Exhibit 10.30
AGREEMENT OF PURCHASE AND SALE
AGREEMENT made as of this 29th day of October, 1998 by and between
William M. Knobler ("Knobler") residing at Marie Major Drive, Alpine, New Jersey
07620 and Atalanta/Sosnoff Management Corporation ("Management"), a New York
corporation, with its principal executive offices at 101 Park Avenue, New York,
NY 10178.
WHEREAS, Knobler owns, operates and retains the right to transfer an
investment management business (the "Knobler Business") conducted on the
premises of Management (and its affiliates Atalanta/Sosnoff Capital Corporation
(Delaware) ("Capital') and Atalanta/Sosnoff Capital Corporation ("Atalanta"))
(Management, Capital and Atalanta are collectively referred to herein as the
"Atalanta Entities.") in which he and his employees provide investment
supervisory and brokerage services to accounts of individuals and small
institutions (the "Accounts") on a discretionary basis pursuant to written
investment advisory agreements (A schedule of all of the Accounts in the Knobler
Business is annexed hereto as Schedule 1. A copy of the form of discretionary
account agreement currently in use in the Knobler Business is annexed hereto as
Exhibit A.);
WHEREAS, Knobler is a Senior Vice President of Management and, as an
employee of Management, is registered as a representative of Management with the
regulatory and self-regulatory agencies which have jurisdiction of the business
of Management, which, for regulatory purposes, includes the Knobler Business,
and Knobler is subject to the supervision of the designated compliance officers
of the Atalanta Entities and from time to time on an ad hoc basis participates
without separate compensation in the activities of the Investment Committee of
Capital and Management.
WHEREAS, currently, pursuant to a facilities agreement between Knobler
and the Atalanta Entities (the "Facilities Agreement"), Knobler receives all of
the pre-tax income of the Knobler Business ("Pre-Tax Income") determined by
deducting from the gross revenues received by the Atalanta Entities attributable
to the advisory fees and brokerage commissions generated by the Accounts managed
in the Knobler Business (the "Gross Revenues") the following amounts paid by the
Atalanta Entities: (i) sales payouts consisting of amounts due in respect of any
Account's advisory fees for finding and securing the Account for the Knobler
Business ("Sales Payouts"), (ii) direct expenses consisting of the salaries,
bonuses and benefits (excluding Sales Payouts) of persons who work directly and
exclusively in the Knobler Business, other itemized expenses, including clearing
and execution charges, direct general and administrative expenses and travel and
entertainment charges ("Direct Expenses"), and (iii) indirect facilities and
support expenses representing a charge for the indirect overhead expenses
attributable to the operation of the Knobler Business consisting of charges for
the use of the premises of the Atalanta Entities and administrative and
accounting support and related services provided to the Knobler Business
("Indirect Expenses").
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(A schedule of the Gross Revenues, Sales Payouts, Direct and Indirect Expenses
for the six months ended June 30, 1998 is annexed hereto as Schedule 2.)
WHEREAS, under the Facilities Agreement Knobler instructs the Atalanta
Entities how the Pre-Tax income of the Knobler Business is allocated and paid to
him in the form of salary and bonus each calendar year based upon his and the
Atalanta Entities projection of Gross Revenues, Sales Payouts and Direct and
Indirect Expenses.
WHEREAS, Knobler has determined that he wishes to sell, transfer,
assign and dispose of the Knobler Business to Management upon the terms and
conditions hereinafter set forth and to relinquish his rights to (i) sell,
transfer, assign or dispose of it to any other person and (ii) enforce the
Facilities Agreement, except to the extent expressly set forth herein, and
Management wishes to purchase, accept the transfer and assignment of, and
acquire the Knobler Business on the terms and conditions hereinafter set forth;
and
WHEREAS, Management has requested that, to assist it in the transition
to full direct operation and control of the Knobler Business, Knobler agree to
remain as an employee of Management for a two-year period and Knobler has agreed
to render such assistance.
NOW, THEREFORE, This Agreement
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W I T N E S S E T H:
For and in consideration of the mutual and dependent promises
hereinafter set forth and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale
(a) Effective Date. The Effective Date of the transfer of the
Knobler Business shall be deemed to occur as of September 30, 1998.
(b) No Closing. No closing shall occur in connection with the
purchase and sale of the Knobler Business.
2. Purchase Price
(a) Determination. The purchase price for the Knobler Business
shall be determined by multiplying the Gross Revenues earned by the Knobler
Business during the three months ended December 31, 1998 by 4 and multiplying
the product of that calculation by 2.25. The purchase price as so determined
(the "Purchase Price") shall be subject to adjustment as provided in Paragraph
2(c) hereof.
(b) Installment Payments. The Purchase Price shall be paid in
three
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installments of the indicated percentage of the Purchase Price as defined under
Paragraph 2(a) on the dates specified:
(i) The First Installment representing 50% of the
Purchase Price shall be paid on January 31, 1999;
(ii) The Second Installment ("Second Installment")
representing 25% of the Purchase Price shall be paid
on January 31, 2000; and
(iii) The Third Installment ("Third Installment")
representing 25% of the Purchase Price shall be paid
on January 31, 2001.
No interest shall be paid by Management on the deferred payment of the
Purchase Price.
(c) Adjustment in Installment Payments
(i) Based on Change in Gross Revenues
(A) Second Installment. The Second
Installment shall be adjusted by
adding to (or subtracting from) the
Second Installment 25% of the
positive (or negative) difference
between (x) the product of (i) 2.25
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multiplied by Gross Revenues for the
three months ended December 31,
1999, and (ii) 4 and (y) the
Purchase Price as determined in
accordance with Paragraph 2(a)
hereof.
(B) Third Installment. The Third
Installment shall be adjusted by
adding to (or subtracting from) the
Third Installment 25% of the
positive (or negative) difference
between (x) the product of (i) 2.25
multiplied by Gross Revenues for
the three months ended December 31,
2000, and (ii) 4 and (y) the
Purchase Price as determined in
accordance with Paragraph 2(a)
hereof.
(ii) Based on Termination of Employment of
Knobler prior to September 30, 2000. In the
event that Knobler's "Termination of
Employment" (as hereinafter defined in
paragraph 3(e) hereof) shall occur prior to
September 30, 2000, notwithstanding anything
to the contrary contained herein, instead of
the Purchase Price as computed in accordance
with Paragraph 2(a) hereof and adjusted in
accordance with Subparagraph 2(c)(i) and
paid as provided in Paragraph 2(b) hereof,
Knobler (his committee, estate or
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legal representatives) shall receive,
instead of the Second and/or Third
Installments, if Knobler's Termination of
Employment occurs prior to the respective
measuring dates for the adjustment thereof,
an adjusted amount determined on the basis
of the date of the Termination of Employment
and paid as set forth below. If the date of
Termination of Employment occurs:
(A) On or prior to September 30, 1999,
then instead of the Second and Third
Installments Knobler shall receive
50% of the product of (i) 4
multiplied by the Gross Revenues
earned by the Knobler Business
during the second full calendar
quarter following the date of
Termination of Employment, and (ii)
2.25.
(B) Prior to September 30, 2000 and on
or after October 1, 1999, then
instead of the Third Installment
Knobler shall receive 25% of the
product of (i) 4 multiplied by the
Gross Revenues earned by the Knobler
Business during the second full
calendar quarter following the date
of Termination of Employment (as
hereinafter defined), and (ii) 2.25.
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Payment of amounts due pursuant to clauses
2(c)(ii)(A) or (B) hereof shall be made
within 45 days of the end of the second full
calendar quarter following the date of
Termination of Employment. For the purposes
of this subparagraph 2(c)(ii) only, the date
of Termination of Employment shall be deemed
to have occurred as of the last day of the
calendar quarter immediately preceding the
date of Termination of Employment as
otherwise determined hereunder.
3. Employment of Knobler; Consulting by Knobler
(a) Duties and Title. Knobler shall devote his full time and
energies during regular business hours to the management of the Knobler Business
reporting to the President and/or Chief Operating Officer of Management (as they
shall determine between them) and the Board of Directors of Management. He shall
continue to have the title of Senior Vice President.
(b) Term. Knobler shall be employed hereunder by Management
from the date hereof until December 31, 2000, unless a Termination of Employment
shall occur sooner as provided herein.
(c) Authority. Knobler shall have general operational
authority over the
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Knobler Business purchased hereunder by Management, subject to his reporting
obligations, and shall exercise the discretion he has exercised heretofore,
subject to the following guidelines to assure that during the period of
transition to full direct operation and control of the Knobler Business by
Management personnel, other than Knobler, the value of the Knobler Business is
preserved and enhanced:
(i) Knobler shall regularly consult with the
President and/or Chief Operating Officer (as
they shall determine between them) with
respect to all aspects of the Knobler
Business and shall actively seek to directly
involve one of them or their designee in all
aspects of the Knobler Business.
(ii) Management shall identify to Knobler and
allocate to the Knobler Business on a part
time basis a mutually acceptable research
person who shall work closely with Knobler
for the purpose of learning about and
emulating, to the extent deemed appropriate,
the investment supervisory services
currently provided by Knobler and of being
introduced to the clients in the Knobler
Business with a view to assuming direct
responsibility for the provision of such
services without Knobler's assistance by
December 31, 2000.
(iii) Knobler shall retain the authority to
authorize expenditures
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on behalf of the Knobler Business, subject
to the following limitations on expenses
authorized by him:
(A) Direct Expenses of the Knobler
Business, including Direct Expenses
set forth in clause 3(c)(iii)(B),
shall not exceed 35% of Gross
Revenues.
(B) Employee salaries, bonuses and
benefits (excluding Sales Payouts
and salary, bonuses and benefits
payable to Knobler) shall not exceed
the larger of (i) $180,000 per
annum, or (ii) 15% of Gross
Revenues;
(C) Sales payouts shall not exceed 20%
of Gross Revenues generated by any
Account; and
(D) Payments in respect of Indirect
Expenses of the Knobler Business
shall be maintained at levels in
effect as of the date hereof, shall
not be separately charged to
Knobler and effectively shall be
shared by Knobler and Management in
the same proportions in which they
share Pre-Tax Income hereunder by
reason of the deduction of Indirect
Expenses from Gross Revenues in
determining Pre-Tax Income.
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Expenses incurred, authorized by Knobler and not within the foregoing
limitations, shall be charged to amounts otherwise due Knobler hereunder.
(d) Salary and Bonus
In accordance with the course of dealing heretofore in effect
between Knobler and Management as modified by this Agreement, for periods prior
to Knobler's Termination of Employment, Knobler shall receive as compensation
for his services in maintaining the value of the Knobler Business for the
account of Management and assisting in the transition of the Knobler Business to
the direct control and operation thereof by Management, an amount equal to 50%
of the Pre-Tax Income of the Knobler Business during the twelve month period
ended September 30, 1999, 25% of the Pre-Tax Income of the Knobler Business
during the twelve month period ended September 30, 2000 and 15% of the Gross
Revenues of the Knobler Business, payable quarterly in arrears, during the three
month period ended December 31, 2000. Should the Termination of Employment of
Knobler occur on a date other than the foregoing enumerated dates, the amount
shall be prorated for the number of whole months during which Knobler was
employed during the applicable period. Payouts to Knobler may be made in the
form of salary or bonus, as Knobler and Management shall agree.
(e) Termination of Employment
The employment of Knobler hereunder shall terminate
on the date
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of Termination of Employment of Knobler. Termination of Employment shall mean
the first to occur of the following:
(i) December 31, 2000
(ii) Knobler's death
(iii) Knobler's resignation
(iv) Knobler's "disability". For the purposes
hereof, "disability" shall mean the
inability of Knobler to perform his work on
a substantially full time basis for more
than six consecutive months or nine
non-consecutive months during the two year
and three month term of his employment
hereunder by reason of physical or mental
illness as determined by a physician
selected by Management.
(v) The dismissal of Knobler for "cause". For
the purposes hereof "cause" shall mean that
Knobler shall have been convicted of a crime
involving moral turpitude or have been found
in a non-appealable judgment to have
committed fraud involving securities or
commodities related activities.
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(f) Consulting/Continued Employment. Subject to such
additional terms and conditions as Knobler and Management shall agree, and
Knobler's and Management's agreement to continue Knobler's involvement in the
Knobler Business, Knobler may continue to participate in the management of the
Knobler Business as a consultant or as an employee of Management after December
31, 2000. During such period of consulting activities or his tenure as an
employee, Knobler shall receive compensation equal to 15% of the Gross Revenues
of the Knobler Business, payable quarterly in arrears.
(g) Restricted Activities
(i) During the period Knobler is
employed hereunder and during the
period, if any, when he provides
consulting services hereunder, and
for a period of two (2) years after
the end of such periods (the
"Non-Competition Period"), Knobler
shall not, directly or indirectly
whether as owner, partner,
investor, consultant, agent,
employee, coventurer or otherwise,
compete with the Atalanta Entities
within the United States or
undertake with any third party any
planning for any business
competitive with the Atalanta
Entities. Specifically, but without
limiting the foregoing, Knobler
agrees not to engage in any manner
in any activity
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that is directly or indirectly
competitive with the business of the
Atalanta Entities as conducted or
under active development at any time
during the periods of Knober's
employment or consultancy. For the
purposes hereof, the business of the
Atalanta Entities shall include the
direct or indirect provision of
investment supervisory or management
services and/or brokerage services
on a direct basis or through
registered or unregistered
investment pools such as investment
partnerships, corporations or
trusts.
(ii) Knobler agrees that, during his
employment or consultancy hereunder,
he will not undertake any outside
activity, whether or not competitive
with the business of the Atalanta
Entities, that could reasonably give
rise to a conflict of interest or
otherwise interfere with his duties
and obligations to the Atalanta
Entities.
(iii) Knobler further agrees that while he
is employed by or consults to
Management hereunder and during the
Non-Competition Period, Knobler will
not hire or
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attempt to hire any employee of the
Atalanta Entities, assist in such
hiring by any Person, encourage any
such employee to terminate his or
her relationship with the Atalanta
Entities, or solicit or encourage
any client or vendor of the Atalanta
Entities to terminate or diminish
its relationship with them or, in
the case of a client, to conduct
with any Person any business or
activity which such client conducts
or could conduct with the Atalanta
Entities. "Person" means an
individual, a corporation, an
association, a partnership, an
estate, a trust and any other entity
or organization, other than the
Atalanta Entities.
(h) Enforcement. Knobler recognizes that his agreement to the
terms and conditions of Paragraph (g) represents a material inducement to the
Atalanta Entities to purchase the Knobler Business and continue the Knobler
employment. Knobler acknowledges that irreparable injury may result to the
Atalanta Entities and that the Atalanta Entities will have no adequate remedy at
law in the event that Knobler breaches any of the provisions of Paragraph (g).
Accordingly, Knobler agrees that in the event of a breach by Knobler of any of
the provisions of Paragraph (g), the Atalanta Entities shall, in addition to all
other rights and remedies, be entitled to injunctive relief with respect to such
breach and/or to a decree for specific performance of the terms of such
subparagraph, in each instance without the necessity of showing any irreparable
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injury or special damages. Notwithstanding the foregoing, Paragraph (g) hereof
shall not be enforcible if prior to the breach of any of the provisions thereof,
Management shall have failed to make payments to Knobler required to be made by
the terms of this Agreement.
4. Representations and Warranties About Knobler Business
(a) Sole Ownership. Knobler represents and warrants that he is
the sole owner of the Knobler Business and that no other person has any
interest, direct or indirect, fixed or contingent, beneficial or legal, in the
Knobler Business, including any interest in Gross Revenues, except as set forth
on Schedule 1 annexed hereto and except for such interest as may inure to the
Atalanta Entities under the Facilities Agreement.
(b) Authority to Convey; No Conflicts. Knobler represents and
warrants that he has the sole power and authority to convey the Knobler Business
without the participation or consent of any other person, except to the extent
that he may be required to secure the consent of his clients to the transfer
thereof, and that no filings with any public or private regulatory or
self-regulatory bodies are required in connection therewith. The sale, transfer,
assignment and conveyance of the Knobler Business to Management does not
conflict with, is not inconsistent with, is not prohibited by and does not give
rise to any right of action in any person, under any contract, agreement,
arrangement or understanding with Knobler or any judgment or
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order to which the Knobler Business is subject.
(c) Absence of Claims. Knobler represents and warrants that no
person has asserted any claim, and no state of facts exists which could form the
basis for any claim, for damages allegedly arising out, relating to or otherwise
connected with, the conduct of the Knobler Business by Knobler or by (i) persons
reporting to Knobler whose salaries, bonuses and fringe benefits are part of the
Direct Expenses of the Knobler Business ("Knobler Employees"), or (ii) by any
other person who asserts that he is acting as an agent or representative for
Knobler or the Knobler Employees.
(d) Lawful Conduct of Knobler Business. Knobler represents and
warrants that he and the Knobler Employees have not engaged in any conduct or
course of dealing, by action or omission, alone or with others, or caused or
permitted the Knobler Business to engage in any such conduct or course of
dealing, which violates any federal or local securities or commodities laws or
regulations or the rules of any regulatory or self-regulatory agency having
jurisdiction over Knobler, the Knobler Employees or the Knobler Business.
5. Notice to Clients of Knobler Business.
Knobler shall provide prompt written notice to the clients of
the Knobler Business of the transfer to be effected by this Agreement. Knobler
shall consult with counsel to determine whether the transfer of ownership of the
Knobler Business to
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Management constitutes an assignment of the investment advisory contracts of the
clients of the Knobler Business under the Investment Advisors Act of 1940 which
requires such clients' consent. If required, Knobler shall solicit their active
or "negative consent". The notice to clients and any required client consent
solicitation shall be subject to Management's review and approval.
6. Further Assurances
Knobler shall take all steps necessary, appropriate or
desirable to vest in Management ownership of all right, title and interest in
and to the Knobler Business and shall, at Management's request, furnish to it or
any third party such documentation with respect to such transfer and
Management's ownership as Management shall reasonably require.
7. Indemnity; Right of Set-Off
Knobler shall indemnify and hold harmless the Atalanta
Entities and their officers, directors, employees and agents from and against
any claim, judgment, award or damages (including the costs of investigation and
of any settlement) arising out of, relating to or connected with (i) the breach
of any representation or warranty made herein by Knobler or the conduct of
Knobler and the Knobler Employees in the operation of the Knobler Business prior
to the date hereof or (ii) for the conduct of Knobler or the Knobler Employees,
subject to his direct supervision and control and
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arising as a direct result of his actions or omissions, during the transition
period ended December 31, 2000. Any damages resulting therefrom may be satisfied
by application of, and set off against, amounts otherwise due Knobler hereunder.
8. Successors
(a) Management will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Management, by agreement in
form and substance satisfactory to Knobler, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that Management
would be required to perform it if no such succession had taken place. As used
in this Agreement, Management shall mean Management as hereinbefore defined and
any successor to its business and/or assets as aforesaid which executes and
delivers the Agreement provided for in this paragraph or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.
(b) In the event Knobler's employment under this Agreement
shall terminate for any reason while any amounts have been earned but not paid
as of the applicable Termination of Employment as defined herein or are
otherwise due Knobler under the terms hereof or by reference thereto, then the
right to receive such amount shall survive and be enforceable after the
Termination of Employment hereunder by Knobler, his successors, assigns,
executors, administrators, heirs, legatees, devisees
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or legal representatives.
9. Notices
For the purposes of this Agreement, any notices or other
communications provided for or permitted in this Agreement shall be in writing
and shall be deemed to have been duly given three days after it is mailed by
United States registered or certified mail, return receipt requested, postage
prepaid, when it is transmitted by facsimile transmission or delivered by
messenger addressed as follows:
If to Knobler: William M. Knobler
Marie Major Drive
Alpine, New Jersey 07620
If to the Company: Atalanta/Sosnoff Management Corporation
101 Park Avenue
New York, New York 10178
Attention: Anthony G. Miller,
Executive Vice President and
Chief Operating Officer
With a copy to: Stephen C. Kahr, Esq.
Greenberg & Kahr
230 Park Avenue
New York, New York 10169
or to such other address as any such person may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
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10. Amendment and Waiver
No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
signed by Knobler and a duly authorized officer of Management. No waiver by
either party hereto at any time of any breach by the other party hereto of any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
11. Choice of Law
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of New York without
reference to conflicts of laws.
12. Severability; Survivability
It is the intent of the parties hereto that in case any one or more of
the provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not
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affect the other provisions of this Agreement, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein. The provisions of Paragraphs 3(g) and 3(h) of this Agreement
shall survive the expiration of termination of Knobler's employment hereunder,
whether during the period set forth in Paragraph 3(b) of this Agreement or
thereafter, and the termination of this Agreement.
13. Counterparts
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Only Agreement
From and after the Effective Date, this Agreement shall
supersede any and all prior employment or facilities agreements between the
parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
ATALANTA/SOSNOFF MANAGEMENT CORPORATION
By: s/ Martin T. Sosnoff
---------------------------------------
Martin T. Sosnoff, Chairman of the Board
and Chief Executive Officer
s/ William M. Knobler
---------------------------------------
William M. Knobler
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