CLOs it manages, which do not qualify for the deferral discussed above. The Company has the power to direct the activities of each CLO that most significantly impact the CLO’s economic performance, and the Company has the right to receive benefits from the CLO in the form of management fees and incentive income that could potentially be significant to the CLO. See Note 6 for additional information regarding the Company’s CLOs.
Funds that are VOEs
Funds that the Company has determined to be VOEs are generally limited partnerships in which the Company or its executive managing directors have a substantive equity investment in the entity, or in which fund investors (i.e. the limited partners) have the substantive ability to remove the Company as general partner by a simple majority vote of the unrelated investors of the respective fund. Limited companies in which the Company is the investment manager with decision-making rights and the fund investors (i.e. the limited company shareholders) have the substantive ability to remove the Company as decision maker by a simple majority vote of the unrelated investors of the respective fund are also VOEs. As a result, the fund investors are deemed to have the characteristics of a controlling financial interest, and therefore, the entity is a VOE.
The types of funds that are VOEs and not consolidated by the Company are generally the feeder funds for the Company’s multi-strategy funds, as fund investors in these entities have been granted substantive removal rights.
The types of funds that are VOEs and consolidated by the Company include certain real estate and credit funds in which the Company has a substantive equity investment and fund investors lack substantive removal rights.
Allocations of Och-Ziff Operating Group Earnings (Losses) and Capital
Earnings (losses) of the Och-Ziff Operating Group are allocated on a pro rata basis between the Och-Ziff Operating Group A Units, which interests are reflected within net income (loss) allocated to noncontrolling interests, and Och-Ziff Operating Group B Units, which interests are reflected within net income (loss) allocated to Class A Shareholders, in the consolidated statements of comprehensive income (loss).
Paid-in capital of the Och-Ziff Operating Group is allocated pro rata between the Och-Ziff Operating Group A Units, which interest is reflected within noncontrolling interests, and Och-Ziff Operating Group B Units, which interest is reflected within the Company’s paid-in capital, in the consolidated balance sheets. As a result, increases in the Och-Ziff Operating Group’s paid-in capital resulting from the amortization of equity-based compensation and Reorganization expenses is allocated pro rata between noncontrolling interests and the Company’s paid-in capital.
See Note 3 for additional information regarding the Company’s interest in the Och-Ziff Operating Group.
F-15
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Noncontrolling Interests and Appropriated Retained Earnings (Deficit)
In addition to the executive managing directors’ and the Ziff’s interests in the Och-Ziff Operating Group discussed above, the Company also consolidates certain funds in which noncontrolling interests are present. The Company generally has little or no direct ownership in these funds. Amounts relating to fund investors’ interests in these funds are presented as noncontrolling interests in the consolidated balance sheets. Allocations of profits and losses to these interests are reflected within net income (loss) allocated to noncontrolling interests in the consolidated statements of comprehensive income (loss). Investors in these funds presented within noncontrolling interests are generally not able to redeem their interests until the fund liquidates or is otherwise wound-up.
Additionally, the Company consolidates a credit-focused hedge fund that it manages, wherein investors are able to redeem their interests after an initial lock-up period of one to three years. Amounts relating to these fund investors’ interests in the fund are presented as redeemable noncontrolling interests in the consolidated balance sheets. Allocations of profits and losses to these interests are reflected within net income (loss) allocated to redeemable noncontrolling interests in the consolidated statements of comprehensive income (loss).
Upon initial consolidation of a CLO, the Company has elected the fair value option for the notes payable of the consolidated CLOs. The recognition of the initial difference between the fair value of assets and liabilities of consolidated CLOs is treated as an adjustment to appropriated retained earnings (deficit). Net changes in the fair value of consolidated CLO assets and liabilities and related income and expenses are allocated to noncontrolling interests in the statements of comprehensive income (loss). These allocations are then reclassified from noncontrolling interests to appropriated retained earnings (deficit) in the consolidated balance sheets. Such amounts are reclassified since the holders of each CLO’s beneficial interests, as opposed to the Company, receive the benefits or absorb the losses of the CLO’s assets.
See Note 3 for additional information regarding noncontrolling interests.
Revenue Recognition Policies
The Company has two principal sources of revenues: management fees and incentive income. These revenues are derived from the Company’s agreements with the Och-Ziff funds. The agreements are automatically renewed on an annual basis unless the agreements are terminated by the general partner or directors of the respective funds. Certain investments held by employees, executive managing directors and other related parties in the Och-Ziff funds are not subject to management fees or incentive income charges. See Note 14 for additional information regarding these waived fees.
Management Fees
Management fees for the Company’s hedge funds typically range from 1.5% to 2.5% annually of assets under management in these funds. For the Company’s credit funds and real estate funds, management fees typically range from 0.75% to 1.5% annually based on either the net asset value of these funds or on the amount of capital committed to these platforms by its fund investors. Management fees for the Company’s CLOs are generally 0.50% based on the par value of the collateral and cash held in the CLOs.
Management fees are recognized over the period during which the related services are performed. Management fees are generally calculated and paid to the Company on a quarterly basis in advance, based on the amount of assets under management at the beginning of the quarter. Management fees are prorated for capital inflows and redemptions during the quarter. Accordingly, changes in the Company’s management fee revenues from quarter to quarter are driven by changes in the quarterly opening balances of assets under management, the relative magnitude and timing of inflows and redemptions during the respective quarter, as well as the impact of differing management fee rates charged on those inflows and redemptions.
Incentive Income
The Company earns incentive income based on the performance of the Och-Ziff funds. Incentive income is typically equal to 20% of the net realized and unrealized profits attributable to each fund investor, but it excludes unrealized gains and losses attributable to investments that the Company, as investment manager, believes lack a readily ascertainable market value, are illiquid or should be held until the resolution of a special event or circumstance (“Special Investments”).
For funds that the Company consolidates, including its real estate funds, certain credit funds and certain other funds, incentive income is recognized by allocating a portion of the net income of the consolidated Och-Ziff funds to the Company rather than to the fund investors (noncontrolling interests). Incentive income allocated to the Company is not reflected as incentive income in consolidated revenues, as these amounts are eliminated in consolidation. The allocation of incentive income to the Company is based on the contractual
F-16
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
terms of the relevant fund agreements. As a result, the Company may recognize earnings related to its incentive income allocation from the consolidated Och-Ziff funds prior to the end of their respective performance measurement periods, and therefore it may recognize earnings that are subject to clawback to the extent a consolidated fund generates subsequent losses.
For the funds that the Company does not consolidate, incentive income is not recognized until the end of the applicable performance measurement period when the amounts are contractually payable, or “crystallized.” Additionally, all of the Company’s hedge funds are subject to a perpetual loss carry forward, or perpetual “high-water mark,” meaning the Company will not be able to earn incentive income with respect to positive investment performance generated for a fund investor in any year following negative investment performance until that loss is recouped, at which point a fund investor’s investment surpasses the high-water mark. The Company earns incentive income on any net profits in excess of the high-water mark.
The performance measurement period for most of the Company’s assets under management is on a calendar-year basis, and therefore incentive income is generally crystallized annually on December 31. The Company may also recognize incentive income related to fund investor redemptions at other times during the year. Additionally, the Company may recognize a material amount of incentive income during the year related to assets subject to three-year performance measurement periods for which the measurement period has expired (including the rollover of a portion of these assets into one-year measurement periods upon the conclusion of the initial three-year measurement period), as well as assets in certain of its credit funds and certain other funds it manages, which typically have measurement periods beyond one year. The Company may also recognize incentive income for tax distributions related to these assets. Tax distributions are amounts distributed to the Company to cover tax liabilities related to incentive income that has been accrued at the fund level but will not be recognized until the end of the relevant performance measurement period (if at all).
As of December 31, 2013, the performance measurement periods with respect to approximately $10.6 billion, or 26.4%, of the Company’s assets under management were longer than one year. These assets under management include assets subject to three-year performance measurement periods in the OZ Master Fund and other multi-strategy funds, as well as assets in the Company’s credit funds, CLOs, real estate funds and other alternative investment vehicles it manages. Incentive income related to these assets is based on the cumulative investment performance over a specified measurement period (in the case of CLOs, based on the excess cash flows available to the holders of the subordinated notes), and, to the extent a fund is not consolidated, is not earned until it is no longer subject to repayment to the respective fund. The Company’s ability to earn incentive income on these longer-term assets is also subject to hurdle rates whereby the Company does not earn any incentive income until the investment returns exceed an agreed upon benchmark. However, for a portion of these assets subject to hurdle rates, once the investment performance has exceeded the hurdle rate, the Company may receive a preferential “catch-up” allocation, resulting in a potential recognition to the Company of a full 20% of the net profits attributable to investors in these assets.
Other Revenues
Other revenues consist primarily of interest income earned on the Company’s cash and cash equivalents and revenue related to non-business use of the corporate aircraft by Mr. Och. Interest income is recognized on an accrual basis when earned. Revenues earned from non-business use of the corporate aircraft are recognized on an accrual basis based on actual flight hours. See Note 14 for additional information regarding non-business use of the corporate aircraft.
Compensation and Benefits
Compensation and benefits is comprised of salaries, benefits, payroll taxes, and discretionary and guaranteed cash bonus expense. The Company generally recognizes compensation and benefits expenses over the related service period. On an annual basis, compensation and benefits comprise a significant portion of total expenses, with discretionary cash bonuses generally comprising a significant portion of total compensation and benefits. These cash bonuses are based on total annual revenues, which are significantly influenced by the amount of incentive income the Company earns in the year. Annual discretionary cash bonuses are generally determined and expensed in the fourth quarter each year.
Och-Ziff Operating Group D Units
The Och-Ziff Operating Group D Units are not considered equity under GAAP and no equity-based compensation expense is recognized related to these units when they are granted. Distributions to holders of Och-Ziff Operating Group D Units are included within compensation and benefits in the consolidated statements of comprehensive income (loss). These distributions are accrued in the quarter in which the related income was earned and are paid out the following quarter at the same time distributions on the Och-Ziff Operating Group A Units and dividends on the Company’s Class A Shares are paid.
F-17
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Profit-Sharing Arrangements
The Company also has profit-sharing arrangements whereby certain employees or executive managing directors are entitled to a share of incentive income distributed by certain funds. This incentive income is typically paid to the Company and a portion paid to the participant as investments held by these funds are realized. The Company defers the recognition of any portion of this incentive income to the extent it is subject to clawback and relates to a fund that is not consolidated. See “—Incentive Income” above. To the extent that the payments to the employees or executive managing directors are probable and reasonably estimable, the Company accrues these payments as compensation expense for GAAP purposes, which may occur prior to the recognition of the related incentive income.
Equity-Based Compensation
Compensation expense related to equity-based payments is based on the grant-date fair value and recognized on a straight-line basis over the requisite service period for awards with both cliff vesting and graded vesting. An estimated forfeiture assumption is based on current and historical information and is reviewed periodically for any necessary adjustments. A change in the forfeiture assumption is recognized in the period in which such change occurs. See Note 10 for additional information on the Company’s equity-based compensation plan.
Partner Incentive Plan
In August 2012, upon the recommendation and approval of the Compensation Committee of the Board, the Board approved The Och-Ziff Capital Management Group LLC 2012 Partner Incentive Plan (the “PIP”) in order to further the retention of its executive managing directors. Mr. Och will not participate in the PIP, but will continue to participate in the Company’s profits solely through distributions from his existing equity ownership stake.
Under the terms of the PIP, certain executive managing directors at the time of the IPO may be eligible to receive discretionary cash awards and discretionary grants of Och-Ziff Operating Group D Units over a five-year period that commenced in 2013. Each year, an aggregate of up to 2,770,749 Och-Ziff Operating Group D Units may be granted under the PIP to the participating executive managing directors, for an aggregate of up to 13,853,745 over the five-year period if a determination is made each year to award the maximum number of units. Aggregate discretionary cash awards under the PIP for each year will be capped at 10% of the Company’s incentive income earned during that year, up to a maximum aggregate amount of $39.6 million. The participating executive managing directors, collectively, may receive a maximum aggregate amount of up to $197.8 million over the five-year period if the Company earns enough incentive income each year and if a determination is made each year to award the maximum amount. In 2013, the Company granted 2,770,749 Och-Ziff Operating Group D Units and aggregate cash awards of $39.6 million to participating executive managing directors under the PIP.
Reorganization Expenses
Reorganization expenses relate to the amortization of Och-Ziff Operating Group A Units held by the Company’s executive managing directors that were issued in connection with the Reorganization. See Note 10 for additional information.
Income Taxes
Deferred income tax assets and liabilities resulting from temporary differences between the GAAP and tax bases of assets and liabilities are measured at the balance sheet date using enacted income tax rates expected to apply to taxable income in the years the temporary differences are expected to reverse. The Company offsets deferred income tax assets and liabilities for presentation in its consolidated balance sheets when such assets and liabilities are within the same legal entity and related to the same taxing jurisdiction.
The realization of deferred income tax assets depends upon the existence of sufficient taxable income within the carryback or carryforward periods under the tax law in the applicable tax jurisdiction. A valuation allowance is established when management determines, based on available information, that it is more likely than not that deferred income tax assets will not be realized. Significant judgment is required in determining whether a valuation allowance should be established, as well as the amount of such allowance.
Future events such as changes in tax legislation could have an impact on the provision for income taxes and the effective income tax rate. Any such changes could significantly affect the amounts reported in the consolidated financial statements in the year these changes occur.
F-18
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
The Company records interest and penalties related to income taxes within income taxes in the consolidated statements of comprehensive income (loss).
Cash and Cash Equivalents
The Company considers all highly liquid investments that have an original maturity from the date of purchase of three months or less to be cash equivalents. Cash equivalents are recorded at amortized cost plus accrued interest. As of December 31, 2013, substantially all of the Company’s cash and cash equivalents were held with one major financial institution, and therefore exposes the Company to a certain degree of credit risk. The Company records cash and cash equivalents of the consolidated Och-Ziff funds held at prime brokers within other assets of Och-Ziff funds in the consolidated balance sheets.
Fixed Assets
Fixed assets consist of a corporate aircraft, leasehold improvements, computer hardware and software, furniture, fixtures and office equipment. Fixed assets are recorded at cost less accumulated depreciation and amortization within other assets, net in the consolidated balance sheets. The Company evaluates fixed assets for impairment whenever events or changes in circumstances indicate that an asset’s carrying value may not be fully recovered. Depreciation and amortization of fixed assets are calculated using the straight-line method over the following depreciable lives: fifteen years for the corporate aircraft, the shorter of the related lease term or expected useful life for leasehold improvements and three to seven years for all other fixed assets.
Goodwill and Other Intangible Assets
Goodwill and other intangible assets are included within other assets, net in the Company’s consolidated balance sheets and relate to the Company’s 2007 acquisition of an additional 25% interest in its domestic real estate operations from one of its joint venture partners. The Company tests goodwill for impairment on an annual basis or more frequently if events or circumstances justify conducting an interim test. Intangible assets, which are being amortized through 2016, relate to management agreements the Company has with the domestic real estate funds and the Company’s rights to future earnings related to the real estate business. The estimated future annual amortization expense related to these intangible assets is expected to be approximately $748 thousand through 2015 and $613 thousand in 2016. Amortization expense related to these intangible assets of $748 thousand, $751 thousand and $748 thousand was incurred for the years ended December 31, 2013, 2012 and 2011, respectively, and is included within general, administrative and other in the consolidated statements of comprehensive income (loss).
Foreign Currency
The functional currency of each of the Company’s consolidated subsidiaries is the U.S. dollar. Monetary assets and liabilities denominated in foreign currencies are translated into U.S. dollars at the closing rates of exchange on the balance sheet date. Transaction gains and losses are recorded as other expenses within general, administrative and other in the consolidated statements of comprehensive income (loss).
Policies of Consolidated Och-Ziff Funds
Certain Och-Ziff funds in which the Company has only minor ownership interests, if any, are included in the Company’s consolidated financial statements. The majority ownership interests in these funds are held by the investors in the funds, and these interests are reflected within noncontrolling interests in the consolidated balance sheets. The management fees and incentive income from the consolidated Och-Ziff funds are eliminated in consolidation (except for management fees from certain funds, whereby such fees are paid directly to the Company by the fund investors); however, the Company’s share of the earnings from these funds is increased by the amount of the eliminated management fees and incentive income.
The Och-Ziff funds are considered investment companies for GAAP purposes. Pursuant to specialized accounting guidance for investment companies and the retention of that guidance in the Company’s consolidated financial statements, the investments held by the consolidated Och-Ziff funds’ are reflected in the consolidated financial statements at their estimated fair values. As discussed above, the Company has elected the fair value option for the notes payable of its consolidated CLOs.
F-19
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Income of Consolidated Och-Ziff Funds
Income of consolidated Och-Ziff funds consists of interest income, dividend income and other miscellaneous items. Interest income is recorded on an accrual basis. The consolidated Och-Ziff funds may place debt obligations, including bank debt and other participation interests, on non-accrual status and, when necessary, reduce current interest income by charging off any interest receivable when collection of all or a portion of such accrued interest has become doubtful. The balance of non-accrual investments as of December 31, 2013 and 2012, and the impact of such investments for the years ended December 31, 2013, 2012 and 2011, were not significant. Dividend income is recorded on the ex-dividend date, net of withholding taxes, if applicable.
Expenses of Consolidated Och-Ziff Funds
Expenses of consolidated Och-Ziff funds consist of interest expense and other miscellaneous expenses. Interest expense is recorded on an accrual basis.
Investments, at Fair Value
Investments, at fair value include the consolidated Och-Ziff funds’ investments in securities, investment companies and other investments. Securities transactions are recorded on a trade-date basis. Realized gains and losses on sales of investments of the Och-Ziff funds are determined on a specific identification basis and are included within net gains of consolidated Och-Ziff funds in the consolidated statements of comprehensive income (loss). Premiums and discounts are amortized and accreted, respectively, to income of consolidated Och-Ziff funds in the consolidated statements of comprehensive income (loss).
The fair value of investments held by the consolidated Och-Ziff funds is based on observable market prices when available. Such values are generally based on the last reported sales price as of the reporting date. In the absence of readily ascertainable market values, the determination of the fair value of investments held by the consolidated Och-Ziff funds may require significant judgment or estimation. For information regarding the valuation of these assets, see Note 4.
Securities Sold Under Agreements to Repurchase
Securities sold under agreements to repurchase (“repurchase agreements”) by the consolidated Och-Ziff funds are accounted for as collateralized financing transactions. The funds provide securities to counterparties to collateralize amounts borrowed under repurchase agreements on terms that permit the counterparties to repledge or resell the securities to others. Cash borrowed by the funds is included within securities sold under agreements to repurchase in the consolidated balance sheets. The fair value of securities transferred to counterparties under such agreements totaled $422.1 million and $358.7 million as of December 31, 2013 and 2012, respectively, and are included in investments, at fair value in the consolidated balance sheets. Interest expense incurred on these transactions is included within expenses of consolidated Och-Ziff funds in the consolidated statements of comprehensive income (loss).
Notes Payable of Consolidated CLOs, at Fair Value
The Company has elected the fair value option for the senior secured and subordinated notes payable of consolidated CLOs. The Company has elected the fair value option for the notes payable of the consolidated CLOs to mitigate accounting mismatches between the carrying values of the assets and liabilities of the CLOs. Changes in fair value of the notes are included within net gains of consolidated Och-Ziff funds in the consolidated statements of comprehensive income (loss).
Recently Adopted Accounting Pronouncements
In December 2011, the FASB issued ASU 2011-11, Disclosures about Offsetting Assets and Liabilities. ASU 2011-11, as clarified by ASC 2013-01, Clarifying the Scope of Disclosures about Offsetting Assets and Liabilities, requires entities to disclose both gross and net information about derivative instruments, repurchase and reverse-repurchase agreements, and securities borrowing and lending transactions that are either (i) offset in the balance sheet, or (ii) subject to an enforceable master netting arrangement or similar arrangement, irrespective of whether they are offset in the balance sheet. In addition, ASU 2011-11 requires disclosure of collateral received and posted in connection with master netting agreements or similar arrangements. The requirements of ASU 2011-11 were effective for the Company beginning in the first quarter of 2013. The adoption of ASU 2011-11 did not have any impact on the Company’s financial position or results of operations, as ASU 2011-11 only affects disclosures about offsetting. No changes were made to the existing guidance on the offsetting of assets and liabilities in the Company’s balance sheet.
F-20
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Future Adoption of Accounting Pronouncements
In June 2013, the FASB issued ASU 2013-08, Financial Services—Investment Companies. ASU 2013-08 provides clarifying guidance to determine if an entity qualifies as an investment company. ASU 2013-08 also requires an investment company to measure noncontrolling interests in other investment companies at fair value. The following disclosures will also be required upon adoption of ASU 2013-08: (i) whether an entity is an investment company and is applying the accounting and reporting guidance for investment companies; (ii) information about changes, if any, in an entity’s status as an investment company; and (iii) information about financial support provided or contractually required to be provided by an investment company to any of its investees. The requirements of ASU 2013-08 are effective for the Company beginning in the first quarter of 2014. The Company is currently evaluating the impact, if any, that these updates will have on its financial condition or results of operations.
3. | NONCONTROLLING INTERESTS |
Noncontrolling interests represent ownership interests in the Company’s subsidiaries held by parties other than the Company, and primarily relate to the Och-Ziff Operating Group A Units held by the Company’s executive managing directors and the Ziffs, and fund investors’ interests in the consolidated Och-Ziff funds. Net income (loss) allocated to the Och-Ziff Operating Group A Units is driven by the earnings of the Och-Ziff Operating Group. Net income (loss) allocated to fund investors’ interests in consolidated Och-Ziff funds is driven by the earnings of those funds, including the net difference in the fair value of CLO assets and liabilities that are subsequently reclassified to appropriated retained earnings (deficit) on the consolidated balance sheets. See Note 2 for additional information.
The following table presents the components of the net income (loss) allocated to noncontrolling interests:
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| (dollars in thousands) | |
Och-Ziff Operating Group A Units | $ | 616,843 | | | $ | (538,055 | ) | | $ | (1,088,514 | ) |
Consolidated Och-Ziff funds | | 364,859 | | | | 266,341 | | | | 41,965 | |
Other | | 4,121 | | | | 9,514 | | | | 1,851 | |
| $ | 985,823 | | | $ | (262,200 | ) | | $ | (1,044,698 | ) |
| | | | | | | | | | | |
Redeemable noncontrolling interests | $ | 8,235 | | | $ | 1,692 | | | $ | - | |
The following table presents the activity in redeemable noncontrolling interests as presented in the consolidated balance sheets:
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | |
| (dollars in thousands) | |
Beginning balance | $ | 8,692 | | | $ | - | |
Capital contributions | | 59,656 | | | | 7,000 | |
Total comprehensive income | | 8,235 | | | | 1,692 | |
Ending Balance | $ | 76,583 | | | $ | 8,692 | |
Och-Ziff Operating Group Ownership
The Company’s interest in the Och-Ziff Operating Group increased to 35.9% as of December 31, 2013, from 19.2% at the time of the 2007 Offerings. Increases in the Company’s interest in the Och-Ziff Operating Group were driven by the issuance of 33,333,333 Class A Shares in the 2011 Offering. Additionally, the exchange of Och-Ziff Operating Group A Units for an equal number of Class A Shares and the issuance of Class A Shares under the Company’s Amended and Restated 2007 Equity Incentive Plan, primarily related to the vesting of Class A restricted share units (“RSUs”), also increased the Company’s interest in the Och-Ziff Operating Group. In the future, the Company expects to issue additional equity awards relating to Class A Shares under its 2013 Incentive Plan. The Company’s interest in the Och-Ziff Operating Group is expected to continue to increase over time as additional Class A Shares are issued upon the exchange of Och-Ziff Operating Group A Units and vesting of RSUs. These increases will be offset upon any conversion of Och-Ziff Operating Group D Units, which are not considered equity for GAAP purposes, into Och-Ziff Operating Group A Units.
F-21
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Och-Ziff Operating Group A Unit Exchanges
During the three years ended December 31, 2013, the Ziffs and certain former executive managing directors exchanged Och-Ziff Operating Group A Units for Class A Shares. These exchanges of Och-Ziff Operating Group A Units by former executive managing directors resulted in the cancellation of the related Class B Shares. As discussed in Note 1, the Ziffs do not hold any Class B Shares, and therefore there is no related cancellation of Class B Shares upon exchanges by the Ziffs.
In connection with these exchanges by former executive managing directors and the Ziffs, the Company recorded the following changes to shareholders’ equity:
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| Paid-in Capital | | | Noncontrolling Interests | | | Paid-in Capital | | | Noncontrolling Interests | | | Paid-in Capital | | | Noncontrolling Interests | |
| (dollars in thousands) | |
Deferred income tax assets resulting from exchanges, net of increases in the tax receivable agreement liability | $ | 13,638 | | | $ | - | | | $ | 2,927 | | | $ | - | | | $ | 6,073 | | | $ | 7,210 | |
Net capital reallocated from noncontrolling interests to the Company's paid-in capital | | (3,753 | ) | | | 3,753 | | | | (1,029 | ) | | | 1,029 | | | | (3,382 | ) | | | 3,382 | |
| $ | 9,885 | | | $ | 3,753 | | | $ | 1,898 | | | $ | 1,029 | | | $ | 2,691 | | | $ | 10,592 | |
Equity-Based Compensation
The table below presents the net amount of capital reallocated from noncontrolling interests to the Company due to increases in the Company’s ownership in the Och-Ziff Operating Group resulting from the vesting of RSUs that were settled in Class A Shares. These increases in the Company’s ownership were offset by grants of Och-Ziff Operating Group A Units made to executive managing directors subsequent to the 2007 Offerings, including the conversion of Och-Ziff Operating Group D Units into Och-Ziff Operating Group A Units. These capital reallocations are recorded within equity-based compensation in the statement of changes in shareholders’ equity.
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| (dollars in thousands) | |
Net capital reallocated from noncontrolling interests to the Company's paid-in capital | $ | 200 | | | $ | (748 | ) | | $ | (4,077 | ) |
Acquisition of Noncontrolling Interests
In December 2013, the Company restructured its real estate business so that it now wholly owns the entities related to the real estate business. Prior to the restructuring, the Company owned 75% of the equity in the real estate business and a noncontrolling partner held the remaining 25% equity interest. In connection with the restructuring, the noncontrolling partner received Och-Ziff Operating Group D Units subject to vesting. The restructuring was accounted for as an acquisition of noncontrolling interests, resulting in the reallocation of deficit capital of $2.6 million from noncontrolling interests to the Company’s paid in capital. The noncontrolling partner will continue to be entitled to a share of future incentive income earned from the real estate funds; however, these amounts will be treated as compensation expense for GAAP purposes.
Fair value represents the price that would be received upon the sale of an asset or paid to transfer a liability in an orderly transaction between market participants as of the measurement date (i.e., an exit price). Due to the inherent uncertainty of valuations of investments that are determined to be illiquid or do not have readily ascertainable fair values, the estimates of fair value may differ from the values ultimately realized, and those differences can be material.
F-22
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
GAAP prioritizes the level of market price observability used in measuring assets and liabilities at fair value. Market price observability is impacted by a number of factors, including the type of assets and liabilities and the specific characteristics of the assets and liabilities. Assets and liabilities with readily available, actively quoted prices or for which fair value can be measured from actively-quoted prices generally will have a higher degree of market price observability and lesser degree of judgment used in measuring fair value.
Assets and liabilities measured at fair value are classified into one of the following categories:
• | Level I – Fair value is determined using quoted prices that are available in active markets for identical assets or liabilities. The types of assets and liabilities that would generally be included in this category are certain listed equities, sovereign debt of developed nations and certain listed derivatives. |
• | Level II – Fair value is determined using quotations received from dealers making a market for these assets or liabilities (“broker quotes”), valuations obtained from independent third-party pricing services, the use of models or other valuation methodologies based on pricing inputs that are either directly or indirectly market observable as of the measurement date. Consideration is given to the nature of the broker quotes (e.g., indicative or executable). Assets and liabilities for which executable broker quotes are significant inputs in determining the fair value of an asset or liability are included within Level II. The types of assets and liabilities that would generally be included in this category are certain corporate bonds, certain credit default swap contracts, certain bank debt securities, certain commercial real estate debt, less liquid and restricted equity securities, forward contracts and certain over the-counter (“OTC”) derivatives. |
• | Level III – Fair value is determined using pricing inputs that are unobservable in the market and includes situations where there is little, if any, market activity for the asset or liability. The fair value of assets and liabilities in this category may require significant judgment or estimation in determining fair value of the assets or liabilities. The fair value of these assets and liabilities may be estimated using a combination of observed transaction prices, independent pricing services, relevant broker quotes, models or other valuation methodologies based on pricing inputs that are neither directly or indirectly market observable. Assets and liabilities for which indicative broker quotes are significant inputs in determining the fair value of an asset or liability are included within Level III. The types of assets and liabilities that would generally be included in this category include real estate investments, equity and debt securities issued by private entities, limited partnerships, certain corporate bonds, certain credit default swap contracts, certain bank debt securities, certain commercial real estate debt, certain OTC derivatives, residential and commercial mortgage-backed securities, asset-backed securities, collateralized debt obligations, as well as the notes payable of consolidated CLOs. |
In certain cases, the inputs used to measure fair value may fall into different levels of the fair value hierarchy. In such cases, an asset or liability’s level within the fair value hierarchy is based on the lowest level of input that is significant to the fair value measurement. The assessment of the significance of a particular input to the fair value measurement in its entirety requires judgment and considers factors specific to the asset or liability.
F-23
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Fair Value Measurements Categorized within the Fair Value Hierarchy
The following tables summarize the Company’s assets and liabilities measured at fair value on a recurring basis within the fair value hierarchy:
| As of December 31, 2013 | |
| Level I | | | Level II | | | Level III | | | Counterparty Netting of Derivative Contracts | | | Total | |
| (dollars in thousands) | |
Bank debt | $ | - | | | $ | 1,551,892 | | | $ | 1,180,831 | | | $ | - | | | $ | 2,732,723 | |
Real estate investments | | - | | | | - | | | | 633,311 | | | | - | | | | 633,311 | |
Residential mortgage-backed securities | | - | | | | - | | | | 400,510 | | | | - | | | | 400,510 | |
Collateralized debt obligations | | - | | | | - | | | | 205,026 | | | | - | | | | 205,026 | |
Investments in affiliated credit funds | | - | | | | - | | | | 188,454 | | | | - | | | | 188,454 | |
Energy and natural resources limited partnerships | | - | | | | - | | | | 158,759 | | | | - | | | | 158,759 | |
United States government obligations | | 97,741 | | | | - | | | | - | | | | - | | | | 97,741 | |
Commercial real estate debt | | - | | | | - | | | | 93,445 | | | | - | | | | 93,445 | |
Corporate bonds | | - | | | | 38,228 | | | | 817 | | | | - | | | | 39,045 | |
Asset-backed securities | | - | | | | - | | | | 34,627 | | | | - | | | | 34,627 | |
Commercial mortgage-backed securities | | - | | | | - | | | | 20,530 | | | | - | | | | 20,530 | |
Common and preferred stock | | - | | | | - | | | | 1,562 | | | | - | | | | 1,562 | |
Other investments | | 964 | | | | 87 | | | | 1,730 | | | | (96 | ) | | | 2,685 | |
Financial Assets, at Fair Value, Included Within Investments, at Fair Value | $ | 98,705 | | | $ | 1,590,207 | | | $ | 2,919,602 | | | $ | (96 | ) | | $ | 4,608,418 | |
| | | | | | | | | | | | | | | | | | | |
Senior secured notes payable of consolidated CLOs | $ | - | | | $ | - | | | $ | 2,508,338 | | | $ | - | | | $ | 2,508,338 | |
Subordinated notes payable of consolidated CLOs | | - | | | | - | | | | 255,639 | | | | - | | | | 255,639 | |
Notes payable of consolidated CLOs, at fair value | | - | | | | - | | | | 2,763,977 | | | | - | | | | 2,763,977 | |
Other liabilities, included within other liabilities of Och-Ziff funds | | 3,066 | | | | 19 | | | | 800 | | | | (96 | ) | | | 3,789 | |
Financial Liabilities, at Fair Value | $ | 3,066 | | | $ | 19 | | | $ | 2,764,777 | | | $ | (96 | ) | | $ | 2,767,766 | |
F-24
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
| As of December 31, 2012 (Restated) | |
| Level I | | | Level II | | | Level III | | | Counterparty Netting of Derivative Contracts | | | Total | |
| (dollars in thousands) | |
Bank debt | $ | - | | | $ | 650,084 | | | $ | 384,578 | | | $ | - | | | $ | 1,034,662 | |
Real estate investments | | - | | | | - | | | | 615,634 | | | | - | | | | 615,634 | |
Residential mortgage-backed securities | | 103 | | | | - | | | | 260,410 | | | | - | | | | 260,513 | |
Collateralized debt obligations | | - | | | | - | | | | 265,722 | | | | - | | | | 265,722 | |
Investments in affiliated credit funds | | - | | | | - | | | | 88,298 | | | | - | | | | 88,298 | |
Energy and natural resources limited partnerships | | - | | | | - | | | | 167,467 | | | | - | | | | 167,467 | |
United States government obligations | | 72,955 | | | | - | | | | - | | | | - | | | | 72,955 | |
Commercial real estate debt | | - | | | | - | | | | 151,275 | | | | - | | | | 151,275 | |
Asset-backed securities | | - | | | | - | | | | 12,234 | | | | - | | | | 12,234 | |
Commercial mortgage-backed securities | | - | | | | - | | | | 41,961 | | | | - | | | | 41,961 | |
Common and preferred stock | | - | | | | - | | | | 47,002 | | | | - | | | | 47,002 | |
Corporate bonds | | - | | | | 21,425 | | | | - | | | | - | | | | 21,425 | |
Other investments | | 457 | | | | 70 | | | | 183 | | | | (400 | ) | | | 310 | |
Financial Assets, at Fair Value, Included Within Investments, at Fair Value | $ | 73,515 | | | $ | 671,579 | | | $ | 2,034,764 | | | $ | (400 | ) | | $ | 2,779,458 | |
| | | | | | | | | | | | | | | | | | | |
Senior secured notes payable of consolidated CLOs | $ | - | | | $ | - | | | $ | 956,693 | | | $ | - | | | $ | 956,693 | |
Subordinated notes payable of consolidated CLOs | | - | | | | - | | | | 104,852 | | | | - | | | | 104,852 | |
Notes payable of consolidated CLOs, at fair value | | - | | | | - | | | | 1,061,545 | | | | - | | | | 1,061,545 | |
Other liabilities, included within other liabilities of Och-Ziff funds | | 374 | | | | 48 | | | | 1,087 | | | | (400 | ) | | | 1,109 | |
Financial Liabilities, at Fair Value | $ | 374 | | | $ | 48 | | | $ | 1,062,632 | | | $ | (400 | ) | | $ | 1,062,654 | |
F-25
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Reconciliation of Fair Value Measurements Categorized within Level III
The following table summarizes the changes in the Company’s Level III assets and liabilities (excluding notes payable of consolidated CLOs) for the year ended December 31, 2013:
| Balance as of December 31, 2012 (Restated) | | | Transfers In | | | Transfers Out | | | Investment Purchases | | | Investment Sales | | | Derivative Settlements | | | Net Gains (Losses) of Consolidated Och-Ziff Funds | | | Balance as of December 31, 2013 | |
| (dollars in thousands) | |
Bank debt | $ | 384,578 | | | $ | 38,683 | | | $ | (15,292 | ) | | $ | 1,620,678 | | | $ | (852,606 | ) | | $ | - | | | $ | 4,790 | | | $ | 1,180,831 | |
Real estate investments | | 615,634 | | | | - | | | | - | | | | 203,367 | | | | (328,543 | ) | | | - | | | | 142,853 | | | | 633,311 | |
Residential mortgage-backed securities | | 260,410 | | | | - | | | | - | | | | 276,765 | | | | (146,402 | ) | | | - | | | | 9,737 | | | | 400,510 | |
Collateralized debt obligations | | 265,722 | | | | - | | | | - | | | | 42,231 | | | | (150,195 | ) | | | - | | | | 47,268 | | | | 205,026 | |
Investments in affiliated credit funds | | 88,298 | | | | - | | | | - | | | | 186,578 | | | | (113,260 | ) | | | - | | | | 26,838 | | | | 188,454 | |
Energy and natural resources limited partnerships | | 167,467 | | | | - | | | | - | | | | 43,606 | | | | (58,866 | ) | | | - | | | | 6,552 | | | | 158,759 | |
Commercial real estate debt | | 151,275 | | | | - | | | | - | | | | 39,115 | | | | (101,586 | ) | | | - | | | | 4,641 | | | | 93,445 | |
Corporate bonds | | - | | | | - | | | | - | | | | 3,781 | | | | (3,148 | ) | | | - | | | | 184 | | | | 817 | |
Asset-backed securities | | 12,234 | | | | - | | | | - | | | | 63,515 | | | | (41,716 | ) | | | - | | | | 594 | | | | 34,627 | |
Commercial mortgage- backed securities | | 41,961 | | | | - | | | | - | | | | 14,130 | | | | (44,802 | ) | | | - | | | | 9,241 | | | | 20,530 | |
Common and preferred stock | | 47,002 | | | | - | | | | - | | | | 3,197 | | | | (56,050 | ) | | | - | | | | 7,413 | | | | 1,562 | |
Other investments (including derivatives, net) | | (904 | ) | | | - | | | | - | | | | - | | | | - | | | | (3,861 | ) | | | 5,695 | | | | 930 | |
Total Assets, at Fair Value | $ | 2,033,677 | | | $ | 38,683 | | | $ | (15,292 | ) | | $ | 2,496,963 | | | $ | (1,897,174 | ) | | $ | (3,861 | ) | | $ | 265,806 | | | $ | 2,918,802 | |
The following table summarizes the changes in the Company’s Level III assets and liabilities (excluding notes payable of consolidated CLOs) for the year ended December 31, 2012:
| (Restated) | |
| Balance as of December 31, 2011 | | | Investment Purchases | | | Investment Sales | | | Derivative Settlements | | | Net Gains (Losses) of Consolidated Och-Ziff Funds | | | Balance as of December 31, 2012 | |
| (dollars in thousands) | |
Bank debt | $ | - | | | $ | 570,191 | | | $ | (190,052 | ) | | $ | - | | | $ | 4,439 | | | $ | 384,578 | |
Real estate investments | | 308,019 | | | | 261,615 | | | | (40,906 | ) | | | - | | | | 86,906 | | | | 615,634 | |
Residential mortgage-backed securities | | 147,426 | | | | 322,278 | | | | (238,703 | ) | | | - | | | | 29,409 | | | | 260,410 | |
Collateralized debt obligations | | 44,060 | | | | 274,629 | | | | (97,516 | ) | | | - | | | | 44,549 | | | | 265,722 | |
Investments in affiliated credit funds | | - | | | | 108,193 | | | | (39,834 | ) | | | - | | | | 19,939 | | | | 88,298 | |
Energy and natural resources limited partnerships | | 100,827 | | | | 39,061 | | | | (5,820 | ) | | | - | | | | 33,399 | | | | 167,467 | |
Commercial real estate debt | | 82,439 | | | | 146,359 | | | | (67,571 | ) | | | - | | | | (9,952 | ) | | | 151,275 | |
Asset-backed securities | | - | | | | 15,028 | | | | (2,642 | ) | | | - | | | | (152 | ) | | | 12,234 | |
Commercial mortgage- backed securities | | 27,256 | | | | 31,686 | | | | (27,983 | ) | | | - | | | | 11,002 | | | | 41,961 | |
Common and preferred stock | | - | | | | 50,452 | | | | (6,815 | ) | | | - | | | | 3,365 | | | | 47,002 | |
Other investments (including derivatives, net) | | 2,885 | | | | - | | | | (2,576 | ) | | | (3,897 | ) | | | 2,684 | | | | (904 | ) |
Total Assets, at Fair Value | $ | 712,912 | | | $ | 1,819,492 | | | $ | (720,418 | ) | | $ | (3,897 | ) | | $ | 225,588 | | | $ | 2,033,677 | |
F-26
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
The Company assumes that any transfers between Level I, Level II or Level III during the period occur at the beginning of the period. Transfers out of Level III resulted from the fair values of certain securities becoming market observable as of year-end, with fair value determined through the use of independent pricing services. Transfers into Level III resulted from the valuation of certain investments with decreased market observability as of year-end, with fair values determined through the use of broker quotations.
The table below summarizes the net change in unrealized gains and losses on the Company’s Level III assets and liabilities (excluding notes payable of consolidated CLOs) held as of the reporting date. These gains and losses are included within net gains of consolidated Och-Ziff funds in the Company’s consolidated statements of comprehensive income (loss):
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | |
| (dollars in thousands) | |
Bank debt | $ | 2,606 | | | $ | 3,789 | |
Real estate investments | | 77,177 | | | | 82,491 | |
Residential mortgage-backed securities | | (8,546 | ) | | | 8,301 | |
Collateralized debt obligations | | 10,119 | | | | 24,522 | |
Investments in affiliated credit funds | | 10,990 | | | | 13,186 | |
Energy and natural resources limited partnerships | | (16,647 | ) | | | 32,371 | |
Commercial real estate debt | | 125 | | | | (13,686 | ) |
Corporate bonds | | 150 | | | | - | |
Asset-backed securities | | 1,302 | | | | (166 | ) |
Commercial mortgage-backed securities | | (2,424 | ) | | | 9,929 | |
Common and preferred stock | | 267 | | | | 2,858 | |
Other investments (including derivatives, net) | | 333 | | | | 1,684 | |
Total | $ | 75,452 | | | $ | 165,279 | |
Valuation Methodologies for Fair Value Measurements Categorized within Levels II and III
Real Estate Investments
Real estate investments are generally structured as equity, preferred equity, mezzanine debt, and participating debt in entities domiciled primarily in the United States and include investments in lodging, gaming, multifamily properties, retail, healthcare, distressed residential, senior housing, golf, parking, office buildings and land. The fair values of these investments are generally based upon discounting the expected cash flows from the investment or a cash flow multiple. In reaching the determination of fair value for investments, the Company considers many factors including, but not limited to: the operating cash flows and financial performance of the real estate investments relative to budgets or projections; property types; geographic locations; the physical condition of the asset; prevailing market capitalization rates; prevailing market discount rates; general economic conditions; economic conditions specific to the market in which the assets are located; the prevailing interest rate environment; the prevailing state of the debt markets; comparable public company trading multiples; independent third-party appraisals; available pricing data on comparable properties in the specific market in which the asset is located; expected exit timing and strategy; and any specific rights or terms associated with the investment.
The significant unobservable inputs used in the fair value measurement of the Company’s real estate investments are discount rates, cash flow growth rates, capitalization rates, the price per square foot, the absorption percentage per year and exit multiples. Significant increases (decreases) in the discount rates and capitalization rates in isolation would be expected to result in a significantly lower (higher) fair value measurement. Significant increases (decreases) in the cash flow growth rates, the price per square foot, the absorption percentage per year and exit multiples in isolation would be expected to result in a significantly higher (lower) fair value measurement. A change in the assumption used for price per square foot is generally accompanied by a directionally inverse change in the absorption percentage per year.
F-27
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Collateralized Debt Obligations; Residential and Commercial Mortgage-Backed Securities; Commercial Real Estate Debt; Common and Preferred Stock; Corporate Bonds; Asset-Backed Securities; Bank Debt; Subordinated Notes Payable of Consolidated CLOs
The fair value of investments in collateralized debt obligations, residential and commercial mortgage-backed securities, commercial real estate debt, common and preferred stock, corporate bonds, asset-backed securities, bank debt and subordinated notes payable of consolidated CLOs that do not have readily ascertainable fair values is generally determined using broker quotes or valuations from independent pricing services. For month-end valuations, the Company generally receives one to four broker quotes for each security, depending on the type of security being valued. These broker quotes are generally non-binding or indicative in nature. The Company verifies that these broker quotes are reflective of fair value as defined in GAAP generally through procedures such as comparison to independent pricing services, back testing procedures, review of stale pricing reports and performance of other due diligence procedures as may be deemed necessary. Historically, the Company has only adjusted a small number of broker quotes when used in determining final valuations for securities as a result of these procedures.
To the extent broker quotes are not available or deemed unreliable, the methods and procedures to value these investments may include, but are not limited to: obtaining and using other additional broker quotes deemed reliable; using independent pricing services; performing comparisons with prices of comparable or similar securities; obtaining valuation-related information from the issuers; calculating the present value of future cash flows; assessing other analytical data and information relating to these investments that is an indication of their value; obtaining information provided by third parties; reviewing the amounts invested in these investments; and evaluating financial information provided by the management of these investments. Market data is used to the extent that it is observable and considered reliable.
The significant unobservable inputs used in the fair value measurement of the Company’s residential mortgage-backed securities, commercial real estate debt, corporate bonds, asset-backed securities and bank debt that is not valued using broker quotes are discount rates, credit spreads, comparability adjustments and yields. Significant increases (decreases) in the discount rates, credit spreads, comparability adjustments and yields in isolation would be expected to result in a significantly lower (higher) fair value measurement.
Energy and Natural Resources Limited Partnerships
The fair value of energy and natural resources limited partnerships are generally determined using discounted cash flows when assets are producing oil or gas, or when it is reasonably certain that an asset will be capable of producing oil or gas. Acreage with proven undeveloped, probable or possible reserves are valued using prevailing prices of comparable properties, and may include adjustments for other assets or liabilities such as seismic data, equipment, and cash held by the investee. Certain natural resource assets may also be valued using scenario analyses and sum of the parts analyses.
The fair value for certain energy and natural resources limited partnership investments is based on the net asset value of the underlying fund. This amount represents a certain consolidated fund’s investment into another fund managed by the Company. The investee invests primarily in energy and natural resource investments. The fund may not redeem its investment into the investee prior to liquidation. The fund will receive distributions from the investee as investments are sold, the timing of which cannot be estimated. The consolidated fund has $50.0 million of unfunded commitments that will be funded by capital contributions from investors in the fund, as the Company is not an investor in the fund.
The significant unobservable inputs used in the fair value measurement of the Company’s energy and natural resources limited partnerships are discount rates, EBITDA multiples, price per acre, production multiples, EV/risked prospective resources, price of natural gas per thousand cubic feet, price of oil per barrel, scenario analysis weightings, well risking, energy differentials. Significant increases (decreases) in the discount rates, well risking and energy differentials in isolation would be expected to result in a lower (higher) fair value measurement. Significant increases (decreases) in the EBITDA multiples, price per acre, production multiples, EV/risked prospective resources, price of natural gas per thousand cubic feet and price of oil per barrel in isolation would be expected to result in a significantly higher (lower) fair value measurement. Significant adjustments to the scenario analysis weightings would be expected to result in an adjustment to the fair value based on the qualitative analysis of the weightings selection.
Investments in Affiliated Credit Funds
The fair value of investments in affiliated credit funds relates to consolidated feeder funds’ investments into their related master funds. The Company is not an investor of these feeder funds or master funds. The fair value of these investments is based on the consolidated feeder funds’ proportionate share of the respective master funds’ net asset value. These master funds invest primarily in credit-related strategies. Approximately 39% of these investments can be redeemed and paid to investors in the feeder fund after an initial
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OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
lock-up period of one to three years, after which the feeder fund may redeem its investment on a quarterly basis upon a 90-day prior written notice. The Company, as investment manager of the master fund, has the option (not exercised to date) to suspend redemptions in certain situations. The remaining 61% relates to a feeder fund that is not able to redeem its investment in the master fund prior to liquidation, the timing of which cannot be estimated. The feeder fund will receive distributions from the master fund as investments are sold, the timing of which cannot be estimated due to the illiquid nature of the investments held by the master fund. The consolidated feeder funds have $34.8 million of unfunded commitments that will be funded by capital contributions from investors in the feeder funds, as the Company is not an investor in the feeder funds or master funds.
Senior Secured Notes Payable of Consolidated CLOs
The fair value of senior secured notes payable of consolidated CLOs is determined using discounted cash flows. The significant unobservable inputs used in the fair value measurement of the senior secured notes payable of consolidated CLOs are interest rates, loan default rates, loan prepayment rates, loan recovery rates and reinvestment prices. Significant increases (decreases) in the interest rates, loan default rates, loan prepayment rates, loan loss severity and reinvestment prices in isolation would be expected to result in a significantly lower (higher) fair value measurement. A change in the assumption used for interest rates is generally accompanied by a directionally similar change in loan default rates, and a directionally inverse change in loan prepayment rates.
Information about Significant Inputs Used in Fair Value Measurements Categorized within Level III
The assets and liabilities presented in the tables below belong to the investors in the consolidated funds, as the Company has a minimal, if any, investment in such funds.
The table below summarizes information about the significant unobservable inputs used in determining the fair value of the Level III assets and liabilities held by the consolidated funds as of December 31, 2013.
| | Fair Value at | | | | | | | | | |
| | December 31, 2013 | | | | | | | Range | |
Type of Investment or Liability | | (in thousands) | | | Valuation Technique | | Unobservable Input | | (Weighted-Average) | |
Bank debt | | $ | 1,159,302 | | | Independent pricing services | | n/a | | | | |
| | | 15,360 | | | Market comparables | | Yield | | | 13% | |
| | | 6,169 | | | Broker quotes | | n/a | | | | |
Real estate investments | | $ | 600,690 | | | Discounted cash flow | | Discount rate | | 5% to 36% (21%) | |
| | | | | | | | Cash flow growth rate | | -22% to 137% (3%) | |
| | | | | | | | Capitalization rate | | 5% to 14% (8%) | |
| | | | | | | | Price per square foot | | $55.49 to $750.00 ($186.69) | |
| | | | | | | | Absorption rate per year | | 1% to 27% (13%) | |
| | | | | | | | Exit multiple | | 6.1x | |
| | | 32,621 | | | Market comparables | | Capitalization rate | | | 7% | |
Residential mortgage-backed securities | | $ | 385,860 | | | Broker quotes | | n/a | | | | |
| | | 14,650 | | | Discounted cash flow | | Discount rate | | 11% to 21% (17%) | |
| | | | | | | | Credit spread | | 520 to 1225 bps (960bps) | |
Collateralized debt obligations | | $ | 205,026 | | | Broker quotes | | n/a | | | | |
Investments in affiliated credit funds | | $ | 188,454 | | | Net asset value | | n/a | | | | |
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DECEMBER 31, 2013
| | Fair Value at | | | | | | | | | |
| | December 31, 2013 | | | | | | | Range | |
Type of Investment or Liability | | (in thousands) | | | Valuation Technique | | Unobservable Input | | (Weighted-Average) | |
Energy and natural resources limited partnerships | | $ | 106,149 | | | Net asset value | | n/a | | | | |
| | | 25,903 | | | Scenario analysis | | Discount rate | | | 10% | |
| | | | | | | | EBITDA multiple | | 6.3x | |
| | | | | | | | Price of natural gas per thousand cubic feet | | $ | 4.43 | |
| | | | | | | | Price of oil per barrel | | $ | 80.00 | |
| | | | | | | | Price per acre | | $ | 1,750.00 | |
| | | | | | | | Production multiple (price per thousand cubic feet equivalent per day) | | $ | 6,250.00 | |
| | | 18,522 | | | Sum of the parts | | Discount rate | | | 15% | |
| | | | | | | | EBITDA multiple | | 4.5x to 7.5x (6.0x) | |
| | | | | | | | EV/risked prospective resources | | 1.0x to 1.5x (1.3x) | |
| | | | | | | | Price of natural gas per thousand cubic feet | | $ | 4.43 | |
| | | | | | | | Price of oil per barrel | | $ | 80.00 | |
| | | | | | | | Price per acre | | $50.00 to $500.00 ($459.45) | |
| | | | | | | | Scenario analysis weightings | | 25% to 75% (50%) | |
| | | | | | | | Well risking | | | 75% | |
| | | 8,185 | | | Discounted cash flow | | Discount rate | | | 15% | |
| | | | | | | | Energy differentials | | | 7% | |
| | | | | | | | Price of natural gas per thousand cubic feet | | $ | 4.43 | |
| | | | | | | | Price of oil per barrel | | $ | 80.00 | |
Commercial real estate debt | | $ | 57,808 | | | Market comparables | | Comparability adjustment | | | 2% | |
| | | | | | | | Discount rate | | | 50% | |
| | | | | | | | Yield | | 10% to 14% (12%) | |
| | | 30,604 | | | Discounted cash flow | | Discount rate | | | 18% | |
| | | 5,033 | | | Independent pricing services | | n/a | | | | |
Corporate bonds | | $ | 427 | | | Market comparables | | Yield | | | 16% | |
| | | 390 | | | Broker quotes | | n/a | | | | |
Asset-backed securities | | $ | 29,380 | | | Broker quotes | | n/a | | | | |
| | | 5,247 | | | Discounted cash flow | | Discount rate | | | 15% | |
Commercial mortgaged-backed securities | | $ | 20,530 | | | Broker quotes | | n/a | | | | |
Common and preferred stock | | $ | 1,562 | | | Broker quotes | | n/a | | | | |
Senior secured notes payable of consolidated CLOs | | $ | 2,508,338 | | | Discounted cash flow | | Interest rate | | | 5% | |
| | | | | | | | Loan default rate | | | 2% | |
| | | | | | | | Loan loss severity | | | 20% | |
| | | | | | | | Loan prepayment rate | | | 20% | |
| | | | | | | | Reinvestment price | | $ | 99.50 | |
Subordinated notes payable of consolidated CLOs | | $ | 255,639 | | | Broker quotes | | n/a | | | | |
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NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
The table below summarizes information about the significant unobservable inputs used in determining the fair value of the Level III assets and liabilities held by the consolidated funds as of December 31, 2012.
| | Fair Value at | | | | | | | | | |
| | December 31, 2012 | | | | | | | | | |
Type of Investment or Liability | | (Restated) (in thousands) | | | Valuation Technique | | Unobservable Input | | Range (Weighted-Average) | |
Bank debt | | $ | 307,671 | | | Independent pricing services | | n/a | | | | |
| | | 64,334 | | | Broker quotes | | n/a | | | | |
| | | 12,573 | | | Invested capital | | n/a | | | | |
Real estate investments | | $ | 521,571 | | | Discounted cash flow | | Discount rate | | 10% to 35% (22%) | |
| | | | | | | | Cash flow growth rate | | 1% to 10% (2%) | |
| | | | | | | | Capitalization rate | | 7% to 10% (8%) | |
| | | | | | | | Price per square foot | | $46.42 to $604.78 ($191.95) | |
| | | | | | | | Absorption rate per year | | 2% to 43% (18%) | |
| | | | | | | | Exit multiple | | 6.0x | |
| | | 90,903 | | | Cash held by investee | | n/a | | | | |
| | | 3,160 | | | Invested capital | | n/a | | | | |
Residential mortgage-backed securities | | $ | 238,178 | | | Broker quotes | | n/a | | | | |
| | | 22,232 | | | Invested capital | | n/a | | | | |
Collateralized debt obligations | | $ | 265,722 | | | Broker quotes | | n/a | | | | |
Investments in affiliated credit funds | | $ | 88,298 | | | Net asset value | | n/a | | | | |
Energy and natural resources limited partnerships | | $ | 123,243 | | | Net asset value | | n/a | | | | |
| | | 38,090 | | | Invested capital | | n/a | | | | |
| | | 6,134 | | | Discounted cash flow | | Discount rate | | | 15% | |
| | | | | | | | Energy differential | | | 10% | |
| | | | | | | | Price of natural gas per thousand cubic feet | | $ | 4.90 | |
| | | | | | | | Price of oil per barrel | | $ | 80.00 | |
Commercial real estate debt | | $ | 85,111 | | | Invested capital | | n/a | | | | |
| | | 43,299 | | | Broker quotes | | n/a | | | | |
| | | 22,865 | | | Independent pricing services | | n/a | | | | |
Asset-backed securities | | $ | 12,234 | | | Broker quotes | | n/a | | | | |
Commercial mortgaged-backed securities | | $ | 41,961 | | | Broker quotes | | n/a | | | | |
Common and preferred stock | | $ | 37,162 | | | Broker quotes | | n/a | | | | |
| | | 9,840 | | | Invested capital | | n/a | | | | |
Senior secured notes payable of consolidated CLOs | | $ | 956,693 | | | Discounted cash flow | | Interest rate | | | 5% | |
| | | | | | | | Loan default rate | | | 2% | |
| | | | | | | | Loan loss severity | | | 20% | |
| | | | | | | | Loan prepayment rate | | | 20% | |
| | | | | | | | Reinvestment price | | $ | 99.50 | |
Subordinated notes payable of consolidated CLOs | | $ | 104,852 | | | Broker quotes | | n/a | | | | |
Valuation Process for Fair Value Measurements Categorized within Level III
The Company has established an internal control infrastructure over the valuation of financial instruments that includes ongoing independent oversight by its Financial Controls Group and Valuation Committee, as well as periodic audits by the Company’s Internal Audit Group. These control functions are segregated from the trading and investing functions.
The Valuation Committee is responsible for developing valuation policies to help ensure that all of the funds’ investments reflect fair values, as well as providing oversight of the valuation process. These valuation policies and procedures include, but are not limited to the following: determining the pricing sources used to value specific investment classes; the selection of independent pricing services; the
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OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
periodic review of due diligence materials of independent pricing services; and the fair value hierarchy coding of the funds’ investments. The Valuation Committee reviews a variety of reports on a monthly basis, which include, but are not limited to the following: summaries of the sources used to determine the value of the funds’ investments; summaries of the fair value hierarchy of the funds’ investments; and variance reports that compare the values of investments to independent pricing services. The Valuation Committee is comprised of non-investment professionals, and may obtain input from investment professionals for consideration in carrying out its responsibilities.
The Financial Controls Group is responsible for ensuring compliance with the valuation policies and preparing the monthly valuation reports reviewed by the Valuation Committee. The Financial Controls Group’s other responsibilities include, but are not limited to the following: preparation and distribution of daily profit and loss reports; overseeing the collection and evaluation of counterparty prices, broker-dealer quotations, exchange prices and third party pricing feeds; performing back testing by comparing prices observed in executed transactions to previous day valuations and/or pricing service providers on a weekly and monthly basis; preparing due diligence report reviews on independent pricing services on an annual or as needed basis; and assisting the Valuation Committee in developing valuation policies.
The Internal Audit Group employs a risk-based program of audit coverage that is designed to provide an independent assessment of the design and effectiveness of controls over the Company’s operations, regulatory compliance, valuation of financial instruments and reporting. Additionally, the Internal Audit Group meets with management periodically to evaluate and provide guidance on the existing risk framework and control environment assessments.
Monthly procedures have been established for Level III investments to compare unobservable inputs to observable inputs for similar positions, review subsequent market activities, perform comparisons of actual versus projected cash flows, and discuss the valuation methodology, including pricing techniques when applicable, with investment professionals. Independent pricing services may be used to corroborate the Company’s internal valuations. Investment professionals and members of the Financial Controls Group review a daily profit and loss report, as well as other periodic reports that analyze the profit and loss and related asset class exposure of the funds’ investments.
Fair Value of Delayed Draw Term Loan
Management estimates that the fair value of the $384.2 million outstanding under the Company’s delayed draw term loan agreement entered into in November 2011 (the “Delayed Draw Term Loan”) was approximately 95% of its carrying value as of December 31, 2013, based on an analysis of comparable issuers. This fair value measurement would be categorized as Level III within the fair value hierarchy.
5. | BALANCE SHEET OFFSETTING |
In the ordinary course of business, certain consolidated funds have entered into certain transactions which are subject to master agreements that provide for payment netting and that, in the case of a default or similar event with respect to the counterparty to the master agreement, provide for netting across transactions. Generally, upon a counterparty default, the fund can terminate all transactions under the master agreement and set off amounts it owes across all transactions under a particular master agreement against collateral it has received under such master agreement; provided, however, that in the case of certain defaults, the fund may only be able to terminate and setoff solely with respect to the transactions affected by the default. Generally, the funds party to these agreements manage cash and securities collateral on a counterparty basis as permitted under each master agreement.
The table below presents the repurchase agreements that are set off, if any, as well as securities transferred to counterparties related to those repurchase agreements (capped to not reduce below zero the net amount presented). No other material financial instruments were subject to master netting agreements or other similar agreements.
Securities Sold Under Agreements to Repurchase | | Gross Amounts of Recognized Liabilities | | | Gross Amounts Offset in the Consolidated Balance Sheet | | | Net Amounts of Liabilities in the Consolidated Balance Sheet | | | Securities Transferred | | | Net Amount | |
| | (dollars in thousands) | |
As of December 31, 2013 | | $ | 257,691 | | | | - | | | | 257,691 | | | | 257,691 | | | $ | - | |
As of December 31, 2012 | | $ | 223,543 | | | | - | | | | 223,543 | | | | 223,543 | | | $ | - | |
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OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
6. | VARIABLE INTEREST ENTITIES |
In the ordinary course of business, the Company sponsors the formation of VIEs. These VIEs generally consist of the following categories: funds, including CLOs, and joint ventures. The Company has not recorded any liabilities with respect to VIEs that are not consolidated.
Funds
Many of the Company’s funds, including its CLOs, are VIEs. The Company generally serves as the general partner or the investment or collateral manager with decision-making rights for these entities. Substantially all of the funds that are VIEs managed by the Company qualify for the deferral granted under ASU 2010-10, Amendments to Statement 167 for Certain Investment Funds. Accordingly, the Company’s determination of whether it is the primary beneficiary of a fund that is a VIE is generally based on identifying the variable interest holder that is exposed to the majority of the expected losses or receives a majority of the expected residual returns. Fund investors are entitled to substantially all of the economics of these VIEs with the exception of management fees and incentive income, if any, earned by the Company. Accordingly, the determination of whether the Company is the primary beneficiary of these entities is not impacted by changes in the underlying assumptions made regarding future results or expected cash flows of these VIEs.
The Company acts as collateral manager for CLOs that are VIEs. CLOs are entities that issue collateralized notes that offer investors the opportunity for returns that vary commensurately with the risk they assume. The notes issued by the CLOs are generally backed by asset portfolios consisting of loans or other debt. The Company receives collateral management fees for acting as collateral manager to the CLOs, and may earn incentive income based on the performance of the CLOs, subject to hurdle rates.
The deferral granted in ASU 2010-10 does not apply to CLOs. Accordingly, the determination of whether the Company is the primary beneficiary that would consolidate a CLO is based on a qualitative assessment to determine whether the Company, as collateral manager, has (i) the power to direct the activities of the CLO that most significantly impact its economic performance, and (ii) the obligations to absorb losses or the right to receive benefits from the CLO that could potentially be significant to the CLO. The Company determined that it possesses the power to direct the activities of the CLOs that most significantly impact the CLOs’ economic performance through its role in managing collateral and credit risk as the collateral manager. In addition, the Company determined that it has the right to receive benefits from the CLOs that could potentially be significant, on a quantitative and qualitative basis, because of the management fees and incentive income the Company could earn from the CLOs, as well as the purpose and design of the CLOs. As a result, the Company consolidates the CLOs it manages.
The following table presents the assets and liabilities of funds that are VIEs and consolidated by the Company:
| December 31, | |
| 2013 | | | 2012 (Restated) | |
| CLOs | | | Other Funds | | | CLOs | | | Other Funds | |
| (dollars in thousands) | |
Assets | | | | | | | | | | | | | | | |
Assets of consolidated Och-Ziff funds: | | | | | | | | | | | | | | | |
Investments, at fair value | $ | 2,749,422 | | | $ | 607,823 | | | $ | 1,034,833 | | | $ | 585,537 | |
Other assets of Och-Ziff funds | | 43,832 | | | | 20,736 | | | | 33,108 | | | | 17,973 | |
Total Assets | $ | 2,793,254 | | | $ | 628,559 | | | $ | 1,067,941 | | | $ | 603,510 | |
| | | | | | | | | | | | | | | |
Liabilities | | | | | | | | | | | | | | | |
Liabilities of consolidated Och-Ziff funds: | | | | | | | | | | | | | | | |
Notes payable of consolidated CLOs, at fair value | $ | 2,763,977 | | | $ | - | | | $ | 1,061,545 | | | $ | - | |
Securities sold under agreements to repurchase | | - | | | | 49,304 | | | | - | | | | 65,449 | |
Other liabilities of Och-Ziff funds | | 13,293 | | | | 2,550 | | | | 8,470 | | | | 1,993 | |
Total Liabilities | $ | 2,777,270 | | | $ | 51,854 | | | $ | 1,070,015 | | | $ | 67,442 | |
The assets presented in the table above belong to the investors in those funds, are available for use only by the fund to which they belong, and are not available for use by the Company. The consolidated funds have no recourse to the general credit of the Company with respect to any liability. The Company also consolidates funds that are not VIEs, and therefore the assets and liabilities of those funds are not included in the table above.
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OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
The Company’s involvement with funds that are VIEs and not consolidated by the Company is generally limited to providing asset management services. The Company’s exposure to loss from these entities is limited to a decrease in the management fees and incentive income that may be earned in future periods. The net assets of these VIEs were $33.7 billion and $27.7 billion as of December 31, 2013 and 2012, respectively. The Company does not provide, nor is it required to provide, any type of financial or other support to these entities. The Company’s variable interests related to these VIEs relate primarily to management fees and incentive income earned from these entities. As of December 31, 2013 and 2012, the only assets arising from these variable interests related to income and fees receivable of $574.1 million and $392.9 million, respectively.
Joint Ventures
The Company holds a variable interest in a joint venture that is a VIE. The Company’s exposure to loss for this joint venture is limited to its investments in the entity, which totaled $6.7 million and $4.7 million as of December 31, 2013 and 2012, respectively, and is recorded within other assets in the Company’s consolidated balance sheets.
The following table presents the components of other assets, net as reported in the consolidated balance sheets:
| December 31, | |
| 2013 | | | 2012 (Restated) | |
| (dollars in thousands) | |
Fixed Assets: | | | | | | | |
Corporate aircraft | $ | 22,600 | | | $ | 22,600 | |
Leasehold improvements | | 21,714 | | | | 21,579 | |
Computer hardware and software | | 21,165 | | | | 18,682 | |
Furniture, fixtures and equipment | | 3,146 | | | | 3,123 | |
Accumulated depreciation and amortization | | (52,416 | ) | | | (45,139 | ) |
Fixed assets, net | | 16,209 | | | | 20,845 | |
Goodwill | | 22,691 | | | | 22,691 | |
Prepaid expenses | | 18,165 | | | | 10,530 | |
Receivables | | 10,270 | | | | 2,107 | |
Investments in joint ventures | | 6,745 | | | | 4,654 | |
Refundable security deposits | | 5,287 | | | | 5,765 | |
Investments in Och-Ziff funds | | 3,192 | | | | 1,658 | |
Intangible assets, net | | 2,110 | | | | 2,859 | |
Other | | 881 | | | | 1,129 | |
Total Other Assets, Net | $ | 85,550 | | | $ | 72,238 | |
The following table presents the components of other liabilities as reported in the consolidated balance sheets:
| December 31, | |
| 2013 | | | 2012 (Restated) | |
| (dollars in thousands) | |
Accrued expenses | $ | 39,851 | | | $ | 20,910 | |
Deferred rent credit | | 15,928 | | | | 14,498 | |
Current income taxes payable | | 4,059 | | | | 3,331 | |
Other | | 1,095 | | | | 1,796 | |
Total Other Liabilities | $ | 60,933 | | | $ | 40,535 | |
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OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Delayed Draw Term Loan
The following table presents the Company’s scheduled principal repayments for its indebtedness outstanding under its Delayed Draw Term Loan as of December 31, 2013:
| Principal Repayments | |
| (dollars in thousands) | |
2014 | $ | 3,827 | |
2015 | | 3,789 | |
2016 | | 376,561 | |
Total Principal Repayments | $ | 384,177 | |
In June 2012, the Company refinanced the indebtedness outstanding under the 2007 Term Loan, as well as the indebtedness outstanding under its aircraft loan. A $384.5 million borrowing under the Delayed Draw Term Loan was used to fund these refinancings, with the balance being used for general corporate purposes. A $6.5 million borrowing under the facility was made in November 2011 to fund a portion of the 2007 Term Loan repurchased and retired in connection with the 2011 Offering. As of December 31, 2013, the total indebtedness outstanding under the Delayed Draw Term Loan was $384.2 million.
Borrowings under the Delayed Draw Term Loan are payable in quarterly installments equal to 0.25% of the amount outstanding on the last day of each quarter, and the balance will be payable upon maturity on November 23, 2016. Any amounts borrowed under the facility and subsequently repaid may not be re-borrowed. Amounts borrowed bear interest at a rate of LIBOR plus 1.50%, or a base rate plus 0.50%, and are secured by a first priority lien on substantially all assets of the Och-Ziff Operating Group.
The Delayed Draw Term Loan includes two financial maintenance covenants. The first prohibits total assets under management as of the last day of any fiscal quarter to be less than $17.5 billion for two successive quarters, and the second prohibits the “economic income leverage ratio” (as defined in the Delayed Draw Term Loan) as of the last day of any fiscal quarter from exceeding 4.0 to 1.0. The Delayed Draw Term Loan allows a limited right to cure an event of default resulting from noncompliance with the economic income leverage ratio test with an equity contribution made to the borrower, OZ Management. Such cure right may not be used more than two times in any four-quarter period or more than three times during the term of the facility. As of December 31, 2013, the Company was in compliance with these covenants.
The Delayed Draw Term Loan includes provisions that restrict or limit the ability of the Och-Ziff Operating Group from:
• | Incurring additional indebtedness or issuing certain equity interests. |
• | Paying dividends in excess of free cash flow (as defined below) or making certain other payments. |
• | Merging, consolidating, selling or otherwise disposing of all or part of its assets. |
• | Engaging in certain transactions with shareholders or affiliates. |
• | Engaging in a substantially different line of business. |
• | Amending its organizational documents in a manner materially adverse to the lenders. |
The Delayed Draw Term Loan permits the Och-Ziff Operating Group to incur up to $150 million of unsecured indebtedness and additional unsecured indebtedness so long as, after giving effect to the incurrence of such indebtedness, it is in compliance with an economic income leverage ratio of 4.0 to 1.0 and no default or event of default has occurred and is continuing. As of December 31, 2013, the Och-Ziff Operating Group had not incurred any unsecured indebtedness. The Company will not be permitted to make distributions from the Och-Ziff Operating Group if it is in default under the Delayed Draw Term Loan.
The Delayed Draw Term Loan also limits the amount of distributions the Och-Ziff Operating Group can pay in a 12-month period to its “free cash flow.” Free cash flow for any period includes the combined net income or loss of the Och-Ziff Operating Group, excluding certain subsidiaries, subject to certain additions and deductions for taxes, interest, depreciation, amortization and other non-cash charges for such period, less total interest paid, expenses in connection with the purchase of property and equipment, distributions to
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OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
equity holders to pay taxes, plus (or minus) realized gains (or losses) on investments and dividends and interest from investments. As of December 31, 2013, distributions from the Och-Ziff Operating Group were in compliance with the free cash flow covenant.
On March 13, 2014, OZ Management and certain other subsidiaries of the Company entered into an amendment and waiver with the administrative agent and certain of the lenders under the Company’s Delayed Draw Term Loan in order to, among other things, waive any breach or violation of any provision of the Delayed Draw Term Loan that may result from the restatements and reclassifications discussed in Note 2, including any defaults or events of default that might result therefrom (including by way of cross-default).
Consolidated Funds Credit Facility
Certain funds consolidated by the Company have entered into a syndicated credit facility of which $85.5 million is available for borrowings or letters of credit. The facility will mature on the earlier of (i) April 1, 2014 and (ii) the date that is ninety days prior to the end of the investment period of the funds party to the agreement. The outstanding loans under the credit facility are secured by the unfunded capital commitments of one of the Company’s consolidated subsidiaries (as general partner) and the investors in those funds. The funds are jointly and severally liable for the indebtedness. For each borrowing under the credit facility, the funds have the option of borrowing at an interest rate equal to LIBOR plus 2.25%, or 1.25% plus the greater of (i) the prime rate and (ii) the federal funds rate plus 0.50%. For each letter of credit drawn under the credit facility, the funds pay interest at a rate equal to 2.375%. In addition, the funds pay a minimum usage fee of 0.35% on the average daily amount of the unused portion of the credit facility.
Borrowings under the credit facility are recorded as liabilities by the investment subsidiaries of the funds using the facility. Investment subsidiaries of these funds are not consolidated, but are carried at fair value within investments, at fair value in the Company’s consolidated balance sheets. Accordingly, such borrowings are not included within debt obligations in the Company’s consolidated balance sheets. As of December 31, 2013, there were $24.4 million in outstanding borrowings under the facility with an average interest rate of 2.42%, and $8.2 million in letters of credit drawn under the facility with an average interest rate of 2.375%. As of December 31, 2012, there were $56.2 million in outstanding borrowings under the facility with an average interest rate of 2.97%, and $7.8 million in letters of credit drawn under the facility with an average interest rate of 2.375%.
Notes Payable of Consolidated CLOs
The Company consolidates the CLOs it manages. As a result, the senior and subordinated notes issued by the CLOs are included in the Company’s consolidated balance sheets. Notes payable of the consolidated CLOs are collateralized by the assets held by the CLOs and the assets of one CLO may not be used to satisfy the liabilities of another. This collateral generally consists of corporate loans, corporate bonds and other securities. As of December 31, 2013 and 2012, the fair value of the CLO assets was $2.8 billion and $1.1 billion, respectively. The stated maturity date for the notes issued by the CLOs range from 2023 to 2026.
As discussed in Note 2, the Company has elected to carry these notes at fair value in its consolidated balance sheets. The Company recorded a net change in unrealized gains (losses) of $30.1 million and $(10.0) million for the years ended December 31, 2013 and 2012, respectively. These amounts are included within net gains of consolidated Och-Ziff funds in the statements of comprehensive income (loss). Substantially all of these changes related to changes in instrument specific credit risk, as substantially all of these are floating-rate instruments.
The tables below present information related to the CLO notes outstanding. The subordinated notes have no stated interest rate, and are entitled to any excess cash flows after contractual payments are made to the senior notes.
| As of December 31, 2013 | |
| Borrowings Outstanding | | | Fair Value | | | Weighted-Average Interest Rate | | | Weighted-Average Maturity in Years | |
| (dollars in thousands) | | | | | | | | | |
Senior secured notes | $ | 2,543,000 | | | $ | 2,508,338 | | | | 2.30% | | | | 10.8 | |
Subordinated notes | | 282,300 | | | | 255,639 | | | N/A | | | | 10.8 | |
Total Notes Payable of Consolidated CLOs | $ | 2,825,300 | | | $ | 2,763,977 | | | | | | | | | |
F-36
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
| As of December 31, 2012 | |
| Borrowings Outstanding | | | Fair Value | | | Weighted-Average Interest Rate | | | Weighted-Average Maturity in Years | |
| (dollars in thousands) | | | | | | | | | |
Senior secured notes | $ | 957,500 | | | $ | 956,693 | | | | 2.71% | | | | 10.7 | |
Subordinated notes | | 113,300 | | | | 104,852 | | | N/A | | | | 10.7 | |
Total Notes Payable of Consolidated CLOs | $ | 1,070,800 | | | $ | 1,061,545 | | | | | | | | | |
10. | REORGANIZATION EXPENSES AND EQUITY-BASED COMPENSATION EXPENSES |
Reorganization Expenses
The reclassification of the executive managing directors’ and the Ziffs’ pre-IPO interests in the Och-Ziff Operating Group as Och-Ziff Operating Group A Units at the time of the Reorganization was accounted for as share-based payments. The Och-Ziff Operating Group A Units granted to the Ziffs and the units sold by the executive managing directors in the 2007 Offerings were not subject to any substantive service or performance requirements; therefore, the fair value related to those units was recognized as a one-time charge at the time of the 2007 Offerings. The fair value of the Och-Ziff Operating Group A Units held by the executive managing directors after the 2007 Offerings, less a 5% discount for transfer restrictions that remain in place after vesting, or $30.40 per Och-Ziff Operating Group A Unit, was amortized on a straight-line basis over the requisite five-year service period following the 2007 Offerings. Any units that were subsequently reallocated among the executive managing directors as a result of forfeiture were accounted for as a new grant at the time of reallocation. Substantially all of the reallocated units vested over the remaining five-year period beginning on the date of the 2007 Offerings, with a small number of reallocated units vesting through 2015. Amortization related to Och-Ziff Operating Group A Units granted in connection with the Reorganization that are forfeited and subsequently reallocated to the remaining executive managing directors is also included within Reorganization expenses.
The table below presents the activity related to unvested Och-Ziff Operating Group A Units granted in connection with the Reorganization that are being amortized through Reorganization expenses for the year ended December 31, 2013:
| Unvested Och-Ziff Operating Group A Units | | | Weighted-Average Grant-Date Fair Value | |
Beginning of Year | | 1,629,724 | | | $ | 29.60 | |
Vested | | (543,952 | ) | | | 29.57 | |
End of Year | | 1,085,772 | | | $ | 29.62 | |
The weighted-average grant-date fair value of Och-Ziff Operating Group A Units granted in connection with the Reorganization was $10.06 for the year ended December 31, 2011. There were no Och-Ziff Operating Group A Units granted in 2013 or 2012 that are being amortized through Reorganization expenses. As of December 31, 2013, the total unrecognized Reorganization expenses related to unvested Och-Ziff Operating Group A Units granted in connection with the Reorganization totaled $30.1 million with a weighted-average amortization period of 1.9 years.
Equity-Based Compensation Expenses
The Company grants equity-based compensation in the form of RSUs, Och-Ziff Operating Group A Units and Class A Shares to its executive managing directors, employees and the independent members of the Board under the terms of the 2007 Equity Incentive Plan. In the future, the Company expects to issue additional equity awards relating to Class A Shares under its 2013 Incentive Plan. The following table presents information regarding the impact of equity-based compensation grants on the Company’s consolidated statements of comprehensive income (loss):
| Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | |
Expense recorded within compensation and benefits | $ | 133,832 | | | $ | 86,006 | | | $ | 128,916 | |
Corresponding tax benefit | $ | 11,362 | | | $ | 5,639 | | | $ | 9,503 | |
F-37
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Restricted Share Units (RSUs)
An RSU entitles the holder to receive a Class A Share, or cash equal to the fair value of a Class A Share at the election of the Board, upon completion of the requisite service period. The Company recognizes compensation expense for RSUs equal to the market value of the Company’s Class A Shares at the date of grant, adjusted for forfeiture assumptions.
All of the RSUs granted to date accrue dividend equivalents equal to the dividend amounts paid on the Company’s Class A Shares. To date, these dividend equivalents have been awarded in the form of additional RSUs that also accrue additional dividend equivalents. As a result, dividend equivalents declared on RSUs are recorded similar to a stock dividend, resulting in (i) increases in the Company’s accumulated deficit and the accumulated deficit component of noncontrolling interests on the same pro rata basis as earnings of the Och-Ziff Operating Group are allocated and (ii) increases in the Company’s paid-in capital and the paid-in capital component of noncontrolling interests on the same pro rata basis. No compensation expense is recognized related to these dividend equivalents. Delivery of dividend equivalents on outstanding RSUs is contingent upon the vesting of the underlying RSUs, and therefore a forfeiture provision has been included in the accrual of such dividend equivalents.
The following table presents information related to the settlement of RSUs:
| Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | |
Fair value of RSUs settled in Class A Shares | $ | 68,039 | | | $ | 33,702 | | | $ | 62,099 | |
Fair value of RSUs settled in cash | $ | 13,707 | | | $ | - | | | $ | - | |
Fair value of RSUs withheld to satisfy tax withholding obligations | $ | 21,845 | | | $ | 10,907 | | | $ | 22,906 | |
Number of RSUs withheld to satisfy tax withholding obligations | | 1,661,209 | | | | 1,173,231 | | | | 2,150,330 | |
The following table presents activity related to the Company’s unvested RSUs for the year ended December 31, 2013:
| Unvested RSUs | | | Weighted-Average Grant-Date Fair Value | |
Beginning of Year | | 4,969,158 | | | $ | 10.91 | |
Granted | | 12,470,271 | | | | 10.07 | |
Vested | | (7,411,049 | ) | | | 10.50 | |
Canceled or forfeited | | (479,686 | ) | | | 10.55 | |
End of Year | | 9,548,694 | | | $ | 10.16 | |
The weighted-average grant-date fair value of RSUs granted was $10.07, $9.62 and $13.36 for the years ended December 31, 2013, 2012 and 2011, respectively. As of December 31, 2013, total unrecognized compensation expense related to RSUs was approximately $78.0 million with a weighted-average amortization period of 2.3 years.
Och-Ziff Operating Group A Units Granted Subsequent to the 2007 Offerings
The Company recognizes compensation expense for Och-Ziff Operating Group A Units equal to the market value of the Company’s Class A Shares at the date of grant, less a 5% discount for transfer restrictions that remain in place after vesting. The table below presents the activity related to unvested Och-Ziff Operating Group A Units granted to executive managing directors subsequent to the 2007 Offerings that are being amortized through compensation and benefits for the year ended December 31, 2013:
| Unvested Och-Ziff Operating Group A Units | | | Weighted-Average Grant-Date Fair Value | |
Beginning of Year | | 6,820,312 | | | $ | 8.98 | |
Granted | | 24,097,722 | | | | 9.99 | |
Vested | | (4,955,147 | ) | | | 9.86 | |
Canceled or forfeited | | (4,100,000 | ) | | | 8.76 | |
End of Year | | 21,862,887 | | | $ | 9.94 | |
F-38
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
The weighted-average grant-date fair value of Och-Ziff Operating Group A Units granted subsequent to the 2007 Offerings was $9.99, $8.30 and $12.05 for the years ended December 31, 2013, 2012 and 2011, respectively. As of December 31, 2013, the total unrecognized compensation expenses related to these units totaled $198.4 million with a weighted-average amortization period of 6.5 years.
In connection with the grant of Och-Ziff Operating Group A Units to executive managing directors as detailed in the table above, the Company also issued an equal number of Class B Shares to those executive managing directors.
11. | GENERAL, ADMINISTRATIVE AND OTHER |
The following table presents the components of general, administrative and other expenses as reported in the consolidated statements of comprehensive income (loss):
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 | |
| (dollars in thousands) | |
Professional services | $ | 43,932 | | | $ | 30,404 | | | $ | 20,236 | |
Recurring placement and related service fees | | 31,291 | | | | 23,380 | | | | 18,479 | |
Occupancy and equipment | | 30,526 | | | | 28,286 | | | | 27,583 | |
Information processing and communications | | 19,807 | | | | 19,074 | | | | 16,620 | |
Business development | | 11,223 | | | | 9,325 | | | | 7,879 | |
Insurance | | 8,323 | | | | 7,677 | | | | 7,222 | |
Other expenses | | 13,286 | | | | 12,155 | | | | 8,866 | |
| | 158,388 | | | | 130,301 | | | | 106,885 | |
Changes in tax receivable agreement liability | | (8,514 | ) | | | (13,428 | ) | | | (21,768 | ) |
Total General, Administrative and Other | $ | 149,874 | | | $ | 116,873 | | | $ | 85,117 | |
The Company recorded depreciation and amortization expenses related to its fixed assets, including capital lease assets, of $8.3 million, $9.4 million and $9.7 million within general, administrative and other in the consolidated statements of comprehensive income (loss) for the years ended December 31, 2013, 2012 and 2011, respectively.
The Registrant and each of the Och-Ziff Operating Group entities are partnerships for U.S. federal income tax purposes. Due to the Company’s legal structure, only a portion of the income earned by the Company is subject to corporate-level income taxes in the United States and in foreign jurisdictions.
The following table presents the components of the Company’s provision for income taxes:
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 | |
| (dollars in thousands) | |
Current: | | | | | | | | | | | |
State and local income taxes | $ | 9,181 | | | $ | 7,947 | | | $ | 8,964 | |
Foreign income taxes | | 7,545 | | | | 6,711 | | | | 4,422 | |
| | 16,726 | | | | 14,658 | | | | 13,386 | |
| | | | | | | | | | | |
Deferred: | | | | | | | | | | | |
Federal income taxes | | 60,534 | | | | 45,680 | | | | 22,783 | |
State and local income taxes | | 19,202 | | | | 22,472 | | | | 24,032 | |
Foreign income taxes | | (775 | ) | | | 51 | | | | (620 | ) |
| | 78,961 | | | | 68,203 | | | | 46,195 | |
Total Provision for Income Taxes | $ | 95,687 | | | $ | 82,861 | | | $ | 59,581 | |
F-39
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Deferred income tax assets and liabilities represent the tax effects of the temporary differences between the GAAP bases and tax bases of the Company’s assets and liabilities. The following table presents the Company’s deferred income tax assets and liabilities before the impact of offsetting deferred income tax assets and liabilities within the same legal entity and tax jurisdiction:
| December 31, | |
| 2013 | | | 2012 (Restated) | |
| (dollars in thousands) | |
Deferred Income Tax Assets: | | | | | | | |
Tax goodwill | $ | 875,570 | | | $ | 851,605 | |
Net operating loss | | 42,619 | | | | 55,305 | |
Tax credit carryforwards | | 22,780 | | | | 18,508 | |
Employee compensation | | 7,629 | | | | 1,283 | |
Other | | - | | | | 831 | |
| | 948,598 | | | | 927,532 | |
Valuation allowance | | (9,330 | ) | | | (7,699 | ) |
Total Deferred Income Tax Assets | $ | 939,268 | | | $ | 919,833 | |
| | | | | | | |
Deferred Income Tax Liabilities: | | | | | | | |
Investment in partnerships | | 4,536 | | | | 2,791 | |
Other | | 74 | | | | 212 | |
Total Deferred Income Tax Liabilities | $ | 4,610 | | | $ | 3,003 | |
The majority of the Company’s deferred income tax assets relate to tax goodwill in the United States that arose in connection with the 2007 Offerings, as well as subsequent exchanges of Och-Ziff Operating Group A Units for Class A Shares. These deferred income tax assets are derived from goodwill recognized for tax purposes that is expected to be subsequently amortized and result in future taxable deductions and cash savings to the Company. The Company entered into a tax receivable agreement to pay a portion of these tax savings to the Company’s executive managing directors and the Ziffs. See Note 15 for additional information regarding the tax receivable agreement.
For the years ended December 31, 2013 and 2012, the Company recorded a valuation allowance of $9.3 million and $7.7 million, respectively, pertaining to state and local income tax credit carryforwards based on management’s assessment of the factors impacting the ability to realize these deferred income tax assets within the limited carryforward period available.
The following is a reconciliation of the statutory U.S. federal income tax rate to the Company’s effective income tax rate:
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
Statutory U.S. federal income tax rate | | 35.00 | % | | | 35.00 | % | | | 35.00 | % |
Income passed through to
noncontrolling interests | | -25.54 | % | | | -18.43 | % | | | -26.17 | % |
Income not subject to entity level tax | | -3.91 | % | | | -6.01 | % | | | -4.59 | % |
State and local income taxes | | 1.93 | % | | | -5.71 | % | | | -2.15 | % |
Foreign income taxes | | 0.30 | % | | | -0.82 | % | | | -0.15 | % |
Reorganization expenses | | 0.09 | % | | | -20.20 | % | | | -6.27 | % |
Other, net | | -0.79 | % | | | -0.80 | % | | | 0.09 | % |
Effective Income Tax Rate | | 7.08 | % | | | -16.97 | % | | | -4.24 | % |
F-40
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
As of December 31, 2013, the Company had foreign income tax credit carryforwards of approximately $13.5 million that will expire between 2017 and 2023, and state and local income tax credits of $9.3 million that will expire between 2014 and 2020. As of December 31, 2013, the Company had $79.5 million of net operating losses available to offset future taxable income for federal income tax purposes that will expire between 2029 and 2032, and $182.7 million for state and $163.4 million for local income tax purposes that will expire between 2028 and 2032.
The Company files income tax returns with the U.S. federal government and various state and local jurisdictions, as well as foreign jurisdictions. The income tax years under examination vary by jurisdiction. In general, the Company is no longer subject to U.S. federal, state and local, or foreign income tax examinations by tax authorities for years prior to 2010; however, certain subsidiaries are no longer subject to income tax examinations for years prior to the following: 2007 for U.S. federal; 2006 for state and local; and 2007 for foreign jurisdictions.
As of and for the three years ended December 31, 2013, the Company was not required to establish a liability for uncertain tax positions.
13. | EARNINGS (LOSS) PER CLASS A SHARE |
Basic earnings (loss) per Class A Share is computed by dividing the net income (loss) allocated to Class A Shareholders by the weighted-average number of Class A Shares outstanding for the period. For the years ended December 31, 2013, 2012 and 2011, the Company included, respectively, 1,772,757, 1,014,166 and 763,229 RSUs that have vested but have not been settled in Class A Shares in the weighted-average Class A Shares outstanding used in the calculation of basic and diluted earnings (loss) per Class A Share.
The following tables present the computation of basic and diluted earnings (loss) per Class A Share:
| Net Income Allocated to Class A Shareholders | | | Weighted- Average Class A Shares Outstanding | | | Earnings
Per Class A Share | | | Number of Antidilutive Units Excluded from Diluted Calculation | |
Year Ended December 31, 2013 | (dollars in thousands, except per share amounts) | |
Basic | $ | 261,767 | | | | 155,994,389 | | | $ | 1.68 | | | | | |
Effect of dilutive securities: | | | | | | | | | | | | | | | |
Och-Ziff Operating Group A Units | | 495,386 | | | | 307,951,103 | | | | | | | | - | |
RSUs | | - | | | | 4,497,198 | | | | | | | | - | |
Diluted | $ | 757,153 | | | | 468,442,690 | | | $ | 1.62 | | | | | |
| Net Loss Allocated to Class A Shareholders (Restated) | | | Weighted- Average Class A Shares Outstanding | | | Loss Per Class A Share (Restated) | | | Number of Antidilutive Units Excluded from Diluted Calculation | |
Year Ended December 31, 2012 (Restated) | (dollars in thousands, except per share amounts) | |
Basic | $ | (310,723 | ) | | | 142,970,660 | | | $ | (2.17 | ) | | | | |
Effect of dilutive securities: | | | | | | | | | | | | | | | |
Och-Ziff Operating Group A Units | | - | | | | - | | | | | | | | 300,231,866 | |
RSUs | | - | | | | - | | | | | | | | 4,969,158 | |
Diluted | $ | (310,723 | ) | | | 142,970,660 | | | $ | (2.17 | ) | | | | |
F-41
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
| Net Loss Allocated to Class A Shareholders | | | Weighted- Average Class A Shares Outstanding | | | Loss Per Class A Share | | | Number of Antidilutive Units Excluded from Diluted Calculation | |
Year Ended December 31, 2011 (Restated) | (dollars in thousands, except per share amounts) | |
Basic | $ | (418,990 | ) | | | 102,848,812 | | | $ | (4.07 | ) | | | | |
Effect of dilutive securities: | | | | | | | | | | | | | | | |
Och-Ziff Operating Group A Units | | - | | | | - | | | | | | | | 297,297,974 | |
RSUs | | - | | | | - | | | | | | | | 5,746,442 | |
Diluted | $ | (418,990 | ) | | | 102,848,812 | | | $ | (4.07 | ) | | | | |
14. | RELATED PARTY TRANSACTIONS |
Due to Related Parties
Amounts due to related parties relate primarily to future payments owed to the Company’s executive managing directors and the Ziffs under the tax receivable agreement. As further discussed in Note 15, the Company entered into an agreement with the executive managing directors and the Ziffs, whereby the Company would pay them a portion of any tax savings resulting from the purchase of Och-Ziff Operating Group A Units at the time of the 2007 Offerings or as a result of any subsequent exchanges of their interests for Class A Shares. The Company made payments under the tax receivable agreement to its executive managing directors and the Ziffs of $29.8 million, $20.4 million and $14.5 million for the years ended December 31, 2013, 2012 and 2011, respectively, for tax savings realized, including interest thereon.
Management Fees and Incentive Income Earned from the Och-Ziff Funds
The Company earns substantially all of its management fees and incentive income from the Och-Ziff funds, which are considered related parties as the Company manages the operations of and makes investment decisions for these funds.
Management Fees and Incentive Income Earned from Related Parties and Waived Fees
Prior to the 2007 Offerings, the Company did not charge management fees or earn incentive income on investments made by the Company’s executive managing directors, employees and other related parties. Following the 2007 Offerings, the Company began charging management fees and earning incentive income on new investments made in the funds by executive managing directors and certain other related parties, including the reinvestment by executive managing directors of the after-tax proceeds from the 2007 Offerings. The Company continues to waive fees for employee investments in the funds.
The following table presents management fees and incentive income charged on investments held by related parties and amounts waived by the Company for related parties before the impact of eliminations related to the consolidated funds:
| Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | |
Fees charged on investments held by related parties: | | | | | | | | | | | |
Management fees | $ | 28,860 | | | $ | 25,997 | | | $ | 24,557 | |
Incentive income | $ | 70,959 | | | $ | 37,415 | | | $ | 7,947 | |
Fees waived on investments held by related parties: | | | | | | | | | | | |
Management fees | $ | 14,306 | | | $ | 13,100 | | | $ | 13,574 | |
Incentive income | $ | 32,045 | | | $ | 16,743 | | | $ | 1,287 | |
Corporate Aircraft
The Company’s corporate aircraft is used primarily for business purposes. From time to time, Mr. Och uses the aircraft for personal use. For the years ended December 31, 2013, 2012 and 2011 the Company charged Mr. Och $784 thousand, $375 thousand and $839 thousand, respectively, for his personal use of the aircraft.
F-42
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
15. | COMMITMENTS AND CONTINGENCIES |
Tax Receivable Agreement
The purchase of Och-Ziff Operating Group A Units from the executive managing directors and the Ziffs with the proceeds from the 2007 Offerings, and subsequent taxable exchanges by them of Och-Ziff Operating Group A Units for Class A Shares on a one-for-one basis (or, at the Company’s option, a cash equivalent), resulted, and, in the case of future exchanges, are anticipated to result, in an increase in the tax basis of the tangible and intangible assets of the Och-Ziff Operating Group that would not otherwise have been available. As a result, the Company expects that its future tax liability will be reduced. Pursuant to the tax receivable agreement entered into among the Company, the executive managing directors and the Ziffs, the Company has agreed to pay to the executive managing directors and the Ziffs 85% of the amount of tax savings, if any, actually realized by the Company.
The Company recorded its initial estimate of future payments under the tax receivable agreement by recording a decrease to paid-in capital and an increase in amounts due to related parties in the consolidated financial statements. Subsequent adjustments to the liability for future payments under the tax receivable agreement related to changes in estimated future tax rates or state income tax apportionment are recognized through current period earnings within general, administrative and other expenses in the consolidated statements of comprehensive income (loss).
In connection with the departure of certain former executive managing directors since the 2007 Offerings, the right to receive payments under the tax receivable agreement by those former executive managing directors was contributed to the Och-Ziff Operating Group. As a result, the Company now expects to pay to the remaining executive managing directors and the Ziffs approximately 78% (from 85% at the time of the 2007 Offerings) of the amount of cash savings, if any, in federal, state and local income taxes in the United States that the Company actually realizes as a result of the increases in tax basis.
In connection with the contributions by former executive managing directors in 2011, the Company recorded the following:
| Year Ended
December 31, 2011 | |
| (dollars in thousands) | |
Decrease in amounts payable under tax receivable agreement | $ | 4,601 | |
Decrease in deferred income tax assets related to income tax expense expected to be incurred as a result of the payments to the Och-Ziff Operating Group | | 398 | |
Increase in paid-in capital | | 723 | |
Increase in noncontrolling interests | | 3,480 | |
The estimate of the timing and the amount of future payments under the tax receivable agreement involves several assumptions that do not account for the significant uncertainties associated with these potential payments, including an assumption that Och-Ziff Corp will have sufficient taxable income in the relevant tax years to utilize the tax benefits that would give rise to an obligation to make payments. The actual timing and amount of any actual payments under the tax receivable agreement will vary based upon these and a number of other factors.
The table below presents the maximum amounts that would be payable under the tax receivable agreement assuming that the Company will have sufficient taxable income each year to fully realize the expected tax savings. In light of the numerous factors affecting the Company’s obligation to make such payments, the timing and amounts of any such actual payments may differ materially from those presented in the table.
| Potential Payments Under Tax Receivable Agreement | |
| (dollars in thousands) | |
2014 | $ | 43,169 | |
2015 | | 49,928 | |
2016 | | 52,524 | |
2017 | | 55,228 | |
2018 | | 58,036 | |
Thereafter | | 521,820 | |
Total Payments | $ | 780,705 | |
F-43
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Lease Obligations
The Company has non-cancelable operating leases for its headquarters in New York expiring in 2029 and various other operating leases for its offices in London, Hong Kong, Mumbai, Beijing and Dubai expiring on various dates through 2024. The Company also has operating leases for other locations, as well as operating and capital leases on computer hardware. Certain operating leases allow for rent holiday periods. The Company recognizes expense related to its operating leases on a straight-line basis over the lease term taking into account these rent holiday periods.
The table below presents total future minimum lease payments for operating leases with original or remaining noncancelable lease terms in excess of one year as of December 31, 2013. Future minimum lease payments for capital leases were not material as of December 31, 2014.
| Operating Leases | |
| (dollars in thousands) | |
2014 | $ | 20,750 | |
2015 | | 22,250 | |
2016 | | 23,756 | |
2017 | | 23,752 | |
2018 | | 19,679 | |
Thereafter | | 200,418 | |
Total Minimum Lease Payments | $ | 310,605 | |
For the years ended December 31, 2013, 2012 and 2011, the Company recorded rent expense on a straight-line basis of $19.6 million, $17.7 million, and $17.2 million, respectively, within general, administrative and other expenses in the consolidated statements of comprehensive income (loss).
Litigation
From time to time, the Company is involved in litigation and claims incidental to the conduct of the Company’s business. The Company is also subject to extensive scrutiny by regulatory agencies globally that have, or may in the future have, regulatory authority over the Company and its business activities. This has resulted, or may in the future result, in regulatory agency investigations, litigation and subpoenas and costs related to each.
Beginning in 2011, and from time to time thereafter, the Company has received subpoenas from the Securities and Exchange Commission and requests for information from the U.S. Department of Justice in connection with an investigation involving the FCPA and related laws. The investigation concerns an investment by a foreign sovereign wealth fund in some of the Och-Ziff funds in 2007 and investments by some of the funds, both directly and indirectly, in a number of companies in Africa. At this time, the Company is unable to determine how the investigation will be resolved and what impact, if any, it will have. An adverse outcome could have a material effect on the Company’s consolidated financial statements.
Investment Commitments
From time to time, certain funds consolidated by the Company may have commitments to fund investments. These commitments are funded through contributions from investors in those funds. The Company generally only manages these funds and is not an investor in the funds.
The Company has committed to fund a portion of the operating budget for a joint venture. The amount of the commitment will be equal to the actual costs incurred in the projects the joint venture manages, as determined by the Company and its joint venture partner. The joint venture periodically returns substantially all of the cash that is contributed by the Company, as expenses incurred by the joint venture are generally reimbursed by the projects it manages.
Certain of the Company’s executive managing directors, collectively, have capital commitments to a fund managed by the Company of up to $30.0 million. The Company has guaranteed these commitments in the event any executive managing director fails to fund any portion when called by the fund. The Company has historically not funded any of these commitments and does not expect to in the future, as these commitments are expected to be funded by the Company’s executive managing directors individually.
F-44
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Other Contingencies
In the normal course of business, the Company enters into contracts that provide a variety of general indemnifications. Such contracts include those with certain service providers, brokers and trading counterparties. Any exposure to the Company under these arrangements could involve future claims that may be made against the Company. Currently, no such claims exist or are expected to arise and, accordingly, the Company has not accrued any liability in connection with such indemnifications.
The Och-Ziff Funds segment is currently the Company’s only reportable segment and represents the Company’s core business, as substantially all of the Company’s operations are conducted through this segment. The Och-Ziff Funds segment provides asset management services to the Company’s multi-strategy funds, credit funds, CLOs and other alternative investment vehicles.
The Company’s Other Operations are primarily comprised of its real estate business, which provides asset management services to its real estate funds. The businesses included in the Company’s Other Operations do not meet the thresholds of reportable business segments under GAAP.
In addition to analyzing the Company’s results on a GAAP basis, management also reviews its results on an “Economic Income” basis. Economic Income excludes the adjustments described below that are required for presentation of the Company’s results on a GAAP basis, but that management does not consider when evaluating operating performance in any given period. Management, therefore, uses Economic Income as the basis on which it evaluates the Company’s financial performance and makes resource allocation and other operating decisions. Management considers it important that investors review the same operating information that it uses.
Economic Income is a measure of pre-tax operating performance that excludes the following from the Company’s results on a GAAP basis:
• | Income allocations to the Company’s executive managing directors and the Ziffs on their direct interests in the Och-Ziff Operating Group. Management reviews operating performance at the Och-Ziff Operating Group level, where substantially all of the Company’s operations are performed, prior to making any income allocations. |
• | Reorganization expenses related to the 2007 Offerings, equity-based compensation expenses and depreciation and amortization expenses, as management does not consider these non-cash expenses to be reflective of operating performance. However, the fair value of RSUs that are settled in cash to employees or executive managing directors is included as an expense at the time of settlement. |
• | Changes in the tax receivable agreement liability, net gains on early retirement of debt and net gains (losses) on investments in Och-Ziff funds, as management does not consider these to be reflective of operating performance. |
• | Amounts related to the consolidated Och-Ziff funds, including the related eliminations of management fees and incentive income, as management reviews the total amount of management fees and incentive income earned in relation to total assets under management and fund performance. The Company also defers the recognition of incentive income allocations from the consolidated Och-Ziff funds until all clawback contingencies are resolved, consistent with the revenue recognition policy for the funds the Company does not consolidate. |
In addition, expenses related to compensation and profit-sharing arrangements based on fund investment performance are recognized at the end of the relevant performance measurement period, as management reviews the total compensation expense related to these arrangements in relation to any incentive income earned by the respective fund.
Finally, management reviews Economic Income revenues by presenting management fees net of recurring placement and related service fees, rather than considering these fees an expense, and by excluding the impact of eliminations related to the consolidated Och-Ziff funds.
Management does not regularly review assets by operating segment in assessing operating segment performance and the allocation of company resources; therefore, the Company does not present total assets by operating segment. All interest expense related to outstanding indebtedness is allocated to the Och-Ziff Funds segment.
F-45
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Och-Ziff Funds Segment Results
| Year Ended December 31, | |
| 2013 | | | 2012 | | | 2011 | |
| (dollars in thousands) | |
Och-Ziff Funds Segment: | | | | | | | | | | | |
Economic Income Revenues | $ | 1,619,573 | | | $ | 1,080,743 | | | $ | 538,305 | |
Economic Income | $ | 1,104,236 | | | $ | 695,191 | | | $ | 272,936 | |
Reconciliation of Och-Ziff Funds Segment Revenues to Consolidated Revenues
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| (dollars in thousands) | |
Total consolidated revenues | $ | 1,895,923 | | | $ | 1,226,602 | | | $ | 616,424 | |
Adjustment to management fees(1) | | (10,668 | ) | | | (14,400 | ) | | | (14,665 | ) |
Adjustment to incentive income(2) | | 6,031 | | | | 4,707 | | | | - | |
Other Operations revenues | | (10,914 | ) | | | (10,724 | ) | | | (15,171 | ) |
Income of consolidated Och-Ziff funds | | (260,799 | ) | | | (125,442 | ) | | | (48,283 | ) |
Economic Income Revenues - Och-Ziff Funds Segment | $ | 1,619,573 | | | $ | 1,080,743 | | | $ | 538,305 | |
(1) | Adjustment to present management fees net of recurring placement and related service fees, as management considers these fees a reduction in management fees, not an expense. The impact of eliminations related to the consolidated Och-Ziff funds is also removed. |
(2) | Adjustment to exclude the impact of eliminations related to the consolidated funds. |
Reconciliation of Och-Ziff Funds Economic Income to Net Income (Loss) Allocated to Class A Shareholders
| Year Ended December 31, | |
| 2013 | | | 2012 (Restated) | | | 2011 (Restated) | |
| (dollars in thousands) | |
Net income (loss) allocated to Class A Shareholders | $ | 261,767 | | | $ | (310,723 | ) | | $ | (418,990 | ) |
Net income (loss) allocated to the Och-Ziff Operating Group A Units | | 616,843 | | | | (538,055 | ) | | | (1,088,514 | ) |
Equity-based compensation, net of RSUs settled in cash | | 120,125 | | | | 86,006 | | | | 128,916 | |
Income taxes | | 95,687 | | | | 82,861 | | | | 59,581 | |
Incentive income allocations from consolidated funds subject to clawback | | (40,137 | ) | | | (36,418 | ) | | | - | |
Allocations to Och-Ziff Operating Group D Units | | 19,954 | | | | 9,296 | | | | 2,433 | |
Reorganization expenses | | 16,087 | | | | 1,396,882 | | | | 1,614,363 | |
Changes in tax receivable agreement liability | | (8,514 | ) | | | (13,428 | ) | | | (21,768 | ) |
Depreciation and amortization | | 8,251 | | | | 9,362 | | | | 9,676 | |
Adjustment for expenses related to compensation and profit-sharing arrangements based on fund investment performance | | 7,854 | | | | - | | | | 600 | |
Other Operations | | 5,540 | | | | 1,077 | | | | (836 | ) |
Net gains on early retirement of debt | | - | | | | - | | | | (12,494 | ) |
Other adjustments | | 779 | | | | 8,331 | | | | (31 | ) |
Economic Income - Och-Ziff Funds Segment | $ | 1,104,236 | | | $ | 695,191 | | | $ | 272,936 | |
F-46
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2013
Dividend
On February 6, 2014, the Company announced a cash dividend of $1.12 per Class A Share. The dividend was paid on February 25, 2014 to holders of record as of the close of business on February 18, 2014.
Aircraft Credit Facility
On February 14, 2014, we entered into a secured multiple draw term loan agreement (the “Aircraft Loan”) for up to $59.0 million to finance the purchase of a new corporate aircraft expected to be delivered in the first quarter of 2015. The Aircraft Loan is guaranteed by OZ Management, OZ Advisors and OZ Advisors II. A $16.0 million borrowing was made to fund a progress payment due in February 2014. Amounts borrowed prior to aircraft delivery to fund progress payments under the aircraft purchase agreement bear interest at a rate of LIBOR plus 1.40%. Following aircraft delivery, the Company will have the option of selecting a 5- or 7-year term with either a fixed or floating interest rate, which rate will vary based on the term selected. There are no financial covenants associated with the Aircraft Loan. No principal payments are due prior to aircraft delivery; however, the Aircraft Loan will become due if the aircraft is not delivered by October 30, 2015. Following aircraft delivery, borrowings under the Aircraft Loan will be payable in installments for the term of the facility, with a balloon payment due upon maturity. The amount of the installment and balloon payments will be determined based upon the selection of either a 5- or 7-year term. The Aircraft Loan includes other customary terms and conditions, including customary events of default and covenants.
On March 13, 2014, OZ Management, OZ Advisors, OZ Advisors II and one of the Company’s other subsidiaries entered into a waiver with the lender under the Company’s Aircraft Loan in order to waive any breach or violation of any provision of the Aircraft Loan documents that may result from the restatements and reclassifications discussed in Note 2, including any defaults or events of default that might result therefrom (including by way of cross-default).
F-47
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
SUPPLEMENTAL FINANCIAL INFORMATION
QUARTERLY RESULTS — UNAUDITED
The following tables present the Company’s unaudited, summarized quarterly results and balance sheet information for the years ended December 31, 2013 and 2012:
| Year Ended December 31, 2013 | |
| First (Restated) | | | Second (Restated) | | | Third (Restated) | | | Fourth | |
| (dollars in thousands, except per share amounts) | |
Selected Operating Statement Data | | | | | | | | | | | | | | | |
Total revenues | $ | 286,211 | | | $ | 229,164 | | | $ | 279,767 | | | $ | 1,100,781 | |
Total expenses | | 110,365 | | | | 140,272 | | | | 142,455 | | | | 433,787 | |
Total other income | | 107,555 | | | | 36,180 | | | | 43,612 | | | | 95,121 | |
Income taxes | | 25,295 | | | | 13,103 | | | | 11,996 | | | | 45,293 | |
Consolidated Net Income | $ | 258,106 | | | $ | 111,969 | | | $ | 168,928 | | | $ | 716,822 | |
Allocation of Consolidated Net Income | | | | | | | | | | | | | | | |
Class A Shareholders | $ | 30,035 | | | $ | 3,818 | | | $ | 28,852 | | | $ | 199,062 | |
Noncontrolling interests | | 225,792 | | | | 107,721 | | | | 137,643 | | | | 514,667 | |
Redeemable noncontrolling interests | | 2,279 | | | | 430 | | | | 2,433 | | | | 3,093 | |
| $ | 258,106 | | | $ | 111,969 | | | $ | 168,928 | | | $ | 716,822 | |
| | | | | | | | | | | | | | | |
Earnings Per Class A Share | | | | | | | | | | | | | | | |
Basic | $ | 0.20 | | | $ | 0.03 | | | $ | 0.18 | | | $ | 1.21 | |
Diluted | $ | 0.20 | | | $ | 0.02 | | | $ | 0.15 | | | $ | 1.13 | |
| | | | | | | | | | | | | | | |
Weighted-Average Class A Shares Outstanding | | | | | | | | | | | | | | | |
Basic | | 150,646,754 | | | | 152,016,631 | | | | 156,752,496 | | | | 164,402,184 | |
Diluted | | 151,625,895 | | | | 155,900,015 | | | | 475,281,312 | | | | 478,231,474 | |
| | | | | | | | | | | | | | | |
Selected Balance Sheet Data | | | | | | | | | | | | | | | |
Cash and cash equivalents | $ | 225,072 | | | $ | 242,181 | | | $ | 283,241 | | | $ | 189,974 | |
Assets of consolidated Och-Ziff funds | | 3,565,272 | | | | 4,346,853 | | | | 4,299,177 | | | | 4,711,189 | |
Total assets | | 4,876,877 | | | | 5,599,317 | | | | 5,676,873 | | | | 6,869,274 | |
Debt obligations | | 387,073 | | | | 386,105 | | | | 385,140 | | | | 384,177 | |
Liabilities of consolidated Och-Ziff funds | | 2,011,924 | | | | 2,644,240 | | | | 2,608,218 | | | | 3,042,395 | |
Total liabilities | | 3,192,475 | | | | 3,829,921 | | | | 3,846,721 | | | | 4,577,667 | |
Redeemable noncontrolling interests | | 29,709 | | | | 42,973 | | | | 67,675 | | | | 76,583 | |
Shareholders' deficit attributable to Class A Shareholders | | (317,965 | ) | | | (352,146 | ) | | | (318,934 | ) | | | (133,721 | ) |
Shareholders' equity attributable to noncontrolling interests | | 1,972,658 | | | | 2,078,569 | | | | 2,081,411 | | | | 2,348,745 | |
Total shareholders' equity | | 1,654,693 | | | | 1,726,423 | | | | 1,762,477 | | | | 2,215,024 | |
F-48
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
SUPPLEMENTAL FINANCIAL INFORMATION
QUARTERLY RESULTS — UNAUDITED
| Year Ended December 31, 2012 | |
| First (Restated) | | | Second (Restated) | | | Third (Restated) | | | Fourth (Restated) | |
| (dollars in thousands, except per share amounts) | |
Selected Operating Statement Data | | | | | | | | | | | | | | | |
Total revenues | $ | 140,924 | | | $ | 178,422 | | | $ | 172,545 | | | $ | 734,711 | |
Total expenses | | 471,589 | | | | 476,140 | | | | 480,862 | | | | 499,365 | |
Total other income | | 76,506 | | | | 8,482 | | | | 56,775 | | | | 71,221 | |
Income taxes | | 15,134 | | | | 14,175 | | | | 19,920 | | | | 33,632 | |
Consolidated Net Income (Loss) | $ | (269,293 | ) | | $ | (303,411 | ) | | $ | (271,462 | ) | | $ | 272,935 | |
Allocation of Consolidated Net Income (Loss) | | | | | | | | | | | | | | | |
Class A Shareholders | $ | (121,732 | ) | | $ | (113,957 | ) | | $ | (126,475 | ) | | $ | 51,441 | |
Noncontrolling interests | | (147,561 | ) | | | (189,454 | ) | | | (145,807 | ) | | | 220,622 | |
Redeemable noncontrolling interests | | - | | | | - | | | | 820 | | | | 872 | |
| $ | (269,293 | ) | | $ | (303,411 | ) | | $ | (271,462 | ) | | $ | 272,935 | |
| | | | | | | | | | | | | | | |
Earnings (Loss) Per Class A Share | | | | | | | | | | | | | | | |
Basic | $ | (0.86 | ) | | $ | (0.80 | ) | | $ | (0.88 | ) | | $ | 0.35 | |
Diluted | $ | (0.86 | ) | | $ | (0.80 | ) | | $ | (0.88 | ) | | $ | 0.35 | |
| | | | | | | | | | | | | | | |
Weighted-Average Class A Shares Outstanding | | | | | | | | | | | | | | | |
Basic | | 140,894,185 | | | | 141,722,881 | | | | 143,477,776 | | | | 145,751,664 | |
Diluted | | 140,894,185 | | | | 141,722,881 | | | | 143,477,776 | | | | 445,740,036 | |
| | | | | | | | | | | | | | | |
Selected Balance Sheet Data | | | | | | | | | | | | | | | |
Cash and cash equivalents | $ | 149,667 | | | $ | 171,207 | | | $ | 185,333 | | | $ | 162,485 | |
Assets of consolidated Och-Ziff funds | | 943,910 | | | | 1,106,705 | | | | 1,911,592 | | | | 2,850,754 | |
Total assets | | 2,140,550 | | | | 2,337,765 | | | | 3,136,980 | | | | 4,597,676 | |
Debt obligations | | 381,793 | | | | 389,990 | | | | 389,015 | | | | 388,043 | |
Liabilities of consolidated Och-Ziff funds | | 125,406 | | | | 183,849 | | | | 693,697 | | | | 1,297,096 | |
Total liabilities | | 1,299,282 | | | | 1,371,402 | | | | 1,896,646 | | | | 2,677,495 | |
Redeemable noncontrolling interests | | - | | | | - | | | | 7,820 | | | | 8,692 | |
Shareholders' deficit attributable to Class A Shareholders | | (352,005 | ) | | | (345,472 | ) | | | (357,526 | ) | | | (248,921 | ) |
Shareholders' equity attributable to noncontrolling interests | | 1,193,273 | | | | 1,311,835 | | | | 1,590,040 | | | | 2,160,410 | |
Total shareholders' equity | | 841,268 | | | | 966,363 | | | | 1,232,514 | | | | 1,911,489 | |
These results were prepared in accordance with GAAP and reflect all normal recurring adjustments that are, in the opinion of management, necessary for a fair presentation of the results.
The Company generally does not recognize incentive income during the first three quarters of the year other than amounts earned as a result of fund investor redemptions during the period or amounts earned from fund investors with measurement periods longer than one year. Additionally, compensation and benefits generally comprise a significant portion of total expenses, with discretionary cash bonuses comprising a large portion of total compensation and benefits expense. These cash bonuses are based on total annual revenues, which are significantly influenced by incentive income earned by the Company at the end of the year. Annual discretionary bonuses are generally determined and expensed in the fourth quarter each year.
Restatements and Reclassifications
As discussed in Note 2 to the Company’s consolidated financial statements included in this annual report, the Company restated the quarterly amounts previously reported in its 2012 third quarter and 2013 first through third quarters Form 10-Qs and in its 2012 Form 10-K due to material adjustments necessary to give effect to the consolidation of the Company’s CLOs. In addition, due to a change related to the accounting for previously deferred incentive income allocations from the consolidated Och-Ziff funds that remained subject to clawback, as well as the presentation of redeemable noncontrolling interests, the Company adjusted the prior period amounts presented above to conform to the current period presentation. See Note 2 for additional information.
F-49
