Exhibit 10.21
EXECUTION COPY
PURCHASE AGREEMENT
by and among
AFFILIATED MANAGERS GROUP, INC.,
FRIESS ASSOCIATES, INC.,
FRIESS ASSOCIATES OF DELAWARE, INC.,
THE STOCKHOLDERS OF FRIESS ASSOCIATES, INC.,
THE STOCKHOLDERS OF FRIESS ASSOCIATES OF DELAWARE, INC.,
NCCF SUPPORT, INC.
and
THE COMMUNITY FOUNDATION OF JACKSON HOLE
DATED AS OF AUGUST 28, 2001
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TABLE OF CONTENTS
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SECTION 1. PURCHASE OF CERTAIN OF FAI'S WY LLC INTERESTS; AND
CERTAIN OF FAID'S DE LLC INTERESTS; PURCHASE OF THE
CHARITIES' WY LLC INTERESTS AND FF'S DE LLC INTERESTS........3
1.1 General........................................................3
1.2 Purchase Price; Delivery of LLC Interests......................3
1.3 Time and Place of Closing......................................5
1.4 Further Assurances.............................................6
1.5 Transfer Taxes.................................................6
1.6 Continuation of Existing Friess Investments; Investment
of Transaction Proceeds......................................6
SECTION 2. CONTRIBUTIONS OF ASSETS AND RESTATEMENT OF LLC AGREEMENTS......8
2.1 DE LLC Asset Transfer..........................................8
2.2 WY LLC Asset Transfer..........................................8
2.3 Charitable Contributions.......................................9
2.4 Restated LLC Agreements........................................9
SECTION 3. JOINT AND SEVERAL REPRESENTATIONS AND WARRANTIES OF THE
FRIESS COMPANIES AND THE STOCKHOLDERS........................9
3.1 Making of Representations and Warranties.......................9
3.2 Organization and Qualification of the Friess Companies
and the LLCs.................................................9
3.3 Capital Stock of FAI and FAID.................................11
3.4 Subsidiaries..................................................13
3.5 Authority.....................................................14
3.6 Real and Personal Property....................................16
3.7 Assets Under Management.......................................17
3.8 Financial Statements..........................................19
3.9 Taxes.........................................................20
3.10 Collectibility of Accounts Receivable.........................21
3.11 Absence of Certain Changes....................................22
3.12 Ordinary Course...............................................22
3.13 Banking Relations.............................................22
3.14 Intellectual Property.........................................22
3.15 Contracts.....................................................24
3.16 Litigation....................................................26
3.17 Compliance with Laws..........................................26
3.18 Business; Registrations.......................................27
3.19 Insurance.....................................................28
3.20 Powers of Attorney............................................29
3.21 Finder's Fee..................................................29
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3.22 Corporate Records; Copies of Documents........................29
3.23 Transactions with Interested Persons..........................29
3.24 Employee Programs.............................................29
3.25 Directors, Officers and Employees.............................31
3.26 Non-Foreign Status............................................32
3.27 Transfers of Equity...........................................32
3.28 Code of Ethics; Insider Trading and Conflicts Policies........32
3.29 Certain Representations and Warranties as to the Mutual
Funds.......................................................33
3.30 Disclosure....................................................36
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE CHARITIES...............37
4.1 Making of Several Representations and Warranties..............37
4.2 LLC Interests Owned by the Charities..........................37
4.3 Authority of the Charities....................................37
4.4 Agreements....................................................38
4.5 Finder's Fee..................................................38
SECTION 5. COVENANTS OF THE FRIESS COMPANIES, THE STOCKHOLDERS AND
THE CHARITIES...............................................38
5.1 Making of Covenants and Agreements............................38
5.2 Client Consents...............................................38
5.3 Advisers Act Authorizations...................................41
5.4 Authorization from Others.....................................42
5.5 Conduct of Business...........................................42
5.6 Financial Statements..........................................44
5.7 Preservation of Business and Assets...........................45
5.8 Notice Rights and Access......................................45
5.9 Notice of Default.............................................45
5.10 Consummation of Agreement.....................................46
5.11 Cooperation of the Friess Companies, the Stockholders and
the Charities...............................................46
5.12 No Solicitation of Other Offers...............................46
5.13 Confidentiality...............................................46
5.14 Policies and Procedures.......................................47
5.15 Subsidiaries; Investments in Other Persons....................47
5.16 LLC Interests, FAI Shares and FAID Shares; Other Agreements...47
5.17 Employee Programs.............................................47
5.18 Foreign Qualifications........................................48
5.19 Section 15 of the Investment Company Act......................48
SECTION 6. COVENANTS OF THE FRIESS COMPANIES, THE STOCKHOLDERS AND
AMG WITH RESPECT TO CERTAIN TAX MATTERS.....................48
6.1 Section 197(f)(9).............................................48
6.2 Tax Periods Ending on or Before the Date of the Closing.......48
6.3 Cooperation on Tax Matters....................................49
6.4 Other Tax and Accounting Matters..............................49
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SECTION 7. REPRESENTATIONS AND WARRANTIES OF AMG.........................50
7.1 Making of Representations and Warranties......................50
7.2 Organization..................................................50
7.3 Authority.....................................................50
7.4 Litigation....................................................51
7.5 Acquisition for Investment....................................51
7.6 Disclosure....................................................51
7.7 Finder's Fee..................................................52
SECTION 8. COVENANTS OF AMG..............................................52
8.1 Making of Covenants and Agreement.............................52
8.2 Cooperation of AMG............................................52
8.3 Notice of Default.............................................52
8.4 Consummation of Agreement.....................................52
8.5 Section 15 of the Investment Company Act......................52
SECTION 9. CONDITIONS TO THE OBLIGATIONS OF AMG..........................53
9.1 Litigation; No Opposition.....................................53
9.2 Representations, Warranties and Covenants.....................53
9.3 Client Consents...............................................54
9.4 Registration as an Investment Adviser and Registration of
Investment Adviser Representatives..........................57
9.5 Other Approvals...............................................57
9.6 Transfer......................................................58
9.7 Restated LLC Agreements.......................................58
9.8 Employment Agreements.........................................58
9.9 Non-Solicitation Agreements...................................58
9.10 Net Worth and Working Capital of the LLCs.....................58
9.11 Delivery......................................................59
9.12 Insurance.....................................................61
9.13 Policies and Procedures.......................................61
9.14 Mutual Fund Boards............................................61
SECTION 10. CONDITIONS TO OBLIGATIONS OF THE FRIESS COMPANIES,
THE CHARITIES AND THE STOCKHOLDERS.........................61
10.1 No Litigation; No Opposition..................................61
10.2 Representations, Warranties and Covenants.....................61
10.3 Advisory Client Consent.......................................62
10.4 Delivery......................................................62
10.5 Registration as an Investment Adviser.........................62
10.6 Other Approvals...............................................63
10.7 Section 15 Compliance.........................................63
SECTION 11. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED...................63
11.1 Termination...................................................63
11.2 Effect of Termination.........................................64
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11.3 Right to Proceed..............................................64
SECTION 12. SUBSEQUENT CLOSING............................................64
12.1 General.......................................................64
12.2 Subsequent Purchase Price; Delivery of LLC Points.............65
12.3 Time and Place of Subsequent Closing..........................66
12.4 Further Assurances............................................67
12.5 Transfer Taxes................................................67
12.6 Amendment of Schedule A to Restated LLC Agreements............67
12.7 Conditions to Subsequent Purchase.............................68
SECTION 13. INDEMNIFICATION...............................................69
13.1 Joint and Several Indemnification by the Stockholders.........69
13.2 Several Indemnification by the Charities......................70
13.3 Limitations on Indemnification by the Stockholders and the
Charities...................................................70
13.4 Indemnification by AMG........................................71
13.5 Limitation on Indemnification by AMG..........................71
13.6 Notice; Defense of Claims.....................................72
13.7 Satisfaction of Stockholder Indemnification Obligations.......73
13.8 Other Indemnification Matters.................................74
13.9 Survival of Representations, Warranties, Covenants and
Agreements..................................................74
13.10 Regulatory Filings............................................75
SECTION 14. DEFINITIONS...................................................75
14.1 Definitions...................................................75
SECTION 15. MISCELLANEOUS.................................................88
15.1 Fees and Expenses.............................................88
15.2 Dispute Resolution............................................89
15.3 Waivers.......................................................89
15.4 Governing Law.................................................89
15.5 Notices.......................................................89
15.6 Entire Agreement..............................................91
15.7 Assignability; Binding Effect.................................91
15.8 Captions and Gender...........................................92
15.9 Execution in Counterparts.....................................92
15.10 Amendments....................................................92
15.11 Publicity and Disclosures.....................................92
15.12 Consent to Jurisdiction.......................................92
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EXHIBITS
Exhibit 2.1 Form of DE LLC Asset Transfer Agreement
Exhibit 2.2A FAI-WY LLC Asset Transfer Agreement
Exhibit 2.2B FAID-WY LLC Asset Transfer Agreement
Exhibit 5.2A Form of Initial Client Consent Request Letter (other
than New Contract Clients)
Exhibit 5.2B Form of Initial Client Consent Request Letter (New
Contract Clients)
Exhibit 9.11(j)(i) Form of Opinion of Skadden, Arps, Slate, Meagher &
Flom LLP, as counsel to the Friess Companies and the
Stockholders
Exhibit 9.11(j)(iii) Form of Opinion of McGuireWoods LLP, as regulatory
counsel to the Friess Companies and the Mutual Funds
sponsored by the Friess Companies
Exhibit 9.11(j)(iv) Form of Opinion of Richards, Layton & Finger, P.A., as
counsel to the Majority Management Owners (other
than FF)
Exhibit 9.11(k) Form of Release
Exhibit 9.11(l) Transferor's Certificate of Non-Foreign Status
Exhibit 10.4(e) Form of Opinion of Counsel to AMG, FA (WY) Acquisition
and FA (DE) Acquisition
Exhibit 12.2(e) Form of Subsequent Closing Transfer Agreement
SCHEDULES
Schedule 1.2 List of Management Owners; Allocation of Purchase Price
Schedule 1.6(a) Applicable Friess Investors
Schedule 3.3(a) Capital Stock of the Company
Schedule 3.3(b) Claims Against Stockholders
Schedule 3.3(d) Ownership of WY LLC Interests
Schedule 3.4(b)(i) LLCs' Capitalization Pre Closing
Schedule 3.4(b)(ii) LLCs' Capitalization Post Closing and Asset Transfers
Schedule 3.5 Approvals; Waivers
Schedule 3.6(a) Real Property
Schedule 3.6(b) Material Assets
Schedule 3.7(a) Advisory Contracts; Assets Under Management
Schedule 3.7(f) Existing Regulatory Relief
Schedule 3.8(a) Financial Statements
Schedule 3.8(b) Liabilities of the Friess Companies as of Base Balance
Sheet Date
Schedule 3.9(b) Tax Returns
Schedule 3.10 Accounts Receivable
Schedule 3.11 Adverse Changes
Schedule 3.13 Banking Relations
Schedule 3.14 Intellectual Property
Schedule 3.15 Contracts
Schedule 3.16 Litigation
Schedule 3.17 Compliance with Laws
Schedule 3.18(b) Employees Rendering Investment Management Services
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Schedule 3.19 Insurance
Schedule 3.23 Transactions with Interested Persons
Schedule 3.24 Employee Programs
Schedule 3.25(a) Directors and Officers; Certain Employees; Good Health
Schedule 3.25(b) Payments Due to Employees
Schedule 3.29(a) Mutual Fund Agreements
Schedule 5.5 Conduct of Business
Schedule 5.16 Side Letters
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT (the "Agreement") is entered into as of
August 28, 2001, by and among (i) Affiliated Managers Group, Inc., a Delaware
corporation ("AMG"), (ii) Friess Associates, Inc., a Delaware corporation
("FAI"), (iii) Friess Associates of Delaware, Inc., a Delaware corporation
("FAID" and, collectively with FAI, the "Friess Companies"), (iv) NCCF Support,
Inc., a Georgia non-profit corporation ("NCCF"), and The Community Foundation of
Jackson Hole, a Wyoming non-profit corporation ("CFJH" and, collectively with
NCCF, the "Charities"), (v) Foster S. Friess ("FF") and Lynnette E. Friess
("LF"), in their capacity as holders of capital stock of FAI (collectively in
such capacity, the "FAI Stockholders"), and (vi) FF and LF, in their capacity as
holders of capital stock of FAID (collectively in such capacity, the "FAID
Stockholders"; the FAI Stockholders and the FAID Stockholders, collectively, the
"Stockholders").
W I T N E S S E T H:
WHEREAS, the Friess Companies and the WY LLC (as defined below) are
engaged in the business of providing Investment Management Services;
WHEREAS, (i) the FAI Stockholders, own of record and beneficially
all of the issued and outstanding capital stock of FAI, and (ii) the FAID
Stockholders own of record and beneficially all of the issued and outstanding
capital stock of FAID;
WHEREAS, Friess Associates, LLC is a Delaware limited liability
company (the "WY LLC") engaged in the business of providing Investment
Management Services, a majority of the issued and outstanding membership
interests in which (the "WY LLC Interests") are owned of record and beneficially
by FAI, with all other issued and outstanding WY LLC Interests owned of record
and beneficially collectively by the Management Owners (other than FF) and the
Charities;
WHEREAS, in connection with the transactions contemplated hereby,
FAID has formed Friess Associates of Delaware, LLC, a Delaware limited liability
company (the "DE LLC" and, collectively with the WY LLC, the "LLCs") a majority
of the issued and outstanding membership interests in which (the "DE LLC
Interests" and, collectively with the WY LLC Interests, the "LLC Interests") are
owned of record and beneficially by FAID, with all other issued and outstanding
DE LLC Interests owned of record and beneficially by FF;
WHEREAS, on June 1, 2001, (i) FAI contributed substantially all of
its assets and certain of its liabilities to the WY LLC and (ii) FAID
contributed certain of its assets and liabilities to the WY LLC;
WHEREAS, in connection with the Closing (as defined herein), FAID
will contribute substantially all of its assets and certain of its liabilities
to the DE LLC;
WHEREAS, in connection with the transactions contemplated hereby,
AMG has formed FA (WY) Acquisition Company, Inc., a Delaware corporation and a
wholly-owned subsidiary of AMG ("FA (WY) Acquisition"), and FA (DE) Acquisition
Company, LLC, a Delaware limited liability company and a wholly-owned subsidiary
of AMG ("FA (DE)
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Acquisition"), and on the terms and subject to the conditions set forth herein,
AMG has agreed to cause (i) FA (WY) Acquisition to purchase from FAI (A) at the
Closing, certain of the WY LLC Interests owned by FAI and (B) at the Subsequent
Closing, certain additional WY LLC Interests owned by FAI, (ii) FA (WY)
Acquisition to purchase from the Charities at the Closing, all of the WY LLC
Interests owned by the Charities, (iii) FA (DE) Acquisition to purchase from
FAID (A) at the Closing, certain of the DE LLC Interests owned by FAID and (B)
at the Subsequent Closing, certain additional DE LLC Interests owned by FAID,
and (iv) FA (DE) Acquisition to purchase from FF at the Closing, all of the DE
LLC Interests owned by FF;
WHEREAS, on the terms and subject to the conditions set forth in
that certain Management Owner Purchase Agreement of even date herewith (the
"Management Owner Purchase Agreement"), AMG has agreed to cause FA (WY)
Acquisition to purchase from the Management Owners (other than FF) at the
Closing all of the WY LLC Interests owned by such Management Owners;
WHEREAS, as a condition precedent to AMG's willingness to enter into
this Agreement and consummate the transactions contemplated hereby, and as a
material component of the sale of the Friess Companies' business provided for
herein, (i) each of the Majority Management Owners has entered into an
Employment Agreement with either the DE LLC and FA (DE) Acquisition, or the WY
LLC and FA (WY) Acquisition, in each case dated as of the date hereof
(collectively, the "Employment Agreements"), and (ii) each of the other
Management Owners has entered into a Non-Solicitation/Non-Disclosure Agreement
with either the DE LLC and FA (DE) Acquisition, or the WY LLC and FA (WY)
Acquisition, in each case dated as of the date hereof (collectively, the
"Non-Solicitation Agreements");
WHEREAS, (i) FAID, each of the FAID Stockholders, and FA (DE)
Acquisition have executed and delivered the Restated DE LLC Agreement, and (ii)
FAI, each of the Management Owners and FA (WY) Acquisition have executed and
delivered the Restated WY LLC Agreement, each such agreement to become effective
as of (and subject to) the Closing;
WHEREAS, to induce the other parties to enter into this Agreement,
AMG, the Friess Companies, the Charities and the Stockholders have agreed to
make certain representations, warranties and covenants as set forth herein.
Capitalized terms used herein have the meanings given to such terms in Section
14.1 hereof.
NOW, THEREFORE, in order to consummate the transactions contemplated
hereby, and in consideration of the mutual agreements set forth herein and other
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
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SECTION 1. PURCHASE OF CERTAIN OF FAI'S WY LLC INTERESTS; AND CERTAIN OF FAID'S
DE LLC INTERESTS; PURCHASE OF THE CHARITIES' WY LLC INTERESTS AND
FF'S DE LLC INTERESTS.
1.1 GENERAL. Upon the terms contained in this Agreement (including
without limitation the conditions contained in Section 9), and on the basis of
the representations, warranties and covenants herein set forth, AMG hereby
agrees:
(i) To cause FA (WY) Acquisition to purchase from FAI, and FAI
hereby agrees to sell to FA (WY) Acquisition, at the Closing all of the WY
LLC Interests owned by FAI (the "FAI WY LLC Purchase"), other than those
LLC Points and the Capital Account (each as defined in the Restated WY LLC
Agreement) associated therewith of the WY LLC that will be owned by FAI as
of immediately following the Closing as set forth on Schedule A to the
Restated WY LLC Agreement (such retained LLC Points and Capital Account
being referred to hereinafter as the "Retained WY LLC Interest");
(ii) To cause FA (WY) Acquisition to purchase from each Charity, and
each Charity hereby agrees to sell to FA (WY) Acquisition, at the Closing
all of the WY LLC Interests owned by such Charity (collectively, the
"Charities WY LLC Purchase" and, collectively with the FAI WY LLC
Purchase, the "WY LLC Purchase");
(iii) To cause FA (DE) Acquisition to purchase from FAID, and FAID
hereby agrees to sell to FA (DE) Acquisition, at the Closing all of the DE
LLC Interests owned by FAID (the "FAID DE LLC Purchase"), other than those
LLC Points and the Capital Account (each as defined in the Restated DE LLC
Agreement) associated therewith of the DE LLC that will be owned by FAID
as of immediately following the Closing as set forth on Schedule A to the
Restated DE LLC Agreement (such retained LLC Points and Capital Account
being referred to hereinafter as the "Retained DE LLC Interest" and,
collectively with the Retained WY LLC Interest, the "Retained LLC
Interests");
(iv) To cause FA (DE) Acquisition to purchase from FF, and FF hereby
agrees to sell to FA (DE) Acquisition, at the Closing all of the DE LLC
Interests owned by FF (the "FF DE LLC Purchase" and, collectively with the
FAID DE LLC Purchase, the "DE LLC Purchase"; the DE LLC Purchase,
collectively with the WY LLC Purchase, the "Purchase").
1.2 PURCHASE PRICE; DELIVERY OF LLC INTERESTS.
(a) Upon the terms contained in this Agreement (including without
limitation the conditions contained in Section 9), at the Closing:
(i) AMG shall cause FA (WY) Acquisition to deliver by wire transfer
to FAI (subject to Section 1.6 below) and the Charities, at bank accounts
to be designated in writing by FAI to AMG at least two (2) business days
prior to the Closing Date, an aggregate amount equal to the WY LLC Closing
Purchase Price, in immediately available funds, in full consideration for
the sale to AMG of (A) all of the WY LLC Interests owned by FAI (other
than the Retained WY LLC Interest) and (B) all of the WY
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LLC Interests owned by each of the Charities; the WY LLC Closing Purchase
Price shall be paid to FAI and each of the Charities in the specific
respective percentages set forth in SCHEDULE 1.2 hereto (PROVIDED that the
amount to be paid to each Charity shall be reduced by 6/70ths of the
aggregate expenses (including, without limitation, legal, accounting and
investment banking fees) incurred by FAI and the Charities in connection
with the transactions contemplated hereby (with such reduction amounts to
be notified by FAI to AMG and the Charities in writing at least two (2)
business days prior to the Closing Date), and the amount of each such
reduction shall instead be paid directly to FAI in satisfaction of the
Charities' obligations to FAI in respect of such expenses); and
(ii) AMG shall cause FA (DE) Acquisition to deliver by wire transfer
to FAID and FF (subject to Section 1.6 below), at bank accounts to be
designated in writing by FAID to AMG at least two (2) business days prior
to the Closing Date, an aggregate amount equal to the DE LLC Closing
Purchase Price, in immediately available funds, in full consideration for
the sale to AMG of (A) all of the DE LLC Interests owned by FAID (other
than the Retained DE LLC Interest) and (B) all of the DE LLC Interests
owned by FF; the DE LLC Closing Purchase Price shall be paid to FAID and
FF in the specific respective amounts set forth in SCHEDULE 1.2 hereto;
(b) If, as of the Closing, the WY LLC has received Consents with
respect to Advisory Contracts having an aggregate Contract Value (as of the
Closing) constituting less than one hundred percent (100%) of the Base Fees,
then the payments delivered to FAI, each of the Charities, FAID and FF pursuant
to Section 1.2(a) above will be reduced to an amount equal to the product of (i)
the amount that would have otherwise been payable to FAI, each of the Charities
and FAID at the Closing without regard to this Section 1.2(b) in accordance with
the percentages set forth in SCHEDULE 1.2 hereto, multiplied by (ii) the
Consenting Percentage (expressed as a decimal) (and the aggregate amounts of the
WY LLC Closing Purchase Price and the DE LLC Closing Purchase Price will be
commensurately reduced). The "Consenting Percentage" shall be equal to (i) the
sum of the Contract Values as of the Closing for those Advisory Contracts with
respect to which the WY LLC has received Consents from Clients, divided by (ii)
the Base Fees; PROVIDED, HOWEVER, that Advisory Contracts with Related Clients
shall be excluded from clause (i) of such calculation to the extent their
aggregate Contract Values exceeds two hundred and seventy five million dollars
($275,000,000). The aggregate amount of any reduction to the WY LLC Closing
Purchase Price and the DE LLC Closing Purchase Price pursuant to this Section
1.2(b) is hereinafter referred to as the "Reduction Amount."
(c) Within ten (10) business days following the date which is
forty-five (45) days after the Closing Date (the "Closing True-Up Date"), AMG
hereby agrees to cause FA (WY) Acquisition and FA (DE) Acquisition to deliver by
wire transfer, to the same Persons who received payments from them on the
Closing Date pursuant to Section 1.2(a) hereof (with such aggregate payment to
be made to such Persons in the same respective proportions as their respective
receipt of the aggregate payments made on the Closing Date pursuant to Section
1.2(a) hereof, and to be paid to the same bank accounts used for the making of
such Closing Date payments (except to the extent that any such Person shall have
designated another bank account to AMG in writing at least two (2) business days
prior to the Closing True-Up Date)), an
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aggregate amount equal to the Post-Closing True-Up Payment (if any); PROVIDED,
however, that the Post-Closing True-Up Payment shall in no event exceed the
Reduction Amount. Promptly (and in any event within five (5) business days)
following the Closing True-Up Date, FAI and FAID shall deliver to AMG (i) an
UPDATED SCHEDULE 3.7 containing all of the information required by Section
3.7(a) (set forth as of the Closing True-Up Date instead of as of the Base Date)
with respect to each of the Applicable Closing Excluded Contracts and (ii) the
calculation of the Post-Closing True-Up Payment (if any) in reasonable detail,
certified by FAI and FAID (which certification shall constitute a representation
and warranty to AMG under this Agreement) as being true and correct and having
attached thereto such evidence of the underlying information resulting in such
Post-Closing True-Up Payment as is reasonably satisfactory to AMG.
(d) At the Closing, upon the terms contained in this Agreement
(including without limitation the conditions contained in Section 10), (i) FAI
shall deliver to FA (WY) Acquisition all of the WY LLC Interests owned by FAI
(other than the Retained WY LLC Interest, which is reflected on Schedule A to
the Restated WY LLC Agreement), (ii) each Charity shall deliver to FA (WY)
Acquisition all of the WY LLC Interests owned by such Charity, (iii) FAID shall
deliver to FA (DE) Acquisition all of the DE LLC Interests owned by FAID (other
than the Retained DE LLC Interest, which is reflected on Schedule A to the
Restated DE LLC Agreement), and (iv) FF shall deliver to FA (WY) Acquisition all
of the DE LLC Interests owned by FF, in each case including any certificates
representing such interests duly endorsed for transfer to FA (WY) Acquisition or
FA (DE) Acquisition or, if there are no certificates representing such
interests, other customary written evidence of transfer, in either case in form
and substance reasonably satisfactory to AMG and the Friess Companies, together
with such other customary transfer documentation as AMG has reasonably
requested.
(e) Prior to the Closing Date, (i) AMG and FAI (on its own behalf
and on behalf of the Charities) shall mutually agree upon a written allocation
of the WY LLC Closing Purchase Price among the assets and liabilities of the WY
LLC (the "WY LLC Purchase Price Allocation") and (ii) AMG and FAID (on its own
behalf and on behalf of FF) shall mutually agree upon a written allocation of
the DE LLC Closing Purchase Price among the assets and liabilities of FAID that
will be contributed by FAID to the DE LLC in connection with the Closing (the
"DE LLC Purchase Price Allocation" and, collectively with the WY LLC Purchase
Price Allocation, the "Purchase Price Allocation"). Each of the WY LLC Purchase
Price Allocation and the DE LLC Purchase Price Allocation will be made in
accordance with applicable federal income tax law and any analogous provision of
foreign, state or local law. Each of AMG, FAI, FAID, the Charities and the
Stockholders agrees to file all Tax Returns and make all other necessary filings
consistent with the Purchase Price Allocation. The portion of any Post-Closing
True-Up Payment that relates to the WY LLC Closing Purchase Price will be
allocated in the manner provided for in the WY LLC Purchase Price Allocation,
and the portion of any Post-Closing True-Up Payment that relates to the DE LLC
Closing Purchase Price will be allocated in the manner provided for in the DE
LLC Purchase Price Allocation.
1.3 TIME AND PLACE OF CLOSING. The closing of the Purchase (the
"Closing") shall be held at the offices of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York at 10:00 a.m. local time on the date of the
Closing (the "Closing Date"), which shall
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be the last day of the calendar month in which each of the conditions set forth
in Sections 9 (other than Section 9.11) and 10 (other than Section 10.4) hereof
was fulfilled or waived at least two (2) business days prior thereto (or, if
such last day is not a business day, on the next succeeding business day), or at
such other place or time as may be mutually agreed upon in writing by AMG and
the Friess Companies.
1.4 FURTHER ASSURANCES. The Friess Companies, the Stockholders and
the Charities shall, from time to time after the Closing, at the reasonable
request of AMG and without further consideration, execute and deliver further
customary instruments of transfer and assignment and take such other customary
actions as AMG reasonably requests to fully implement the provisions of this
Agreement.
1.5 TRANSFER TAXES. All transfer taxes, fees and duties under
applicable law incurred in connection with the Purchase will be borne and paid
by the Friess Companies, and the Friess Companies shall promptly reimburse the
LLCs, AMG, FA (WY) Acquisition and FA (DE) Acquisition for any such tax, fee or
duty which any of them is required to pay under applicable law.
1.6 CONTINUATION OF EXISTING FRIESS INVESTMENTS; INVESTMENT OF
TRANSACTION PROCEEDS.
(a) FAI, FAID and the Stockholders jointly and severally represent
and warrant (for the benefit of AMG) that, as of the date of this Agreement,
FAI, FAID, FF and those other Persons identified on SCHEDULE 1.6(a) hereto
(collectively, the "Applicable Friess Investors") have in the aggregate one
hundred and twenty million dollars ($120,000,000) of their own funds invested in
the Mutual Funds sponsored and managed by the WY LLC (such invested funds,
together with all appreciation/depreciation, capital gains/losses, dividends,
interest and other earnings thereon from and after the date hereof (other than
any such capital gains, dividends or interest withdrawn from the Mutual Funds by
the Applicable Friess Investors to the extent of Tax liabilities incurred by
them in respect of the realization of such capital gains, dividends or interest,
to the extent permitted by Section 1.6(c) below, calculated based upon the
assumption that such Applicable Friess Investor (or, in the case of any
S-Corporation or entity treated as a partnership for tax purposes, the majority
owners of such S-Corporation or entity) is subject to the highest marginal
federal, state and local income tax rate in the jurisdiction of his principal
residence or domicile for tax purposes (any such withdrawal, a "Tax
Withdrawal")), the "Applicable Existing Invested Funds") (with each Friess
Investor owning as of the date hereof that amount of Applicable Existing
Invested Funds set forth opposite such Friess Investor's name on SCHEDULE 1.6(a)
hereto).
(b) FAI, FAID and the Stockholders jointly and severally covenant
and agree (for the benefit of AMG) that, at the Closing, FAI, FAID and the
Stockholders in the aggregate shall invest an additional one hundred and fifty
five million dollars ($155,000,000) in the Mutual Funds sponsored and managed by
the WY LLC (i) out of that portion of the Closing Purchase Price payable to them
at the Closing, and (ii) to the extent such portion of the Closing Purchase
Price payable to them at the Closing is in the aggregate insufficient to make
the entirety of such investment at the Closing, then out of other funds
available to them (such funds to be invested by
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FAI, FAID and the Stockholders at the Closing, together with all
appreciation/depreciation, capital gains/losses, dividends, interest and other
earnings thereon from and after the Closing (other than any Tax Withdrawals, the
"APPLICABLE INVESTED FUNDS"); each of FAI, FAID and the Stockholders hereby
authorizes and instructs AMG to cause FA (WY) Acquisition and FA (DE)
Acquisition (as applicable) to deliver directly by wire transfer for the benefit
of such Applicable Friess Investor, to Mutual Fund accounts to be designated in
writing by FAI to AMG at least two (2) business days prior to the Closing Date
(and in lieu of delivering such funds to FAI, FAID and FF as otherwise provided
in Section 1.2(a) above), that portion of the WY LLC Closing Purchase Price or
DE LLC Closing Purchase Price (as applicable) constituting such Applicable
Friess Investor's portion of the Applicable New Invested Funds to be invested in
the Mutual Funds sponsored and managed by the WY LLC at the Closing (up to the
entirety of that portion of the Closing Purchase Price in the aggregate payable
to FAI, FAID and FF at the Closing).
(c) From and after the date hereof until the tenth (10th)
anniversary of the Closing (the "Applicable Investment Period"), FAI, FAID and
the Stockholders each agree (for the benefit of AMG) that none of FAI, FAID or
the Stockholders shall redeem, withdraw or otherwise remove any of the
Applicable Invested Funds owned by such Person (and, for the avoidance of doubt,
all appreciation/depreciation, capital gains/losses, dividends, interest and
other earnings on the initial amount of the Applicable Invested Funds also shall
constitute Applicable Invested Funds hereunder) from the Mutual Funds sponsored
and managed by the WY LLC or permit to occur a redemption, withdrawal or other
removal of any Applicable Invested Funds from the Mutual Funds sponsored and
managed by the WY LLC by any other Applicable Friess Investor, and FAI, FAID and
the Stockholders shall at all times during the Applicable Investment Period
cause the Applicable Invested Funds to remain invested in the Mutual Funds
sponsored and managed by the WY LLC, PROVIDED that transfers of funds among the
Mutual Funds sponsored and managed by the WY LLC shall be permitted to be made
by the Friess Investors; and PROVIDED, FURTHER, that, in the event that any
Mutual Fund in which Applicable Invested Funds are invested ceases to be a
Mutual Fund sponsored and managed by the WY LLC, then unless otherwise consented
to in writing by AMG at the time such Mutual Fund ceases to be sponsored and
managed by the WY LLC, all Applicable Invested Funds invested in such Mutual
Fund shall be transferred by the Applicable Friess Investors to one or more
other Mutual Funds that continue to be sponsored and managed by the WY LLC;
PROVIDED, HOWEVER, that the sole consequence under this Agreement or otherwise
if any or all of the Applicable Invested Funds are nonetheless redeemed,
withdrawn or otherwise removed after the Closing by the Applicable Friess
Investor shall be as provided in Section 1.6(d) below.
(d) FAI, FAID and the Stockholders jointly and severally covenant
and agree (for the benefit of AMG) that, in the event that at any time during
the Applicable Investment Period (and, for the avoidance of doubt, the amount of
time elapsed during the Applicable Investment Period shall have no bearing on
the following calculations) and for any reason, any of the Applicable Invested
Funds are redeemed, withdrawn or otherwise removed from the Mutual Funds
sponsored and managed by the WY LLC (other than pursuant to a transfer of such
Applicable Invested Funds to another Mutual Fund sponsored and managed by the WY
LLC), promptly (and in any event within two (2) business days) following such
redemption, withdrawal or other removal of such Applicable Invested Funds, FAI,
FAID and the Stockholders shall pay to AMG, by wire transfer of immediately
available funds to a bank account designated in writing
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by AMG to FAI, an amount equal to the product of (i) the Applicable Price
Component, multiplied by (ii) a fraction, the numerator of which is the amount
of Applicable Invested Funds so redeemed, withdrawn or otherwise removed, and
the denominator of which is the amount of Applicable Invested Funds invested in
the Mutual Funds sponsored and managed by the WY LLC as of immediately prior to
such redemption, withdrawal or other removal of Applicable Invested Funds. The
"Applicable Price Component" shall be an amount equal to the sum of (i)
$9,379,219, plus (ii) from and after the Subsequent Purchase Closing, that
portion of the Subsequent Purchase Price paid in respect of the Applicable
Invested Funds. For the avoidance of doubt, no AMG Indemnified Party shall have
any right of setoff against Applicable Invested Funds with respect to
indemnification claims such AMG Indemnified Party may have pursuant to Section
13 of this Agreement.
SECTION 2. CONTRIBUTIONS OF ASSETS AND RESTATEMENT OF LLC AGREEMENTS.
2.1 DE LLC ASSET TRANSFER. On the business day immediately prior to
the Closing Date, FAID and the DE LLC shall, and the FAID Stockholders shall
cause them to, enter into the DE LLC Asset Transfer Agreement in the form
attached hereto as EXHIBIT 2.1 (the "DE LLC Asset Transfer Agreement"), as well
as each of the other agreements, documents and instruments contemplated thereby.
Prior to the commencement of business on the Closing Date, FAID and the DE LLC
shall, and the FAID Stockholders shall cause them to, perform each of the
transactions contemplated by the DE LLC Asset Transfer Agreement as well as each
of the other agreements, documents and instruments contemplated thereby (the "DE
LLC Asset Transfer").
2.2 WY LLC ASSET TRANSFER. FAI, FAID and the Stockholders covenant
to AMG and agree that (i) as of June 1, 2001, FAI and the WY LLC entered into
the Amended and Restated FAI-WY LLC Asset Transfer Agreement, as amended by
Amendment No. 1 thereto dated as of the date hereof, each of which is attached
hereto as EXHIBIT 2.2A (the "FAI-WY LLC Asset Transfer Agreement"), as well as
each of the other agreements, documents and instruments attached thereto, and
(ii) as of June 1, 2001, FAID and the WY LLC entered into the FAID-WY LLC Asset
Transfer Agreement attached hereto as EXHIBIT 2.2B (the "FAID-WY LLC Asset
Transfer Agreement" and, collectively with the FAI-WY LLC Asset Transfer
Agreement, the "WY LLC Asset Transfer Agreements"; the WY LLC Asset Transfer
Agreements, collectively with the DE LLC Asset Transfer Agreement, the "Asset
Transfer Agreements"), as well as each of the other agreements, documents and
instruments attached thereto, (iii) prior to the commencement of business on
June 1, 2001, FAI, FAID and the WY LLC performed each of the transactions
contemplated by the FAI-WY LLC Asset Transfer Agreement and the FAID-WY LLC
Asset Transfer Agreement (as applicable), as well as each of the other
agreements, documents and instruments contemplated thereby (the "WY LLC Asset
Transfer" and, collectively with the DE LLC Asset Transfer, the "Asset
Transfers"), and (iii) each of the FAI-WY LLC Asset Transfer Agreement and the
FAID-WY LLC Asset Transfer Agreement remains in full force and effect as of the
date of this Agreement and as of the Closing, has not been materially breached
by any party thereto as of either such date, no provision thereof has been
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amended, waived or otherwise modified as of either such date from the form in
which such agreement was originally entered into as of June 1, 2001 (except for
the amendment thereto described in clause (i) of this sentence), and no
additional documents or instruments have been executed in connection therewith
without the written consent of AMG.
2.3 CHARITABLE CONTRIBUTIONS. FAI, FAID and the Stockholders
covenant to AMG and agree that, on June 1, 2001, (a) FAI assigned (i) LLC
Interests representing six percent (6%) of the issued and outstanding LLC
Interests in the WY LLC to CFJH and (ii) LLC Interests representing two percent
(2%) of the issued and outstanding LLC Interests in the WY LLC to NCCF and (b)
FAID assigned LLC Interests representing four percent (4%) of the issued and
outstanding LLC Interests in the WY LLC (representing FAID's entire interest in
the WY LLC) to NCCF.
2.4 RESTATED LLC AGREEMENTS. The parties hereto agree that (i) the
Amended and Restated Limited Liability Company Agreement of the WY LLC (the
"Restated WY LLC Agreement"), executed and delivered as of the date hereof by
FAI, each of the FAI Stockholders and FA (WY) Acquisition, and (ii) the Amended
and Restated Limited Liability Company Agreement of the DE LLC (the "Restated DE
LLC Agreement" and, collectively with the Restated WY LLC Agreement, the
"Restated LLC Agreements"), executed and delivered as of the date hereof by
FAID, each of the FAID Stockholders and FA (DE) Acquisition, each shall become
effective as of the Closing.
SECTION 3. JOINT AND SEVERAL REPRESENTATIONS AND WARRANTIES OF THE FRIESS
COMPANIES AND THE STOCKHOLDERS.
3.1 MAKING OF REPRESENTATIONS AND WARRANTIES. As a material
inducement to AMG to enter into this Agreement and consummate the transactions
contemplated hereby, the Friess Companies and the Stockholders, jointly and
severally, hereby make to AMG, as of the date hereof and as of the Closing Date,
the representations and warranties contained in this Section 3. From and after
the Closing, none of the Friess Companies, the Charities nor any Stockholder
shall have any right of indemnity or contribution from either of the LLCs (or
any other rights against either of the LLCs) with respect to any breach of a
representation or warranty hereunder.
3.2 ORGANIZATION AND QUALIFICATION OF THE FRIESS COMPANIES AND THE
LLCS.
(a) FAI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full power and
authority to own or lease its properties and to conduct its business in the
manner and in the places where such properties are owned or leased or such
business is currently conducted. The copies of FAI's Articles of Incorporation,
as amended to date (the "FAI Articles of Incorporation"), certified by the
Department of State of the State of Delaware, and of FAI's by-laws, as amended
to date, certified by FAI's Secretary, and heretofore delivered to AMG, are
complete and correct, and no amendments thereto are pending. FAI is not in
violation of any term of its FAI Articles of
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Incorporation or by-laws. FAID is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full power
and authority to own or lease its properties and to conduct its business in the
manner and in the places where such properties are owned or leased or such
business is currently conducted. The copies of FAID's Articles of Incorporation,
as amended to date (the "FAID Articles of Incorporation" and, collectively with
the FAI Articles of Incorporation, the "Articles of Incorporation"), certified
by the Department of State of the State of Delaware, and of FAID's by-laws, as
amended to date, certified by FAID's Secretary, and heretofore delivered to AMG,
are complete and correct, and no amendments thereto are pending. FAID is not in
violation of any term of its FAID Articles of Incorporation or by-laws. Each of
the Friess Companies is duly qualified or licensed to conduct business in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties requires such qualification, except where the failure to be so
licensed or qualified could not have a Material Adverse Effect on the Friess
Companies, the LLCs or AMG. FAI was incorporated in 1980 and FAID was
incorporated in 1992.
(b) The WY LLC is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware with full
power and authority under the Delaware Limited Liability Company Act, , 6 Del.
C. ss.18-101, ET SEQ., as amended from time to time (the "Delaware Act") and the
Existing WY LLC Agreement (and, after the effectiveness of the Restated WY LLC
Agreement, the Restated WY LLC Agreement) to own or lease its properties and to
conduct its business in the manner and in the places where such properties are
owned or leased or such business is currently conducted or proposed to be
conducted. FF and LF are Directors of the WY LLC (as defined in the Existing WY
LLC Agreement) and managers of the WY LLC (within the meaning of the Delaware
Act). The copy of the Existing WY LLC Agreement, certified by FF in his capacity
as a Director of the WY LLC, and the WY LLC's Certificate of Formation, as
amended to date (the "Existing WY Certificate of Formation"), certified by the
Secretary of State of the State of Delaware, each as heretofore delivered to
AMG, are complete and correct, and no amendments thereto are pending. The WY LLC
is not in material violation of any term of the Existing WY LLC Agreement. The
WY LLC is duly qualified to do business as a foreign limited liability company
under the laws of each jurisdiction in which the ownership or leasing of its
properties or the conduct of its business in the manner and in the places where
such properties are owned or leased or such business is currently conducted or
proposed to be conducted requires such qualification, except where the failure
to be so licensed or qualified could not have a Material Adverse Effect on the
Friess Companies, the LLCs or AMG. Complete and correct copies of each of the
executed documents pursuant to which any of the Friess Companies, the Charities
or the Management Owners obtained any ownership interests in the WY LLC have
been heretofore delivered to AMG by the Friess Companies, and no amendments
thereto are pending.
(c) The DE LLC is a limited liability company duly formed, validly
existing and in good standing under the laws of the State of Delaware with full
power and authority under the Delaware Act and the Existing DE LLC Agreement
(and, after the effectiveness of the Restated DE LLC Agreement, the Restated DE
LLC Agreement) to own or lease its properties and to conduct its business in the
manner and in the places where such properties are owned or leased or such
business is currently conducted or proposed to be conducted (including without
limitation, after giving effect to the Closing and the DE LLC Asset Transfer,
the business
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currently conducted by FAID). FF and LF are Directors of the DE LLC (as defined
in the Existing DE LLC Agreement) and managers of the DE LLC (within the meaning
of the Delaware Act). The copy of the Existing DE LLC Agreement, certified by FF
in his capacity as a Director of the DE LLC, and the DE LLC's Certificate of
Formation, as amended to date (the "Existing DE Certificate of Formation"),
certified by the Secretary of State of the State of Delaware, each as heretofore
delivered to AMG, are complete and correct, and no amendments thereto are
pending. The DE LLC is not in material violation of any term of the Existing DE
LLC Agreement. The DE LLC is duly qualified to do business as a foreign limited
liability company under the laws of each jurisdiction in which the ownership or
leasing of its properties or the conduct of its business in the manner and in
the places where such properties are owned or leased or such business is
currently conducted or proposed to be conducted (including without limitation,
after giving effect to the Closing and the DE LLC, the business currently
conducted by FAID) requires such qualification, except where the failure to be
so licensed or qualified could not have a Material Adverse Effect on the Friess
Companies, the LLCs or AMG.
3.3 CAPITAL STOCK OF FAI AND FAID.
(a) The authorized capital stock of FAI ("FAI Shares") consists
exclusively of (i) 1,000 shares of FAI Class A Series 1 Common Stock, no par
value, of which 1,000 shares are outstanding, and all of such outstanding shares
are duly and validly authorized, issued and outstanding and are fully paid and
non-assessable, and (ii) 1,000 shares of FAI Class A Series 2 Common Stock, no
par value, of which no shares are outstanding. The outstanding FAI Shares are
owned exclusively by the FAI Stockholders in the respective amounts set forth on
SCHEDULE 1.2 hereto. The authorized capital stock of FAID ("FAID Shares")
consists exclusively of (i) 1,500 shares of FAID Common Stock, no par value, of
which 1,500 shares are outstanding, and all of such outstanding shares are duly
and validly authorized, issued and outstanding and are fully paid and
non-assessable. The outstanding FAID Shares are owned exclusively by the FAID
Stockholders in the respective amounts set forth on SCHEDULE 1.2 hereto. Except
as set forth in SCHEDULE 3.3(a) hereto, there are no outstanding options,
warrants, rights, commitments, preemptive rights or agreements of any kind for
the issuance or sale of, or outstanding securities convertible into, any
additional shares of capital stock of any class of FAI or FAID. None of FAI's or
FAID's capital stock has been issued in violation of any Laws and Regulations.
Except as set forth in SCHEDULE 3.3(a) hereto, there are no voting trusts,
voting agreements, proxies or other agreements, instruments or undertakings with
respect to the voting of (i) the FAI Shares to which FAI or any of the FAI
Stockholders is a party or (ii) the FAID Shares to which FAID or any of the FAID
Stockholders is a party. None of the Stockholders or the Charities has any right
of appraisal with respect to FAI's or FAID's capital stock or assets (including
without limitation their ownership interests in the WY LLC and the DE LLC), or
the assets of either LLC, by reason of the transactions contemplated by this
Agreement. Neither FAI, FAID nor either LLC has any outstanding debt securities.
(b) Each FAI Stockholder owns of record and beneficially the FAI
Shares set forth opposite such FAI Stockholder's name on SCHEDULE 1.2 hereto,
free and clear of any Claims except as reflected in SCHEDULE 3.3(b) hereto, and
such shares are the only shares of capital stock
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of FAI held by such FAI Stockholder or with respect to which such FAI
Stockholder has any rights.
(c) Each FAID Stockholder owns of record and beneficially the FAID
Shares set forth opposite such FAID Stockholder's name on SCHEDULE 1.2 hereto,
free and clear of any Claims except as reflected in SCHEDULE 3.3(b) hereto, and
such shares are the only shares of capital stock of FAID held by such FAID
Stockholder or with respect to which such FAID Stockholder has any rights.
(d) (i) FAI owns of record and beneficially the portion of the
outstanding WY LLC Interests set forth on SCHEDULE 3.3(d) hereto, free and clear
of any Claims, (ii) the Charities own of record and beneficially the portion of
the outstanding WY LLC Interests set forth on SCHEDULE 3.3(d) hereto, free and
clear of any Claims, and (iii) the Management Owners (other than FF) own of
record and beneficially the portion of the outstanding WY LLC Interests set
forth on SCHEDULE 3.3(d) hereto, free and clear of any Claims (other than, in
the case of (i), (ii) and (iii), Claims arising under this Agreement, the
Existing WY LLC Agreement and the Restated WY LLC Agreement, in the case of
(ii), Claims arising under the Existing Charity Assignment Agreements, and in
the case of (iii), Claims arising under the documentation pursuant to which such
Management Owners purchased their WY LLC Interests), and such LLC Interests are
the only membership or other ownership interests held by any of the Friess
Companies, the Charities, the Stockholders and the Management Owners in either
LLC (other than the interests of FAID and FF in the DE LLC described in
paragraph (e) below). At the Closing (i) FAI will transfer, sell and deliver to
FA (WY) Acquisition good and marketable title to all of the WY LLC Interests
owned by FAI (other than the Retained WY LLC Interest), free and clear of any
Claims (other than Claims arising under the Restated WY LLC Agreement) and (ii)
each Charity will transfer, sell and deliver to FA (WY) Acquisition good and
marketable title to the WY LLC Interests owned by such Charity, free and clear
of any Claims (other than Claims arising under the Restated WY LLC Agreement).
The WY LLC Interests transferred to FA (WY) Acquisition by FAI, the Charities
and the Management Owners will constitute all of the issued and outstanding
ownership interests in the WY LLC as of the Closing (other than the Retained WY
LLC Interest owned by FAI).
(e) (i) FAID owns of record and beneficially 99% of the outstanding
DE LLC Interests, free and clear of any Claims, and (ii) FF owns of record and
beneficially 1% of the outstanding DE LLC Interests, free and clear of any
Claims (other than, in the case of (i) and (ii), Claims arising under this
Agreement, the Existing DE LLC Agreement and the Restated DE LLC Agreement), and
such LLC Interests are the only membership or other ownership interests held by
FAID or FF in either LLC. At the Closing (i) FAID will transfer, sell and
deliver to FA (DE) Acquisition good and marketable title to all of the DE LLC
Interests owned by FAID (other than the Retained DE LLC Interest), free and
clear of any Claims (other than Claims arising under the Restated DE LLC
Agreement), and (ii) FF will transfer, sell and deliver to FA (DE) Acquisition
good and marketable title to the DE LLC Interests owned by FF, free and clear of
any Claims (other than Claims arising under the Restated DE LLC Agreement), and
the DE LLC Interests transferred to FA (WY) Acquisition by FAID and FF will
constitute all of the issued and outstanding ownership interests in the DE LLC
as of the Closing (other than the Retained DE LLC Interest owned by FAID).
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3.4 SUBSIDIARIES.
(a) Other than their respective interests in the LLCs, neither FAI
nor FAID has, nor has either of them ever had, any subsidiaries, debt or equity
investments or other ownership interests, direct or indirect, in any other
Person, except for cash and cash-equivalents. Neither of the LLCs has any
subsidiaries, debt or equity investments or other ownership interests in any
other Person.
(b) FAI, the Charities and the Management Owners (other than FF) are
the sole members of the WY LLC, and the capitalization of the WY LLC (with
respect to capital accounts and interests in profits) is as set forth in the
Existing WY LLC Agreement, a true and complete copy of which is attached as
SCHEDULE 3.4(b)(i) hereto, with such interests owned beneficially and of record
by FAI, the Charities and the Management Owners (other than FF) as set forth in
such agreement, free and clear of any Claims other than the restrictions imposed
pursuant to this Agreement, the Existing WY LLC Agreement and the Restated WY
LLC Agreement. FAID and FF are the sole members of the DE LLC, and the
capitalization of the DE LLC (with respect to capital accounts and interests in
profits) is as set forth in the Existing DE LLC Agreement, a true and complete
copy of which is attached as SCHEDULE 3.4(b)(i) hereto, with such interests
owned beneficially and of record by FAID and FF as set forth in such Schedule,
free and clear of any Claims other than the restrictions imposed pursuant to
this Agreement, the Existing DE LLC Agreement and the Restated DE LLC Agreement.
After giving effect to the Closing and the effectiveness of the Restated LLC
Agreements, the capitalization of each of the LLCs will be as set forth in
SCHEDULE 3.4(b)(ii) hereto, with all such interests owned of record and
beneficially by the Persons and in the amounts indicated in SCHEDULE 3.4(b)(ii),
free and clear of any Claims other than restrictions imposed pursuant to the
relevant Restated LLC Agreement (or, in the case of the interests of the Manager
Member (as defined in the Restated LLC Agreements), restrictions created by
AMG). All outstanding interests in each of the LLCs have been duly authorized
and issued under the Existing LLC Agreements and, after giving effect to the
effectiveness of the Restated LLC Agreements, the Restated LLC Agreements. After
giving effect to the Closing and the restatement of the Existing LLC Agreements
into the Restated LLC Agreements, (i) FA (WY) Acquisition will be the sole
Manager Member (as such term is defined in the Restated WY LLC Agreement) and
manager (as such term is defined in the Delaware Act) of the WY LLC, and FA (WY)
Acquisition will have good and marketable title to its interests in the WY LLC
as shown in SCHEDULE 3.4(b)(ii), free and clear of any Claims other than the
restrictions imposed pursuant to this Agreement and the Restated WY LLC
Agreement, and, (ii) FA (DE) Acquisition will be the sole Manager Member (as
such term is defined in the Restated DE LLC Agreement) and manager (as such term
is defined in the Delaware Act) of the DE LLC, and FA (DE) Acquisition will have
good and marketable title to its interests in the DE LLC as shown in SCHEDULE
3.4(b)(ii), free and clear of any Claims other than the restrictions imposed
pursuant to this Agreement and the Restated DE LLC Agreement. Except as set
forth in this Agreement, the Management Owner Purchase Agreement or the Restated
LLC Agreements, there are no rights, commitments, agreements or understandings
obligating or which might obligate either of the LLCs or any of their respective
members (including, without limitation, FAI, FAID, the Charities, FF, FA (WY)
Acquisition or FA (DE) Acquisition) to issue, transfer, sell or redeem any
securities or interests in either of the LLCs (except for any such rights,
commitments, agreements or understandings created by AMG,
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and except as set forth in the Existing Charity Assignment Agreements and the
documentation pursuant to which the Management Owners (other than FF) purchased
their WY LLC Interests). Except as set forth in SCHEDULE 3.3(a) hereto or in the
Existing LLC Agreements or the Restated LLC Agreements, there are no voting
trusts, voting agreements, proxies or other agreements, instruments or
undertakings with respect to the voting of any interests in either of the LLCs
to which FAI, FAID, either of the Charities, either of the LLCs, any of the
Stockholders or any of the Management Owners is a party.
(c) The WY LLC Asset Transfer did not result in an "assignment" (as
such term is used in the Investment Company Act and the Advisers Act, as
applicable) of any of the Advisory Contracts transferred to the WY LLC as a
result of the application of Rule 2a-6 under the Investment Company Act and Rule
202(a)(1)-1 under the Advisers Act (as applicable).
3.5 AUTHORITY.
(a) Each of FAI, FAID, the Charities and the Stockholders has full
right, authority and power (or, in the case of the Stockholders, capacity) to
enter into this Agreement and each agreement, document and instrument executed
and delivered, or to be executed and delivered, by such Person pursuant to, or
as contemplated by, this Agreement and to carry out the transactions
contemplated hereby and thereby. The execution, delivery and performance by each
of FAI, FAID, the Charities and the Stockholders of this Agreement and each such
other agreement, document and instrument have been duly authorized by all
necessary action of (or on the part of) such Person, and no other action on the
part of any such Person is required in connection therewith. This Agreement and
each of the other Transaction Documents executed and delivered by FAI, FAID, the
Charities and/or any of the Stockholders pursuant to, or as contemplated by,
this Agreement constitutes, or when executed and delivered will constitute, a
valid and binding obligation of each such Person who is a party hereto or
thereto (as applicable), enforceable against each such Person in accordance with
its terms, except as enforceability may be restricted, limited or delayed by
applicable bankruptcy or similar laws affecting creditors' rights generally. The
execution, delivery and performance by FAI, FAID, each of the Charities and each
of the Stockholders of this Agreement and each other Transaction Document to
which any such Person is a party and the consummation of the transactions
contemplated hereby and thereby:
(i) does not and will not violate any provision of the Articles of
Incorporation or by-laws of FAI or FAID, each as amended to date;
(ii) does not and will not violate any Laws and Regulations
applicable to FAI, FAID, either of the Charities or any of the
Stockholders or by which any of their assets are bound, or require FAI,
FAID, either of the Charities or any of the Stockholders to obtain any
approval, consent or waiver of, or make any filing with, any person or
entity (governmental or otherwise) that has not been obtained or made,
except as specifically identified in SCHEDULE 3.5 hereto, which approvals,
consents and waivers identified in such Schedule will, when obtained and
as of the Closing, conform in all material respects to, and otherwise
satisfy in all material respects, all contractual requirements and all
Laws and Regulations applicable thereto; and
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(iii) except as reflected in SCHEDULE 3.5 hereto, does not and will
not result in a breach of, constitute a default under, accelerate any
obligation under, or give rise to a right of termination of, any material
agreement, contract, instrument, mortgage, lien, lease, permit,
authorization, order, writ, judgment, injunction, decree, determination or
arbitration award to which FAI, FAID, either of the Charities, any of the
Stockholders or, to the Knowledge of the Friess Companies, any other
Stockholder is a party or by which the property of any of them is bound or
affected, or result in the creation or imposition of any Person's interest
in either of the Friess Companies or the LLCs (including without
limitation the FAI Shares, the FAID Shares and the LLC Interests) or any
material claim on any of their respective other assets;
PROVIDED, HOWEVER, that the representations in clauses (ii) and (iii) shall not
apply to Advisory Contracts to the extent that receipt of consents from a party
to such agreement (or the execution and delivery of a new Advisory Contract) is
required under the Investment Company Act or the Advisers Act (as applicable)
and is separately provided for in Section 5.2 hereof.
(b) The WY LLC has full right, authority and power under the
Existing WY LLC Agreement and the Delaware Act (and, after the effectiveness of
its Restated WY LLC Agreement, under the Restated WY LLC Agreement and the
Delaware Act) to enter into each agreement, document and instrument executed and
delivered, or to be executed and delivered, by it pursuant to, or as
contemplated by, this Agreement and to carry out the transactions contemplated
hereby and thereby. The DE LLC has full right, authority and power under the
Existing DE LLC Agreement and the Delaware Act (and, after the effectiveness of
its Restated DE LLC Agreement, under its Restated DE LLC Agreement and the
Delaware Act) to enter into each agreement, document and instrument executed and
delivered, or to be executed and delivered, by it pursuant to, or as
contemplated by, this Agreement and to carry out the transactions contemplated
hereby and thereby. The execution, delivery and performance by each of the LLCs
of each such agreement, document and instrument has been duly authorized by all
necessary action of each of the LLCs and the members thereof, and no other
action on the part of either of the LLCs, FAI, FAID or any other member of
either of the LLCs is required in connection therewith (except for the execution
and delivery of the Restated LLC Agreements as contemplated hereby). Each
agreement, document and instrument executed and delivered by each of the LLCs
pursuant to, or as contemplated by, this Agreement constitutes, or when executed
and delivered will constitute, a valid and binding obligation of each of the
LLCs, enforceable against it in accordance with its terms. The execution,
delivery and performance by each of the LLCs of each such agreement, document
and instrument to which it is a party and the consummation of the transactions
contemplated hereby and thereby:
(i) do not and will not violate any provision of its Existing LLC
Agreement or its Restated LLC Agreement;
(ii) do not and will not violate any Laws and Regulations applicable
to either LLC or require either LLC to obtain any approval, consent or
waiver of, or make any filing with, any person or entity (governmental or
otherwise) that has not been obtained or made, except as specifically
identified in SCHEDULE 3.5 hereto; and
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(iii) do not and will not result in a breach of, constitute a
default under, accelerate any obligation under, or give rise to a right of
termination of, any material agreement, contract, instrument, mortgage,
lien, lease, permit, authorization, order, writ, judgment, injunction,
decree, determination or arbitration award to which either of the LLCs is
a party or by which the property of either of the LLCs is bound or
affected, or result in the creation or imposition of any Claim on any
Person's interests in either of the LLCs or any material Claim on either
of the LLCs' assets;
PROVIDED, HOWEVER, that the representations in clauses (ii) and (iii) shall not
apply to Advisory Contracts to the extent that receipt of consents from a party
to such agreement (or the execution and delivery of a new Advisory Contract) is
required under the Investment Company Act or the Advisers Act (as applicable)
and is separately provided for in Section 5.2 hereof.
3.6 REAL AND PERSONAL PROPERTY.
(a) (i) None of the Friess Companies or the LLCs owns any real
property. All of the real property leased by either of the Friess Companies or
the LLCs is identified in SCHEDULE 3.6(a) hereto (herein referred to as the
"Real Property").
(ii) All leases of Real Property by either of the Friess Companies
or the LLCs are identified in SCHEDULE 3.6(a), and true and complete
copies thereof have been delivered to AMG. Each of said leases has been
duly authorized and executed by the parties thereto and is in full force
and effect. None of the Friess Companies or the LLCs is in material
default under any of said leases, nor has any event occurred which, with
the giving of notice or the passage of time, or both, would give rise to
such a material default. To the Knowledge of the Friess Companies, each
other party to each of said leases is not in material default under any of
said leases and there is no event which, with the giving of notice or the
passage of time, or both, would give rise to such a material default.
Subject to receipt of any requisite consent(s) to assignment identified on
SCHEDULE 3.5, after giving effect to the Closing and the DE LLC Asset
Transfer, each lease identified in SCHEDULE 3.6(a) will be valid and
effective in accordance with its terms, with the DE LLC or the WY LLC
having succeeded to all the rights and obligations of the Friess Companies
thereunder (and the WY LLC having retained all of its rights and
obligations under the leases to which it currently is a party).
(b) Attached hereto as SCHEDULE 3.6(b) is a list, organized by
category, of the material assets of the Friess Companies and the LLCs (including
without limitation Intellectual Property, if any, as such term is defined in
Section 3.14 hereof). Except as set forth in SCHEDULE 3.6(b) hereto, as of the
date hereof, the Friess Companies and the LLCs own all of their assets free and
clear of any Claims. All of the assets listed in schedules to the DE LLC Asset
Transfer Agreement are being transferred to the DE LLC in the DE LLC Asset
Transfer and, after giving effect to such transfers, the DE LLC will own all of
such assets free and clear of any Claims. The assets listed in SCHEDULE 3.6(b)
hereto (i) include all the material assets used in, and all the material assets
necessary for, the conduct of the business of the Friess Companies and the LLCs
as currently conducted and all the material assets which the LLCs can reasonably
be expected to require for the conduct of such business immediately following
the Closing and the DE LLC
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Asset Transfer, (ii) such assets are suitable and in an appropriate condition
for such purpose, and (iii) as of immediately following the Closing, one of the
LLCs will own each of such assets free and clear of any Claims (except for
Claims set forth in SCHEDULE 3.6(b)).
3.7 ASSETS UNDER MANAGEMENT.
(a) The aggregate assets under management by the Friess Companies
and the LLCs as of August 23, 2001 (the "Base Date") are accurately set forth in
SCHEDULE 3.7(a) hereto. Set forth in SCHEDULE 3.7(a) is a list as of the Base
Date of all Advisory Contracts, setting forth with respect to each such Advisory
Contract:
(i) the name of the Client under such Advisory Contract, indicating
(A) any such Client that is a Friess Company, a Stockholder or a Charity,
an Affiliate of a Friess Companies, a Stockholder or a Charity, or a
director, officer, employee or Immediate Family member of any of the
foregoing (or a trust or collective investment vehicle in which any of the
foregoing is a holder of a beneficial interest), and (B) in the case of
any Client that is a Mutual Fund or other collective investment vehicle,
any of the foregoing Persons described in clause (A) that had an
investment in such Client as of the Base Date (indicating the amount of
such investment) (any Person described in clause (A) or (B), a "Related
Client");
(ii) the state (or, if such Client is not a U.S. citizen, the
country) of which such Client is a citizen or resident (in the case of
individuals) or domiciled (in the case of entities);
(iii) the amount of assets under management pursuant to such
Advisory Contract at the Base Date, and the nature of the Investment
Management Services provided (i.e., discretionary or non-discretionary);
(iv) the fee schedule in effect with respect to such Advisory
Contract (including identification of any applicable sub-components of
such fees, e.g., investment management fees, fees for any other fiduciary
services, etc., as applicable), and a description of any fees payable by
the underlying Client in connection with Investment Management Services
(or other services) provided by the Friess Companies or the LLCs other
than pursuant to such Advisory Contract;
(v) in the case of the making of this representation and warranty as
of the Closing Date and for purposes of the delivery of an UPDATED
SCHEDULE 3.7 (but not for purposes of the making of this representation
and warranty as of the date of this Agreement), (A) a description of any
material fee changes (including without limitation any caps, waivers,
offsets or reimbursements) under such Advisory Contract and (B) a
description of any material changes in the amount of assets in any
Client's account as a result of deposits (including without limitation
reinvestments of dividends and distributions) or withdrawals made by such
Client (or, in the case of any Clients that are collective investment
vehicles, deposits or withdrawals made in such vehicle), in each case from
the Base Date to the Closing Date or the date of the UPDATED SCHEDULE 3.7
(as
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applicable), and a description of any such changes proposed or otherwise
expected to be instituted as of such date (it being understood and agreed
that, solely for purposes of this clause (v), net deposits or withdrawals
with respect to any one Client account (or, in the case of Clients that
are collective investment vehicles, investors therein) in the aggregate in
excess of $100,000 shall be deemed material);
(vi) the manner of (A) consent required for the "assignment" (or
deemed assignment) under applicable Laws and Regulations by the WY LLC of
such Advisory Contract in connection with the transactions contemplated
hereby, for those Advisory Contracts which will be assigned (or deemed
assigned) in connection with such transactions (which contracts are so
identified), or (B) approval required for the execution and delivery of a
new Advisory Contract between the WY LLC and such Client (for those
Advisory Contracts that will terminate as a result of, or otherwise be
replaced in connection with, the transactions contemplated hereby,
including without limitation each of the New Advisory Contracts), in each
case so that any such consent or approval (as applicable) will be duly and
validly obtained in accordance with all applicable Laws and Regulations
and the terms of any contracts, agreements and other instruments relating
thereto; and
(vii) the identity of which of the Friess Companies, the WY LLC,
and/or any of the Stockholders (if applicable), are parties to such
Advisory Contract.
As of the date hereof, except as set forth in SCHEDULE 3.7(a) and expressly
described thereon, there are no contracts, agreements, arrangements or
understandings pursuant to which either of the Friess Companies or the LLCs or
any of the Stockholders has undertaken or agreed to cap, waive, offset,
reimburse or otherwise reduce any or all fees or charges payable by or with
respect to any of the Clients set forth in SCHEDULE 3.7(a) or pursuant to any of
the contracts set forth in SCHEDULE 3.7(a). As of the date hereof, except as is
set forth in SCHEDULE 3.7(a) hereto, no Client of either of the Friess Companies
or the LLCs (or, in the case of any Clients that are collective investment
vehicles, underlying investors therein, as applicable) has expressed to either
of the Friess Companies or the LLCs or any of the Stockholders an intention to
terminate or reduce its investment relationship with the Friess Companies or the
LLCs, or adjust the fee schedule with respect to any contract in a manner which
would reduce the fees to either of the Friess Companies or the LLCs (including
after giving effect to the Closing) in connection with such Client relationship.
(b) Neither of the Friess Companies nor the LLCs has any Clients
with respect to which fees payable to either of the Friess Companies or the LLCs
are based on performance or otherwise provide for compensation on the basis of a
share of capital gains upon or capital appreciation of the funds (or any portion
thereof) of any Client.
(c) Each Client to which either of the Friess Companies or the LLCs
provides Investment Management Services that is (i) an employee benefit plan, as
defined in Section 3(3) of ERISA that is subject to Title I of ERISA; (ii) a
person acting on behalf of such a plan; or (iii) an entity whose assets include
the assets of such a plan, within the meaning of ERISA and applicable
regulations (hereinafter referred to as an "ERISA Client") have been managed by
the
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Friess Companies and the LLCs such that the Friess Companies and the LLCs in the
exercise of such management are in compliance in all material respects with the
applicable requirements of ERISA. SCHEDULE 3.7(a) identifies each Client that is
an ERISA Client with an appropriate footnote. The WY LLC is not disqualified
from acting as a professional asset manager (as such term is used in Prohibited
Transaction Class Exemption 84-14) under any applicable Laws and Regulations.
(d) Each Client to which either of the Friess Companies or the LLCs
provides Investment Management Services that is registered as an investment
company under the Investment Company Act (including, in the case of any "series"
investment company, each series thereof) is so identified on SCHEDULE 3.7(a)
with an appropriate footnote (each such registered investment company or series
thereof, a "Mutual Fund"). Other than the Mutual Funds, neither of the Friess
Companies or the LLCs provides Investment Management Services to or through (i)
any issuer or other Person that is an investment company (within the meaning of
the Investment Company Act), (ii) any issuer or other Person that would be an
investment company (within the meaning of the Investment Company Act) but for
the exemptions contained in Section 3(c)(1), Section 3(c)(7), the final clause
of Section 3(c)(3) or the third or fourth clauses of Section 3(c)(11) of the
Investment Company Act, or (iii) any issuer or other Person that is or is
required to be registered under the laws of the appropriate securities
regulatory authority in the jurisdiction in which the issuer is domiciled (other
than the United States or the states thereof), which is or holds itself out as
engaged primarily in the business of investing, reinvesting or trading in
securities.
(e) To the Knowledge of the Friess Companies, no controversy or
disagreement exists between either of the Friess Companies or the LLCs and any
Client of the Friess Companies or the LLCs that has had or could reasonably be
expected to have a Material Adverse Effect on the Friess Companies, the LLCs or
AMG.
(f) Except as set forth in SCHEDULE 3.7(f), no exemptive orders,
"no-action" letters or similar exemptions or regulatory relief have been
obtained, nor are any requests pending therefor, by or with respect to either of
the Friess Companies, either of the LLCs, any Stockholder or any Mutual Fund, or
any officer, director, partner or employee of either of the Friess Companies,
the LLCs or the Mutual Funds, in connection with the business of the Friess
Companies, the LLCs or the Mutual Funds, or by or with respect to any Client of
either of the Friess Companies or the WY LLC in connection with the provision of
Investment Management Services to such Client by either of the Friess Companies
or either of the LLCs.
3.8 FINANCIAL STATEMENTS.
(a) The Friess Companies have delivered to AMG true and complete
copies of the following financial statements, copies of which are attached
hereto as SCHEDULE 3.8(a):
(i) An audited balance sheet of each of the Friess Companies at
December 31, 2000, December 31, 1999 and December 31, 1998, and audited
statements of income, retained earnings and cash flows of each of the
Friess Companies for each of the three (3) years then ended. The audited
balance sheet for each of the Friess Companies at
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December 31, 2000 (including the notes thereto) is referred to hereinafter
as such Friess Company's "Base Balance Sheet"; and
(ii) An unaudited balance sheet of each of the Friess Companies at
June 30, 2001, and unaudited statements of income, retained earnings and
cash flows of each of the Friess Companies for the period then ended,
certified by the Friess Companies' respective chief financial officers.
Said financial statements have been prepared in accordance with GAAP
using the accrual method of accounting, applied consistently during the periods
covered thereby (except that the Friess Companies' unaudited financial
statements do not include footnote disclosure and are subject to normal year-end
audit adjustments which are not in the aggregate material), and present fairly
the financial condition of the applicable Friess Company at the dates of said
statements and the results of its operations for the periods covered thereby.
(b) None of the Friess Companies or the LLCs has (including, with
respect to the giving of this representation as of the Closing Date, after
giving effect to the DE LLC) any liabilities of any nature, whether accrued,
absolute, contingent or otherwise, asserted or unasserted, known or unknown
(including, without limitation, liabilities as guarantor or otherwise with
respect to obligations of others, or contingent or potential liabilities
relating to activities of such Friess Company or such LLC or the conduct of its
businesses prior to the date hereof or the Closing, as applicable, regardless of
whether claims in respect thereof had been asserted as of such date), except:
(i) liabilities reflected or adequately reserved against on the Base Balance
Sheet of one of the Friess Companies, (ii) liabilities reflected in SCHEDULE
3.8(b) or on the unaudited balance sheet of one of the Friess Companies at June
30, 2001, included as part of SCHEDULE 3.8(a), (iii) liabilities incurred after
the date of the unaudited balance sheets of the Friess Companies at June 30,
2001, in the ordinary course of business of such Friess Company or the WY LLC
(as applicable) consistent with past practice which could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect on
the Friess Companies or the LLCs or on AMG and which, in the case of liabilities
incurred after the date of this Agreement, were not incurred in violation of the
terms of this Agreement or (iv) solely in the case of the Friess Companies,
liabilities for Taxes due or to become due.
3.9 TAXES.
(a) Each of the LLCs has paid or caused to be paid all federal,
state, local, foreign, and other taxes, government fees or the like, including,
without limitation, income taxes, estimated taxes, alternative minimum taxes,
franchise taxes, capital stock taxes, sales taxes, use taxes, ad valorem or
value added taxes, employment and payroll-related taxes, withholding taxes, and
transfer taxes, whether or not measured in whole or in part by net income, and
all deficiencies, or other additions to tax, interest, fines and penalties owed
by it (collectively, "Taxes" and, each individually, a "Tax"), required to be
paid by it through the date hereof. All Taxes required to be withheld by the
LLCs including, but not limited to, Taxes arising as a result of payments to
foreign persons or to employees of the LLCs, have been collected and withheld,
and have either been paid to the respective governmental agencies, set aside in
accounts for such purpose, or accrued, reserved against, and entered on the
books and records of the LLCs.
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(b) Each of the LLCs has, in accordance with applicable law, filed
all Tax Returns required to be filed by it, and all such returns correctly and
accurately in all material respects set forth the amount of any Taxes relating
to the applicable period. A list of all Tax Returns filed with respect to either
of the LLCs is set forth in SCHEDULE 3.9(b) attached hereto, and said Schedule
indicates those returns that have been audited or currently are the subject of
an audit. For each taxable period of each of the LLCs the Friess Companies have
delivered to AMG correct and complete copies of all Tax Returns filed by, and
all examination reports and statements of deficiencies assessed against or
agreed to by, either of the LLCs.
(c) Neither the IRS nor any other governmental authority responsible
for the imposition or collection of any Tax (a "Taxing Authority") is now
asserting or, to the Knowledge of the Friess Companies, threatening to assert
against either of the LLCs any deficiency or claim for additional Taxes. No
claim has ever been made by a Taxing Authority in a jurisdiction where an LLC
does not file reports and returns that such LLC is or may be subject to taxation
by that jurisdiction. There are no security interests on any of the assets of
the LLCs that arose in connection with any failure (or alleged failure) to pay
any Taxes. Neither of the LLCs has ever entered into a closing agreement
pursuant to Section 7121 of the Code.
(d) There has not been any audit of any Tax Return filed by either
of the LLCs, no such audit is in progress, and neither LLC has been notified by
any Taxing Authority that any such audit is contemplated or pending. No
extension of time with respect to any date on which a Tax Return was or is to be
filed by either of the LLCs is in force, and no waiver or agreement by either of
the LLCs is in force for the extension of time for the assessment or payment of
any Taxes.
(e) Neither of the LLCs has ever been (or has ever had any liability
for unpaid Taxes because it once was) a member of an "affiliated group" (as
defined in Section 1504(a) of the Code). Neither of the LLCs has ever filed, or
has ever been required to file, a consolidated, combined or unitary tax return
with any other entity. Neither of the LLCs is a party to, nor has any obligation
under, any tax sharing agreement. Neither of the LLCs has any liability for the
Taxes of any Person as a transferee or successor, by contract or otherwise.
(f) Neither of the LLCs' payroll, property, or receipts, or other
factors used in a particular state's apportionment or allocation formula results
in an apportionment or allocation of business income to any state or other
jurisdiction other than Wyoming, Arizona and Delaware, and neither of the LLCs
has any non-business income that is allocated, apportioned or otherwise sourced
to any state, commonwealth or other jurisdiction other than the States of
Wyoming, Arizona and Delaware.
(g) For purposes of this Agreement, all references to Sections of
the Code shall include any predecessor provisions to such Sections and any
similar provisions of federal, state, local or foreign law.
3.10 COLLECTIBILITY OF ACCOUNTS RECEIVABLE. All of the accounts
receivable of either of the Friess Companies or the LLCs shown or reflected on
the balance sheets of the Friess Companies as of June 30, 2001, or otherwise
existing at the date hereof (less the reserve for bad
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debts set forth on such balance sheets) are valid and enforceable claims, fully
collectible and subject to no setoff or counterclaim. Neither of the Friess
Companies or the LLCs has any accounts or loans receivable from any Person which
is affiliated with either of the Friess Companies or the LLCs, or from any
director, officer, partner or employee of either of the Friess Companies or the
LLCs, in either case except as disclosed in SCHEDULE 3.10 hereto.
3.11 ABSENCE OF CERTAIN CHANGES. Except as disclosed in SCHEDULE
3.11 attached hereto, since the date of the Base Balance Sheets, none of the
Friess Companies or the LLCs has (i) suffered any condition, event or occurrence
which has had or could reasonably be expected to have a Material Adverse Effect
on the Friess Companies, the LLCs or AMG, or (ii) taken any action which, had it
occurred after the date hereof and prior to the Closing, would have required
AMG's consent under Section 5.5 hereof (PROVIDED, HOWEVER, that, for purposes of
the application of this Section 3.11(ii) to the covenant set forth in Section
5.5(n) hereof, the twelve-month period immediately preceding the date of the
Base Balance Sheets shall be the reference period in lieu of the twelve-month
period referenced in Section 5.5(n) hereof).
3.12 ORDINARY COURSE. Except as otherwise specifically contemplated
by this Agreement, since the date of the Base Balance Sheets, each of the Friess
Companies and the WY LLC has conducted its business only in the ordinary course
and consistently with its prior practices (including without limitation, in the
case of the prior practices of the WY LLC, the prior practices of FAI). Since
its formation, the DE LLC has not engaged in any activities whatsoever other
than the taking of actions necessary for the performance of its obligations
hereunder, and the DE LLC has no assets or liabilities (other than pursuant to
the Existing DE LLC Agreement and, from and after the consummation of the DE LLC
Asset Transfer, assets assigned and liabilities assumed pursuant thereto). From
its formation through the date of the effectiveness of the WY LLC Asset
Transfer, the WY LLC did not engage in any activities whatsoever and had no
assets or liabilities, and from and after the date of the effectiveness of the
WY LLC Asset Transfer, the WY LLC has not engaged in any activities whatsoever
other than (i) the taking of actions necessary for the performance of its
obligations hereunder and (ii) the conduct of the business of FAI that was
contributed by FAI on such date to the WY LLC in the ordinary course and
consistently with the prior practices of FAI. From and after the date of the
effectiveness of the WY LLC Final Asset Transfer, FAI has not engaged in any
activities whatsoever other than the taking of actions necessary for the
performance of its obligations hereunder. Other than the WY LLC, none of the
Friess Companies or the LLCs is a party to any Advisory Contract.
3.13 BANKING RELATIONS. All of the arrangements which either of the
Friess Companies (or either of the LLCs) has with banking institutions are, in
all material respects, completely and accurately described in SCHEDULE 3.13
attached hereto, indicating with respect to each of such arrangements the type
of arrangement maintained (such as checking account, borrowing arrangements,
etc.) and the person or persons authorized as signatories or otherwise to take
action in respect thereof.
3.14 INTELLECTUAL PROPERTY.
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(a) Except as described in SCHEDULE 3.14, as of the date hereof FAI
and the WY LLC have, and after giving effect to the Closing and the DE LLC Asset
Transfer, the WY LLC and the DE LLC will have, exclusive ownership of, or
exclusive license to use (other than in the case of computer software that is
generally available to the public in the retail marketplace, for which the
licenses are non-exclusive), all patent, copyright, trade secret, trademark,
trade name, service mark, formulas, designs, inventions or other similar
proprietary rights (including, without limitation, all rights in and to the
names "Friess", "Friess Associates" and "Brandywine Funds") (collectively,
"Intellectual Property") used in the business of the Friess Companies and the
LLCs as presently conducted. All of the rights of FAI and the WY LLC (as of the
date hereof), and of the LLCs (after giving effect to the DE LLC Asset Transfer
and the Closing) in such Intellectual Property are and will be freely
transferable. There are no material claims or demands of any other person or
entity pertaining to any of such Intellectual Property owned by any of the
Friess Companies or the LLCs, and no proceedings are pending or, to the
Knowledge of the Friess Companies, threatened, which challenge the rights of
either of the Friess Companies or the LLCs in respect of the Intellectual
Property used in connection with their businesses. FAI and the WY LLC (as of the
date hereof), and the LLCs (after giving effect to the DE LLC Asset Transfer and
the Closing), have and will have the right to use, free and clear of any claims
or rights of other Persons except, with respect to licensed assets, the rights
of the owner/licensor thereof, all customer lists (subject to applicable
confidentiality restrictions), investment and other processes, computer software
(other than rights of other Persons in computer software that is generally
available to the public in the retail marketplace), systems, data compilations,
research results and other information required for or incident to their
services and their businesses as presently conducted.
(b) All items of Intellectual Property (including, without
limitation, any patents, patent applications, trademark registrations, trademark
applications or registered copyrights) which are material to the business or
operations of either of the Friess Companies or the LLCs (including without
limitation after giving effect to the DE LLC Asset Transfer and the Closing) are
listed in SCHEDULE 3.14.
(c) All licenses or other agreements under which any of the Friess
Companies or the LLCs are granted rights in items of Intellectual Property which
are material to the business or operations of either of the Friess Companies or
the LLCs (including without limitation after giving effect to the DE LLC Asset
Transfer and the Closing) are listed in SCHEDULE 3.14. All said licenses or
other agreements are in full force and effect, there is no material default by
any party thereto, and, except as set forth in SCHEDULE 3.14, all of the rights
of the Friess Companies and the WY LLC thereunder are freely assignable. To the
Knowledge of the Friess Companies, the licensors under said licenses and other
agreements have and had all requisite power and authority to grant the rights
purported to be conferred thereby. True and complete copies of all such licenses
or other agreements, and any amendments thereto, have been provided to AMG.
(d) None of the Friess Companies or the LLCs has granted rights to
others in Intellectual Property owned or licensed by either of the Friess
Companies or the LLCs.
(e) None of the Friess Companies or the LLCs has made proprietary or
non-public information available to any person (other than employees of the
Friess Companies or the
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LLCs) except pursuant to written agreements requiring the recipients to maintain
the confidentiality of such information and appropriately restricting the use
thereof. To the Knowledge of the Friess Companies, there is no infringement by
other Persons of any Intellectual Property rights of either of the Friess
Companies or the LLCs.
(f) The present business, activities and products of the Friess
Companies and the LLCs (including without limitation after giving effect to the
DE LLC Asset Transfer and the Closing) do not infringe any rights of any other
Person in Intellectual Property. No proceeding charging either of the Friess
Companies or the LLCs with infringement of any Intellectual Property of any
other Person has been filed or, to the Knowledge of the Friess Companies, is
threatened. None of the Friess Companies or the LLCs (including without
limitation after giving effect to the DE LLC Asset Transfer and the Closing) is
making unauthorized use of any confidential information or trade secrets of any
person, including without limitation, any former employer of any past or present
employee of the Friess Companies or the LLCs. Except as set forth in SCHEDULE
3.14, none of the Friess Companies, the LLCs, the Stockholders nor, to the
Knowledge of the Friess Companies, any of the Friess Companies' or the LLCs'
other employees, have any agreements or arrangements with any Persons (other
than the Friess Companies or the LLCs) related to confidential information or
trade secrets of such persons or restricting any such employee's ability to
engage in business activities of any nature. To the Knowledge of the Friess
Companies, the activities of the Friess Companies' and the LLCs' employees on
behalf of the Friess Companies and the LLCs (including without limitation after
giving effect to the DE LLC Asset Transfer and the Closing) do not violate any
such agreements or arrangements.
3.15 CONTRACTS. Except for those contracts, commitments, plans,
agreements and licenses described in SCHEDULE 3.3(a), SCHEDULE 3.6(a), SCHEDULE
3.7(a), the UPDATED SCHEDULE 3.7 delivered prior to the Closing (solely with
respect to the making of this representation and warranty as of the Closing
Date), SCHEDULE 3.14, SCHEDULE 3.15, SCHEDULE 3.19, SCHEDULE 3.24 and SCHEDULE
3.29(a) hereto (true and complete copies of which have been delivered to AMG)
(collectively, the "Contracts"), and except for the Existing LLC Agreements, the
Employment Agreements and the Non-Solicitation Agreements, none of FAI, FAID,
the WY LLC, the DE LLC, any Mutual Fund, any of the Stockholders, any of the
Majority Management Owners or, to the Knowledge of the Friess Companies, any of
the Management Owners other than the Majority Management Owners, is a party to
(or otherwise bound by) any:
(a) Advisory Contract or any other contract for the provision of
Investment Management Services or other similar services;
(b) contract or agreement for the provision of services to Clients
of either of the Friess Companies or the LLCs, other than Investment Management
Services (e.g., tax preparation or similar services);
(c) plan or contract providing for bonuses, pensions, options, stock
(or other beneficial interest) purchases (or other securities or phantom equity
purchases), deferred compensation, retirement payments, profit sharing, or the
like;
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(d) employment contract or contract for services which is not
terminable at will by the applicable Friess Company or LLC that is a party
thereto (including without limitation by the applicable LLC after giving effect
to the DE LLC Asset Transfer and the Closing) without liability for any penalty
or severance payment (excluding any liability or obligation imposed by statute
(e.g., COBRA));
(e) contract or agreement for the purchase of any assets, material
or equipment except purchase orders in the ordinary course for less than
$100,000 each, such orders not exceeding $500,000 in the aggregate;
(f) other contract or agreement creating any obligations of either
of the Friess Companies or the LLCs of $250,000 or more with respect to any such
contract or agreement not specifically disclosed elsewhere under this Agreement;
(g) contract or agreement for the sale of all or any material
portion of the assets of either of the Friess Companies or the LLCs or any
contract for the purchase of all or any material portion of the assets of any
other entity (other than the Asset Transfer Agreements and the agreements
contemplated thereby);
(h) contract or agreement with any investment or research
consultant, solicitor or sales agent, or otherwise with respect to the referral
of business to either of the Friess Companies or the LLCs or any of the
Stockholders (including without limitation any agreement with respect to
solicitation of prospective investors in any of the Mutual Funds);
(i) contract or agreement containing covenants limiting the freedom
of either of the Friess Companies or the LLCs or any of the Stockholders (or
their respective Affiliates) to compete in any line of business or with any
Person;
(j) license agreement (as licensor or licensee) which is material to
the business or operations of the Friess Companies or the LLCs;
(k) agreement providing for the borrowing or lending of money, and
none of the Friess Companies or the LLCs has any obligations: (i) for borrowed
money, (ii) evidenced by bonds, debentures, notes or similar instruments, (iii)
to pay the deferred purchase price of property or services, (iv) under leases
that would, in accordance with GAAP, appear on the balance sheet of the lessee
as a liability, (v) secured by a Claim, (vi) in respect of letters of credit, or
bankers acceptances, contingent or otherwise, or (vii) in respect of any
guaranty or endorsement or other obligations to be liable for the debts of
another Person; or
(l) other material contract or agreement relating to the business of
either of the Friess Companies or the LLCs to which either of the Friess
Companies, either of the LLCs or any Stockholder is a party or otherwise bound.
Each of the Contracts is valid and in full force and effect in
accordance with its respective terms, and there is not and has not been, under
any Contract, a material breach or event which, with the giving of notice or the
lapse of time or both, would become such a breach. Each of the Friess Companies
and the LLCs has complied with and is in compliance with the
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Client's guidelines and restrictions set forth in any Contract described in
SCHEDULE 3.7(a), including, without limitation, any limitation set forth in the
applicable prospectus, offering memorandum or marketing material for any
collective investment vehicle or other governing documents for any Client. In
the event the consents set forth in SCHEDULE 3.5, and with respect to the
Advisory Contracts subject to any such consents, those consents set forth in
SCHEDULE 3.7(a), are obtained (and including without limitation after giving
effect to the DE LLC Asset Transfer and the Closing), each Contract will remain
valid and effective in accordance with its respective terms, and one of the LLCs
will be entitled to all rights and remedies thereunder to which FAI or FAID,
respectively, is entitled on the date hereof (and the WY LLC will be entitled to
all rights and remedies thereunder to which the WY LLC is entitled on the date
hereof, in the case of Contracts to which it is a party on the date hereof), or
such Contract will have been replaced by a new contract with the same party or
parties on terms at least as favorable to such LLC as the terms of the present
Contract are to FAI, FAID or the WY LLC (as applicable).
3.16 LITIGATION. Except as set forth in SCHEDULE 3.16, there is no
litigation or other action, suit, proceeding or, to the Knowledge of the Friess
Companies, investigation, examination or audit, at law or in equity, by or
before any federal, state, municipal or other governmental department,
commission, bureau, board, agency or instrumentality, domestic or foreign
(including, without limitation, any voluntary or involuntary proceedings under
the Bankruptcy Code or any action, suit, proceeding or investigation under any
federal or state securities law, rule or regulation), (a) in which either of the
Friess Companies, either of the LLCs, any Stockholder or any other officer,
director, member, partner or, to the Knowledge of the Friess Companies, any
other employee of any such Person is a party or otherwise engaged or, to the
Knowledge of the Friess Companies, with which any of them is threatened, in
connection with the business, affairs, properties or assets of the Friess
Companies or either of the LLCs, or (b) which seeks damages from any Person
identified in clause (a) of this Section 3.16 in connection with the
transactions contemplated hereby, or (c) which (individually or in the
aggregate) would reasonably be expected to call into question the validity or
hinder the enforceability or performance of this Agreement, or of the other
agreements, documents and instruments contemplated hereby and the transactions
contemplated hereby and thereby. There are no proceedings pending or, to the
Knowledge of the Friess Companies, threatened, relating to the termination of,
or limitation of, the rights of any such Person under or with respect to its
registration under the Advisers Act or any similar or related rights under any
registrations or qualifications with various states or other jurisdictions, or
under any other Laws and Regulations.
3.17 COMPLIANCE WITH LAWS.
(a) Except as set forth in SCHEDULE 3.17, each of the Friess
Companies, the LLCs and the Stockholders is, and at all times has been, in
material compliance with all laws and governmental rules and regulations (other
than those related to Taxes, which are subject to separate representations and
warranties set forth herein), domestic or foreign, including, without
limitation, the Advisers Act, the Commodity Exchange Act, ERISA, the Exchange
Act, the Investment Company Act, the Securities Act and the regulations
promulgated under each of the foregoing; all laws regulating, relating to or
imposing liability or standards of conduct concerning protection of human health
or the environment; the rules and regulations of self-regulatory organizations
including, without limitation, the NASD and each applicable exchange
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(as defined under the Exchange Act); and all other foreign, federal or state
securities laws and regulations applicable to the business or affairs or
properties or assets of either of the Friess Companies or the LLCs (collectively
"Laws and Regulations").
(b) None of the Friess Companies, the LLCs or the Stockholders, or
any other director, officer or employee of either of the Friess Companies or the
LLCs, is in material default with respect to any judgment, order, writ,
injunction, decree, demand or assessment issued by any court or any foreign,
federal, state, municipal or other governmental agency, board, commission,
bureau, instrumentality or department, domestic or foreign, or by any
self-regulatory authority relating to or otherwise affecting either of the
Friess Companies or either of the LLCs. None of the Friess Companies, the LLCs
or the Stockholders, or any other director, officer or employee of either of the
Friess Companies or the LLCs, has been or is charged with or, to the Knowledge
of the Friess Companies, threatened with or under investigation with respect to,
any material violation of any Laws and Regulations affecting or relating to
either of the Friess Companies or either of the LLCs or their businesses or the
transactions contemplated hereby.
(c) Except as set forth in SCHEDULE 3.17, none of the Friess
Companies, the LLCs or the Stockholders is subject to any cease-and-desist or
other order issued by, or is a party to any written agreement, consent agreement
or memorandum of understanding with, or is a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or is a
recipient of any supervisory letter from or has adopted any resolutions at the
request of any self-regulatory organization or government entity, that
materially restricts the conduct of any of the Friess Companies, the
Stockholders or the LLCs or that in any other material manner relates to the
business of any of the Friess Companies, the Stockholders or the LLCs, and to
the Knowledge of the Friess Companies, none of them is threatened with the
imposition or receipt of any of the foregoing.
3.18 BUSINESS; REGISTRATIONS.
(a) The Friess Companies and the WY LLC have at all times since
their respective inceptions been engaged solely in the business of providing
Investment Management Services.
(b) Each of FAI FAID and the WY LLC has at all times since its
inception been duly registered as an investment adviser under the Advisers Act
(PROVIDED that the WY LLC succeeded to the registration of FAI as an investment
adviser on or about June 1, 2001, and thereafter FAI has not been a registered
investment adviser under the Advisers Act (nor required to be registered as such
by applicable Laws and Regulations)). Each of FAID and the WY LLC is duly
registered, licensed and qualified as an investment adviser in all jurisdictions
where such registration, licensing or qualification is required in order to
conduct its business. The Friess Companies have delivered to AMG true and
complete copies of FAID's and the WY LLC's most recent Form ADV, as amended to
date, and all of such entities' respective other foreign and domestic
registration forms, likewise as amended to date. The information contained in
such forms was true and complete in all material respects at the time of filing
and the Friess Companies and the WY LLC have made all amendments to such forms
as they are required to
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make under applicable Laws and Regulations. Each of the Friess Companies and the
WY LLC and each of their investment adviser representatives (as such term is
defined in Rule 203A-3(a) under the Advisers Act) have, and after giving effect
to the Closing and the DE LLC Asset Transfer, each of the LLCs and each of their
investment adviser representatives will have, all material permits,
registrations, licenses, franchises, certifications and other approvals
(collectively, "Licenses") required from foreign, federal, state or local
authorities in order for them to conduct the businesses presently conducted by
the Friess Companies and the WY LLC and such representatives in the manner
presently conducted and proposed to be conducted. None of the Friess Companies,
any of such representatives or the LLCs is subject to any limitation imposed in
connection with one or more of the Licenses. None of the Friess Companies or the
LLCs has been a "broker" or "dealer" within the meaning of the Exchange Act, a
"commodity pool operator" or "commodity trading adviser" within the meaning of
the Commodity Exchange Act, or a trust company, at any time since its inception.
None of the Friess Companies, the LLCs or any of the Stockholders, nor any of
the Friess Companies' or the LLCs' other directors, officers or employees, is
registered or required to be registered as a broker or dealer, a commodity
trading adviser, a commodity pool operator, a futures commission merchant, an
introducing broker, a registered representative or associated person, a
counseling officer, an insurance agent, a sales person or in any similar
capacity with the SEC, the Commodity Futures Trading Commission, the National
Futures Association, the NASD or the securities commission of any state or any
self-regulatory body. Except as set forth on SCHEDULE 3.18(b), no person other
than a full-time employee of one of the Friess Companies or the LLCs renders
Investment Management Services to or on behalf of Clients of the Friess
Companies or the LLCs or solicits Clients with respect to the provision of
Investment Management Services by either of the Friess Companies or the LLCs.
(c) None of the Friess Companies, the LLCs or, to the Knowledge of
the Friess Companies, any person "associated" (as defined under both the
Investment Company Act and the Advisers Act) with either of the Friess Companies
or the LLCs, have been convicted of any crime or is or has engaged in any
conduct that would be a basis for (i) denial, suspension or revocation of
registration of an investment adviser under Section 203(e) of the Advisers Act
or Rule 206(4)-4(b) thereunder, or ineligibility to serve as an associated
person of an investment adviser, (ii) being ineligible to serve as an investment
adviser (or in any other capacity contemplated by the Investment Company Act) to
a registered investment company pursuant to Section 9(a) or 9(b) of the
Investment Company Act or (iii) being ineligible to serve as a broker-dealer or
an associated person of a broker-dealer pursuant to Section 15(b) of the
Exchange Act, and to the Knowledge of the Friess Companies, there is no
proceeding or investigation that is reasonably likely to become the basis for
any such ineligibility, disqualification, denial, suspension or revocation.
3.19 INSURANCE. Each of the Friess Companies and the LLCs has in
full force and effect such insurance as is customarily maintained by firms of
similar size in the same or a similar business, with respect to its businesses,
properties and assets, and all bonds required by ERISA and by any contract or
other agreement to which either of the Friess Companies is a party, all as
listed in SCHEDULE 3.19 hereto. None of the Friess Companies or the LLCs is in
material default under any such insurance policy. After giving effect to the
Closing and the DE LLC Asset Transfer, each such insurance policy or equivalent
policies will be in full force and
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effect, with one of the LLCs as the sole owner and beneficiary of such policy.
To the Knowledge of the Friess Companies, no circumstances exist which would
cause any such insurance policy to fail to be renewed on terms materially
identical to those currently in effect.
3.20 POWERS OF ATTORNEY. None of the Friess Companies, the LLCs or
any Stockholder (with respect to its FAI Shares, FAID Shares or any other
interest in FAI, FAID or either of the LLCs, or otherwise in connection with the
business of the Friess Companies) has any outstanding power of attorney.
3.21 FINDER'S FEE. Other than fees and expenses payable to Goldman,
Sachs & Co. pursuant to a written agreement previously provided by the Friess
Companies to AMG (which will be paid by the Friess Companies), none of the
Friess Companies, the LLCs or any Stockholder has incurred, become liable for or
otherwise entered into any contract or agreement with respect to any broker's
commission, finder's fee or similar payment relating to or in connection with
the transactions contemplated by this Agreement.
3.22 CORPORATE RECORDS; COPIES OF DOCUMENTS. The record books of
each of the Friess Companies and the LLCs accurately and completely record all
actions taken by the Stockholders, board of directors (or other applicable
governing body) and committees of such Friess Company or LLC (as applicable) in
connection with the businesses and affairs of such Friess Company or LLC (as
applicable), and true and complete copies of such documents have been made
available to AMG for review.
3.23 TRANSACTIONS WITH INTERESTED PERSONS. Except as set forth in
SCHEDULE 3.23, during the past three (3) years, none of the Friess Companies or
the LLCs has been a party to any material transaction or material contract or
arrangement with any of the Stockholders, any other director, officer or
employee of either of the Friess Companies or the WY LLC, or any of the
respective Affiliates or Immediate Family members of any such Persons (other
than the Contracts provided to AMG prior to the date of this Agreement), and, to
the Knowledge of the Friess Companies, none of such Persons owns, directly or
indirectly on an individual or joint basis, any interest (excluding passive
investments in the shares of any enterprise which are publicly traded, PROVIDED
such Person's holdings therein, together with any holdings of such Person's
Affiliates and Immediate Family members, are less than five percent (5%) of the
outstanding shares or comparable interest in such entity in the aggregate) in,
or serves as an employee, independent contractor, officer, director or in
another similar capacity of, any competitor or Client of either of the Friess
Companies or the LLCs or any other organization which has or during the past
three (3) years has had a material contract or arrangement with either of the
Friess Companies or the LLCs.
3.24 EMPLOYEE PROGRAMS.
(a) SCHEDULE 3.24 hereto lists every Employee Program (as defined
below).
(b) Each Employee Program which is intended to qualify under Section
401(a) or 501(c)(9) of the Code has received a favorable determination or
approval letter from the IRS regarding its qualification under such section, and
has in fact been qualified in all
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material respects under the applicable section of the Code from the effective
date of such Employee Program through and including the Closing (or, if earlier,
the date that all of such Employee Program's assets were distributed). To the
Knowledge of the Friess Companies, no event or omission has occurred which could
reasonably be expected to cause any such Employee Program to lose its
qualification under the applicable Code section.
(c) Each Employee Program has been established and administered in
accordance with its terms in all material respects, and is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
applicable Laws and Regulations. With respect to any Employee Program, there has
occurred no "prohibited transaction," as defined in Section 406 of ERISA or
Section 4975 of the Code, or breach of any duty under ERISA or other applicable
law (including, without limitation, any health care continuation requirements or
any other tax law requirements, or conditions to favorable tax treatment,
applicable to such plan), which could reasonably be expected to result, directly
or indirectly, in any material taxes, penalties or other liabilities to FAI,
FAID, either of the LLCs or AMG. No litigation, arbitration, or governmental
administrative proceeding (or investigation) or other proceeding (other than
those relating to routine claims for benefits) is pending or, to the Knowledge
of the Friess Companies, threatened with respect to any such Employee Program
and no facts or circumstances exist that could reasonably be expected to give
rise to any such litigation, arbitration or proceeding.
(d) None of the FAI, FAID or the WY LLC or any ERISA Affiliate (as
defined below) (i) has ever maintained any employee benefit plan, program or
arrangement (including, without limitation, the Employee Programs) which has
been subject to Title IV of ERISA (including, but not limited to, any
Multiemployer Plan (as defined below)) or (ii) has ever provided health care or
any other non-pension benefits to any employees after their employment is
terminated (other than as required by part 6 of subtitle B of title I of ERISA)
or has ever promised to provide such post-termination benefits.
(e) With respect to each Employee Program complete and correct
copies of the following documents (if applicable to such Employee Program) have
previously been delivered to AMG: (i) all documents embodying or governing such
Employee Program, and any funding medium for the Employee Program (including,
without limitation, trust agreements) as they may have been amended; (ii) the
most recent IRS determination or approval letter with respect to such Employee
Program under Code Sections 401 or 501(c)(9), and any applications for
determination or approval subsequently filed with the IRS; (iii) the three (3)
most recently filed IRS Forms 5500, with all applicable schedules and
accountants' opinions attached thereto; (iv) the summary plan description for
such Employee Program (or other descriptions of such Employee Program provided
to employees) and all modifications thereto; (v) any insurance policy (including
any fiduciary liability insurance policy) related to such Employee Program; (vi)
any documents evidencing any loan to an Employee Program that is a leveraged
employee stock ownership plan; and (vii) all other materials requested by AMG
and reasonably necessary for AMG to perform any of its responsibilities with
respect to any Employee Program subsequent to the Closing (including, without
limitation, health care continuation requirements).
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(f) Each Employee Program may be amended, terminated, modified or
otherwise revised FAI, FAID and the WY LLC, including the elimination of any and
all future benefit accruals under any Employee Program.
(g) For purposes of this section:
(i) "Employee Program" means (A) all employee benefit plans within
the meaning of ERISA Section 3(3), including, but not limited to, multiple
employer welfare arrangements (within the meaning of ERISA Section 3(4)),
plans to which more than one unaffiliated employer contributes and
employee benefit plans (such as foreign or excess benefit plans) which are
not subject to ERISA; and (B) all material employment agreements,
collective bargaining agreements, fringe benefits, consulting agreements,
stock option plans, bonus or incentive award plans, severance pay policies
or agreements, change in control agreements, deferred compensation
agreements, supplemental income arrangements, vacation plans, and all
other employee benefit plans, agreements, programs, policies and
arrangements not described in (A) above, whether formal or informal, oral
or written, that are maintained by FAI, FAID and the WY LLC or any ERISA
Affiliate for the benefit of any current or former employee of the Friess
Companies or the LLCs or pursuant to which the Friess Companies or the
LLCs have any obligations or liabilities. In the case of an Employee
Program funded through an organization described in Code Section
501(c)(9), each reference to such Employee Program shall include a
reference to such organization.
(ii) An entity "maintains" an Employee Program if such entity
sponsors, contributes to, or provides (or has promised to provide)
benefits under such Employee Program, or has any obligation (by agreement
or under applicable law) to contribute to or provide benefits under such
Employee Program, or if such Employee Program provides benefits to or
otherwise covers employees or former employees of such entity, or their
spouses, dependents, or beneficiaries.
(iii) An entity is an "ERISA Affiliate" of FAI, FAID and the WY LLC
if it would have ever been considered a single employer with FAI, FAID and
the WY LLC under ERISA Section 4001(b) or part of the same "controlled
group" as FAI, FAID and the WY LLC for purposes of ERISA Section
302(d)(8)(C).
(iv) "Multiemployer Plan" means a multiemployer plan within the
meaning of Section 3(37) of ERISA.
3.25 DIRECTORS, OFFICERS AND EMPLOYEES.
(a) SCHEDULE 3.25(a) hereto contains a true and complete list of all
current directors, officers and employees of either of the Friess Companies or
the LLCs, including each such Person's date of birth and date of commencement of
employment with the Friess Companies. The supplemental disclosure letter, dated
as of the date hereof, provided by the Friess Companies to AMG contains a true
and complete list of each of the persons described in the immediately preceding
sentence setting forth, for each such person, the total compensation of
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such person for the twelve months ended December 31, 2000. Each of the Majority
Management Owners is in good health. To the Knowledge of the Friess Companies,
each of the Management Owners (other than the Majority Management Owners) is in
good health as of the date of this Agreement.
(b) None of FAI, FAID or the WY LLC is in default with respect to
any material term or condition of any Employee Program, nor will the Closing (or
the transactions contemplated hereby or thereby) result in any such default,
including, without limitation, after the giving of notice, lapse of time or
both. Neither FAI, FAID nor the WY LLC is delinquent in payments to any of its
employees for any wages, salaries, commissions, bonuses or other direct
compensation for any services performed for it to the date hereof or amounts
required to be reimbursed to such employees. Except as set forth on SCHEDULE
3.25(b), none of FAI, FAID, the LLCs or AMG could, by reason of the transactions
contemplated by this Agreement or anything done prior to the Closing, be liable
to any employee of FAI, FAID or the WY LLC for any payments (other than the
Purchase Price). None of FAI, FAID or the LLCs has made any payments, is
obligated to make any payments, or is a party to any agreement that under
certain circumstances could obligate FAI, FAID, either of the LLCs or AMG to
make any payments, that would constitute a parachute payment within the meaning
of Section 280G of the Code. Neither FAI, FAID nor the WY LLC has any policy,
practice, plan or program of paying severance pay or any form of severance
compensation in connection with the termination of employment. There are no
charges of employment discrimination or unfair labor practices against or
involving FAI, FAID or the WY LLC. There are no grievances, complaints or
charges that have been filed against FAI, FAID, or the WY LLC under any dispute
resolution procedure that could have a Material Adverse Effect on FAI, FAID,
either of the LLCs or AMG or the conduct of their respective businesses, and
there is no arbitration or similar proceeding pending and no claim therefor has
been asserted in writing (or otherwise, to the Knowledge of the Friess
Companies). FAI, FAID and the WY LLC have in place all material employee
policies required by applicable Laws and Regulations, and there have been no
material violations or alleged violations of any of such policies. None of the
Friess Companies or the LLCs has received any notice indicating that any of its
employment policies or practices is currently being audited or investigated by
any foreign, federal, state or local government agency. Each of FAI, FAID and
the WY LLC is, and at all times since November 6, 1986 has been, in material
compliance with the requirements of the Immigration Reform Control Act of 1986.
3.26 NON-FOREIGN STATUS. No Stockholder is a "foreign person" within
the meaning of Section 1445 of the Code and Treasury Regulations Section
1.1445-2.
3.27 TRANSFERS OF EQUITY. No holder of stock of FAI or FAID or
holder of ownership interests in the WY LLC has at any time transferred any of
such stock to any employee of FAI, FAID or either of the LLCs, which transfer
constituted compensation for services rendered to FAI, FAID or either of the
LLCs by said employee.
3.28 CODE OF ETHICS; INSIDER TRADING AND CONFLICTS POLICIES. Each of
the Friess Companies and the WY LLC has adopted a written policy regarding
insider trading and conflicts of interest and a Code of Ethics which complies,
and for at least the past three (3) years has complied, in all material respects
with all applicable provisions of the Advisers Act (including
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without limitation Section 204A thereof) and the Investment Company Act
(including without limitation Section 17(j) thereof), a true and complete copy
of which has been delivered to AMG prior to the date hereof. All employees of
the Friess Companies and the WY LLC have executed acknowledgments that they are
bound by the provisions of such Codes of Ethics and insider trading and
conflicts policies. The policies of the Friess Companies and the WY LLC with
respect to avoiding conflicts of interest are as set forth in each such Person's
most recent Form ADV or incorporated by reference therein, and such disclosure
complies in all material respects with the requirements of Form ADV. Each Mutual
Fund has adopted a Code of Ethics which complies with all applicable provisions
of the Investment Company Act (including without limitation Section 17(j)
thereof), copies of which have been delivered or made available to AMG prior to
the date hereof. During the past five (5) years, there have been no material
violations or allegations of material violations of such Codes of Ethics,
insider trading policies or conflicts policies.
3.29 CERTAIN REPRESENTATIONS AND WARRANTIES AS TO THE MUTUAL FUNDS.
(a) SCHEDULE 3.29(a) hereto describes each of the investment
advisory agreements, distribution or underwriting contracts, plans adopted
pursuant to Rule 12b-1 under the Investment Company Act, arrangements for the
payment of service fees (as such term is defined in Rule 2830 of the NASD
Conduct Rules), administrative services agreements and other agreements and
contracts (other than agreements and contracts entered into by the Mutual Funds
in the ordinary course of business in connection with the making of portfolio
investments) (collectively, the "Mutual Fund Agreements") pertaining to any of
the Mutual Funds (other than, in the case of a Subadvised Fund, any such
agreement, contract, plan or arrangement to which none of the Friess Companies,
the LLCs, the Stockholders or the Management Owners is a party). As to each
Mutual Fund (other than a Subadvised Fund), there has been in full force and
effect an investment advisory, sub-advisory, distribution or underwriting
agreement (as applicable) at all times since the inception of such Mutual Fund,
and each Mutual Fund Agreement pursuant to which either of the Friess Companies
or the WY LLC has received compensation with respect to its activities in
connection with any of the Mutual Funds (other than a Subadvised Fund) was duly
approved in accordance with the applicable provisions of the Investment Company
Act.
(b) There are no special restrictions, consent judgments or SEC or
judicial orders on or with regard to any of the Mutual Funds (other than a
Subadvised Fund) currently in effect.
(c) Each of the Mutual Funds (other than a Subadvised Fund) is duly
organized, validly existing and in good standing in the jurisdiction in which it
is organized and has all requisite power and authority to conduct its business
in the manner and in the places where such business is currently conducted. Each
Mutual Fund (other than a Subadvised Fund) is and has been, since its inception,
engaged solely in the business of an investment company. Since inception, each
of the Mutual Funds (other than a Subadvised Fund) have been a duly registered
investment company in material compliance with the Investment Company Act and
the rules and regulations promulgated thereunder and duly registered or licensed
and in good standing under the laws of each jurisdiction in which such
qualification is necessary, except
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where the failure to be duly registered and in good standing will not and would
not reasonably be expected to have a Material Adverse Effect on the respective
Mutual Fund, the Friess Companies, the LLCs or AMG. Since their initial
offering, shares of each of the Mutual Funds (other than a Subadvised Fund) have
been duly qualified for sale under the securities laws of each jurisdiction in
which they have been sold or offered for sale at such time or times during which
such qualification was required, and, if not so qualified, the failure to so
qualify would not have a Material Adverse Effect on the respective Mutual Fund,
the Friess Companies, the LLCs or AMG. The offering and sale of shares of each
of the Mutual Funds (other than a Subadvised Fund) have been registered under
the Securities Act during such period or periods for which such registration is
required, the related registration statement has become effective under the
Securities Act, no stop order suspending the effectiveness of any such
registration statement has been issued and no proceedings for that purpose have
been instituted or, to the Knowledge of the Friess Companies, are contemplated,
and neither such registration statement nor any amendments thereto contained at
the time such registration statement or amendment became effective, an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Copies of the current
registration statement of each of the Mutual Funds (other than a Subadvised
Fund) under the Investment Company Act and under the Securities Act have been
provided to AMG by the Friess Companies. All of the outstanding shares of
capital stock of each Mutual Fund (other than a Subadvised Fund) are duly
authorized, validly issued, fully paid and non-assessable, and none of such
shares have been issued in violation of any applicable Laws and Regulations.
(d) Each of the Mutual Funds' investments have been made in
accordance with its investment policies and restrictions set forth in its
registration statement in effect at the time the investments were made and have
been held in accordance with its respective investment policies and
restrictions, to the extent applicable and in effect at the time such
investments were held (solely to the extent such investments were made by any of
the Friess Companies or the LLCs, in the case of a Subadvised Fund).
(e) (i) Each of the Mutual Funds (other than a Subadvised Fund) has
timely filed (other than in respect of Taxes, which are the subject of separate
representations and warranties set forth herein) all reports, registration
statements and other documents, together with any amendments required to be made
with respect thereto, that were required to be filed with any governmental
authority, including the SEC (the "Fund Regulatory Documents"), and has paid all
fees and assessments due and payable in connection therewith, and (ii) as of
their respective dates, each of the foregoing filings complied in all material
respects with the requirements of the securities laws and the rules and
regulations of the SEC promulgated thereunder applicable to such Fund Regulatory
Documents, and none of the Fund Regulatory Documents or related prospectuses, as
of their respective dates, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Friess Companies have previously delivered
or made available to AMG a complete copy of each Fund Regulatory Document filed
with the SEC since January 1, 1998 and will deliver to AMG promptly after the
filing thereof a complete copy of each Fund Regulatory Document filed
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with the SEC by a Mutual Fund (other than a Subadvised Fund) after the date
hereof and prior to the Closing.
(f) All proxy statements to be prepared for use by the Mutual Funds
(other than a Subadvised Fund) in connection with the transactions contemplated
by this Agreement, the written information provided by the Mutual Funds (other
than a Subadvised Fund) to each Board of Directors (or equivalent bodies) in
connection with this Agreement or the transactions contemplated hereby at the
time such information is provided and, in the case of a proxy statement, the
date of the shareholder vote for which such proxy statement will be used, as
then amended or supplemented, in each case will (other than with respect to
written information provided by AMG specifically for inclusion therein, as to
which no representation or warranty is made) be accurate and complete and will
not contain any untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(g) For all taxable years since inception, each of the Mutual Funds
(other than a Subadvised Fund) has elected to be treated as, and has qualified
to be classified as, a regulated investment company taxable under Subchapter M
of Chapter 1 of the Code and under any similar provisions of state or local law
in any jurisdictions in which such Mutual Fund filed, or is required to file, a
Tax Return. Each of the Mutual Funds (other than a Subadvised Fund) has timely
filed all material Tax returns and reports (including information returns,
declarations and reports) (the "Mutual Fund Tax Returns") required to be filed
by it with any Taxing Authorities and has paid, or withheld and paid over, all
Taxes which were shown to be due on the Mutual Fund Tax Returns. The information
contained in such Mutual Fund Tax Returns is true, correct and complete in all
material respects. With respect to each Mutual Fund (other than a Subadvised
Fund), there are no liabilities for Taxes which have not been paid in prior
periods or for which an adequate reserve for such liability does not exist. With
respect to each Mutual Fund (other than a Subadvised Fund), no claims have been
or are being asserted by any Taxing Authorities with respect to any Taxes and,
to the Knowledge of the Friess Companies, there are no threatened claims for
Taxes.
(h) None of the Friess Companies, the LLCs, any of the Stockholders
or any person who is an "affiliated person" (as defined in the Investment
Company Act) or any other "interested person" of either of the Friess Companies
or the LLCs (as defined in the Investment Company Act), receives or is entitled
to receive any compensation directly or indirectly (i) from any person in
connection with the purchase or sale of securities or other property to, from or
on behalf of any of the Mutual Funds, other than bona fide ordinary compensation
as principal underwriter for any of the Mutual Funds or as broker in connection
with the purchase or sale of securities in compliance with Section 17(e) of the
Investment Company Act, or (ii) from any of the Mutual Funds or its security
holders for other than bona fide investment advisory, administrative or other
services. Accurate and complete disclosure of all such compensation arrangements
has been made in the registration statement of the Mutual Funds filed under the
federal securities laws.
(i) The Friess Companies have provided to AMG true, correct and
complete copies of the audited financial statements, prepared in accordance with
GAAP, of each of the
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Mutual Funds (other than a Subadvised Fund) for the past three fiscal years (or
such shorter period as such Mutual Fund shall have been in existence), and
unaudited financial statements, prepared in accordance with GAAP, of each of the
Mutual Funds (other than a Subadvised Fund) for the first six months of its most
recent fiscal year if the ending date of such six-month period occurred more
than fifteen (15) days prior to the date of this Agreement (each hereinafter
referred to as a "Mutual Fund Financial Statement"). Each of the Mutual Fund
Financial Statements is consistent with the books and records of the related
Mutual Fund, and presents fairly the consolidated financial position of the
related Mutual Fund in accordance with GAAP applied on a consistent basis
(except as otherwise noted therein) at the respective date of such Mutual Fund
Financial Statement and the results of operations and cash flows for the
respective periods indicated. The Mutual Fund Financial Statements reflect and
disclose all material changes in accounting principles and practices adopted by
each of the Mutual Funds during the periods covered by each Mutual Fund
Financial Statement. The books of account pertaining to each of the Mutual Funds
(other than a Subadvised Fund) fairly reflect their respective transactions.
None of the Mutual Funds (other than a Subadvised Fund) has any liabilities of
any nature, whether accrued, absolute, contingent or otherwise, asserted or
unasserted, known or unknown, except: (i) liabilities reflected or adequately
reserved against on the most recent balance sheet included in its Mutual Fund
Financial Statements and (ii) liabilities incurred after the date of the most
recent balance sheet included in its Mutual Fund Financial Statements in the
ordinary course of business of such Mutual Fund consistent with past practice
which could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on the Friess Companies or the LLCs, on such
Mutual Fund or on AMG.
(j) There is no litigation or legal action, suit, proceeding or
investigation at law or in equity pending or, to the Knowledge of the Friess
Companies, threatened in any court or before or by any governmental agency or
instrumentality, department, commission, board, bureau or agency, or before any
arbitrator, by or against any of the Mutual Funds (other than a Subadvised
Fund), or any officer or director thereof relating to the activities of the
Mutual Funds (other than a Subadvised Fund), any disqualification of either of
the Friess Companies or the LLCs or any Stockholder under Section 9(a) of the
Investment Company Act, or any event which would require either of the Friess
Companies or the LLCs to give an affirmative response to any of the questions in
Item 11 of its Form ADV (or any similar or successor form). There are no
judgments, injunctions, orders or other judicial or administrative mandates
outstanding against or affecting any of the Mutual Funds (other than a
Subadvised Fund) or any officer or director thereof relating to the activities
of or affecting the Mutual Funds (other than a Subadvised Fund).
(k) Each Mutual Fund (other than a Subadvised Fund) is, and at all
times has been, in compliance in all material respects with all applicable
requirements, including all reporting and disclosure requirements, prescribed by
any and all Laws and Regulations and orders thereunder.
3.30 DISCLOSURE. The representations, warranties and statements
contained in this Agreement and the other Transaction Documents executed and
delivered by any of the Friess Companies or the Stockholders do not contain any
untrue statement of a material fact. All consent solicitation and similar
materials to be prepared for use in connection with the transactions
contemplated by this Agreement at the time such information is provided or used,
as
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then amended or supplemented, and any information disseminated in respect of the
transactions contemplated hereby at the time such information is disseminated,
in each case, will be accurate and complete, PROVIDED that no representation is
made as to the accuracy or completeness of written information supplied by AMG
for inclusion therein.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE CHARITIES.
4.1 MAKING OF SEVERAL REPRESENTATIONS AND WARRANTIES. As a material
inducement to AMG to enter into this Agreement and consummate the transactions
contemplated hereby, each of the Charities hereby severally makes to AMG, as of
the date hereof and as of the Closing Date, the representations and warranties
set forth in this Section 4 with respect to such Charity. From and after the
Closing, none of the Charities shall have any right of indemnity or contribution
from either of the LLCs (or any other right against either of the LLCs) with
respect to any breach of any representation or warranty hereunder.
4.2 LLC INTERESTS OWNED BY THE CHARITIES. Such Charity owns of
record and beneficially the LLC Interests (including with respect to capital
account balance and profits interest) set forth opposite such Charity's name in
SCHEDULE 1.2 hereto. Such WY LLC Interests are, and when delivered by such
Charity to AMG pursuant to this Agreement will be, duly authorized, validly
issued and free and clear of any and all Claims. The LLC Interests set forth
opposite such Charity's in SCHEDULE 1.2 hereto are the only membership or other
ownership interests of either LLC held by such Charity (as applicable).
4.3 AUTHORITY OF THE CHARITIES. Such Charity has full right,
authority, power and capacity to enter into this Agreement and each agreement,
document and instrument to be executed and delivered by or on behalf of such
Charity pursuant to, or as contemplated by, this Agreement and to carry out the
transactions contemplated hereby and thereby. This Agreement and each agreement,
document and instrument executed and delivered by such Charity pursuant to this
Agreement constitutes, or when executed and delivered will constitute, a valid
and binding obligation of such Charity, enforceable against such Charity in
accordance with its respective terms, except as enforceability may be
restricted, limited or delayed by applicable bankruptcy or similar laws
affecting creditors' rights generally. Such Charity is a non-profit corporation
and has full power and authority to transfer, sell and deliver its WY LLC
Interests to AMG pursuant to this Agreement and, on the terms and subject to the
conditions hereof, at the Closing will transfer, sell and deliver to AMG good
and marketable title to the WY LLC Interests set forth opposite such Charity's
name in SCHEDULE 1.2, free and clear of any Claims. The execution, delivery and
performance of this Agreement and each such other agreement, document and
instrument by such Charity and the consummation of the transactions contemplated
hereby and thereby:
(i) does not and will not violate any provisions of the constituent
documents of such Charity;
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(ii) does not and will not violate any Laws and Regulations, or
require such Charity to obtain any approval, consent or waiver from, or
make any filing with, any person or entity (governmental or otherwise)
that has not been obtained or made prior to the date hereof; and
(iii) does not and will not result in a breach of, constitute a
default under, accelerate any material obligation under, or give rise to a
right of termination of, any material agreement, contract, instrument,
mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which such
Charity is a party or by which the property of such Charity is bound or
affected.
4.4 AGREEMENTS. There are no agreements or arrangements not
contained herein or disclosed in a Schedule hereto to which such Charity is a
party relating to the business of either of the Friess Companies or the LLCs or
to such Charity's rights and obligations as a stockholder, member, director,
officer or employee of either of the Friess Companies or the LLCs.
4.5 FINDER'S FEE. Such Charity has not incurred, become liable for
or otherwise entered into any contract or agreement with respect to any broker's
commission, finder's fee or similar payment relating to or in connection with
the transactions contemplated by this Agreement.
SECTION 5. COVENANTS OF THE FRIESS COMPANIES, THE STOCKHOLDERS AND THE
CHARITIES.
5.1 MAKING OF COVENANTS AND AGREEMENTS. The covenants and agreements
of the Friess Companies and the Stockholders set forth in this Section 5 are
made jointly and severally. The covenants and agreements of the Charities set
forth in this Section 5 are made severally only. The Friess Companies and the
Stockholders, jointly and severally, hereby agree to cause each of the LLCs to
comply with the covenants and agreements contained in this Section 5 applicable
to such LLC, and the Stockholders, jointly and severally, hereby agree to cause
each of the Friess Companies to comply with the covenants and agreements
contained in this Section 5 applicable to such Friess Company. After the
Closing, none of the Friess Companies, the Stockholders or the Charities shall
have any right of indemnity or contribution from either of the LLCs (or any
other right against either of the LLCs) with respect to the breach of any
covenant or agreement hereunder.
5.2 CLIENT CONSENTS.
(a) As soon as practicable after the date hereof, but in any event
on or prior to September 15, 2001, the Friess Companies and the WY LLC shall
send to each Client who is a party to an Advisory Contract as of the date of
this Agreement (other than the Mutual Funds) a letter substantially in the form
of (i) EXHIBIT 5.2A hereto, in the case of each such Client other than the
Clients listed on EXHIBIT 5.2A hereto (the "New Contract Clients"), or (ii)
EXHIBIT 5.2B hereto, in the case of each New Contract Client (each such letter
described in clause (i) or clause
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(ii), an "Initial Client Consent Request Letter") notifying such Client of the
transactions contemplated hereby and the "assignment" (or deemed assignment) of
such Client's Advisory Contract resulting from such transactions, and requesting
(A) the written consent of such Client to such assignment (or deemed assignment)
of its Advisory Contract, in the case of each such Client other than the New
Contract Clients, or (B) that such Client enter into the new Advisory Contract
attached to such letter (which new Advisory Contract shall be substantially
identical (and identical with respect to fees) to the existing Advisory Contract
of such Client, except for the addition of an assignment provision in form and
substance reasonably acceptable to AMG) to become effective as of the Closing
(the "New Advisory Contract" of such Client) and provide its written consent to
such assignment (or deemed assignment) of such New Advisory Contract, in the
case of each New Contract Client (as applicable).
(b) On or prior to October 15, 2001, the Friess Companies and the WY
LLC shall send to (i) each Client (other than the New Contract Clients) who was
sent, but who has not by such date returned, an Initial Client Consent Request
Letter countersigned indicating such Client's consent to the assignment (or
deemed assignment) of such Client's Advisory Contract resulting from the
transactions contemplated hereby, and (ii) each New Contract Client who was
sent, but who has not by such date returned, an Initial Client Consent Request
Letter countersigned indicating such Client's consent to the assignment (or
deemed assignment) of such Client's New Advisory Contract resulting from the
transactions contemplated hereby, together with its New Advisory Contract
executed on behalf of such Client, a second letter in form and substance
reasonably acceptable to AMG (each a "Follow-Up Client Consent Request Letter")
(PROVIDED, HOWEVER, that, following AMG's approval of the form of such Follow-Up
Client Consent Request Letter, AMG shall be deemed to have waived any objections
to the form of such consent letter solely for purposes of satisfaction of the
conditions to Closing set forth in Section 9.3(a) hereof). With respect to any
Advisory Contract (other than Advisory Contracts with Mutual Funds and Advisory
Contracts with New Contract Clients) that does not, by its terms or under
applicable Laws and Regulations, require the "written" or "express" consent of
the Client party thereto to an assignment (or deemed assignment) of such
Advisory Contract, such consent shall be deemed given for purposes of Section
1.2(b) hereof and Section 9.3(a) hereof (notwithstanding the fact that the
Client party to such Advisory Client shall have failed to return an Initial
Client Consent Request Letter or a Follow-Up Client Consent Request Letter
countersigned indicating such Client's consent to the assignment (or deemed
assignment) of such Client's Advisory Contract resulting from the transactions
hereby) forty-five (45) days after the sending to such Client of a Follow-Up
Client Consent Request Letter if such Client has not objected to the assignment
or deemed assignment of its Advisory Contract resulting from the transactions
contemplated hereby and has continued to accept Investment Management Services
from the WY LLC for such forty-five (45) day period. With respect to any
Advisory Contract (other than Advisory Contracts with Mutual Funds and Advisory
Contracts with New Contract Clients) that, by its terms or under applicable Laws
and Regulations, requires the "written" or "express" consent of the Client party
thereto to an assignment (or deemed assignment) of such Advisory Contract, such
consent shall be deemed given for purposes of Section 1.2(b) hereof, Section
1.2(c) hereof and Section 9.3(a) hereof solely in the event that such Client has
returned to the WY LLC an executed Initial Client Consent Request Letter or a
Follow-Up Client Consent Request Letter countersigned indicating such Client's
consent (which consent has been duly obtained by the WY LLC under all applicable
Laws and Regulations) to the assignment
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(or deemed assignment) of such Client's Advisory Contract resulting from the
transactions contemplated hereby (and has not subsequently withdrawn such
consent). With respect to each New Contract Client, such Client shall only be
deemed to have given its consent for purposes of Section 1.2(b) hereof, Section
1.2(c) hereof and Section 9.3(a) hereof in the event that such Client has
returned to the WY LLC an executed Initial Client Consent Request Letter or a
Follow-Up Client Consent Request Letter countersigned indicating such Client's
consent to the assignment (or deemed assignment) of such Client's New Advisory
Contract resulting from the transactions contemplated hereby (and not
subsequently withdrawn such consent), together with its New Advisory Contract
executed on behalf of such Client (which consent has been duly obtained by the
WY LLC, and New Advisory Contract has been duly executed and delivered by such
Client, under all applicable Laws and Regulations).
(c) With respect to each Mutual Fund that is a Client as of the date
of this Agreement, the Friess Companies and the Stockholders shall use their
reasonable best efforts to obtain, in accordance with the applicable
requirements of the Investment Company Act (including without limitation Section
15 thereof), the due consideration and due approval by the board of directors of
such Mutual Fund (its "Mutual Fund Board Approval") of (i) a new advisory
agreement to be in effect with the WY LLC from and after the Closing on terms
substantially identical (and identical with respect to fees) as the Advisory
Contract existing between the applicable Friess Company and such Mutual Fund as
of the Base Date (in the case of any Mutual Fund that was a Client of a Friess
Company as of the Base Date) or between the WY LLC and such Mutual Fund as of
the date of this Agreement (in the case of any Mutual Fund that was not a Client
of one of the Friess Companies as of the Base Date) and, together with a
subadvisory agreement in form and substance reasonably acceptable to AMG to be
in effect from and after the Closing between the WY LLC and the DE LLC with
respect to subadvisory services to be provided by the DE LLC with respect to
such Mutual Fund (ii) the composition of the board of directors or trustees (as
applicable) of such Mutual Fund (other than a Subadvised Fund), effective as of
(and subject to) the Closing, to consist of a total of eight (8) directors,
consisting of (i) Foster Friess and William D'Alonzo, (ii) one (1) continuing
disinterested director who serves on such board as of the date of this Agreement
and (iii) five (5) additional disinterested directors who shall have been
selected by the existing disinterested directors of such Mutual Fund.
To the extent the Mutual Fund Board Approval is obtained for a
Mutual Fund, the Friess Companies and the Stockholders shall use their
reasonable best efforts to obtain the approval of shareholders of such Mutual
Fund (its "Mutual Fund Shareholder Approval") of (i) such new advisory agreement
and subadvisory agreement approved by its board of directors or trustees (as
applicable) of such Mutual Fund and (ii) such board composition approved by its
board of directors or trustees (as applicable), in each case as described in the
immediately preceding paragraph, including by causing the preparation and
mailing to such shareholders a proxy statement describing the transactions
contemplated hereby, such new advisory agreement and such board composition
arrangements, and by holding the shareholder meeting as promptly as practicable.
Each such proxy statement shall be in form and substance satisfactory to AMG.
AMG shall cooperate and assist the Friess Companies in all commercially
reasonable respects in connection with such proxy solicitation and the Mutual
Fund Board Approval (including, without limitation, by providing to the Friess
Companies all information necessary in connection
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with the foregoing with respect to AMG, which information will be accurate and
complete in all material respects).
(d) With respect to any Advisory Contract entered into after the
date of this Agreement and prior to the Closing, the WY LLC shall be the only
one of the Friess Companies or the LLCs that is a party to such Advisory
Contract, and the WY LLC shall notify the Client under such Advisory Contract of
the transactions contemplated hereby and the "assignment" (or deemed assignment)
of such Advisory Contract resulting from such transactions, and shall obtain the
written consent of such Client to such assignment (or deemed assignment) of its
Advisory Contract at the time such Client enters into such Advisory Contract
(the form of such notification and written consent to be substantially identical
to the form set forth in EXHIBIT 5.2 hereto).
(e) Each of the Friess Companies and the Stockholders shall use its
reasonable best efforts to obtain the consents from the Friess Companies' and
the WY LLC's Clients in the manner contemplated by this Section 5.2. Prior to
the Closing, AMG agrees that it will not (and it will not cause any of its
Affiliates to) contact, in writing or otherwise, any Client of the Friess
Companies (or any Person who acts as an adviser or "gatekeeper" for any such
Client) in connection with the transactions contemplated hereby without the
prior approval of the Friess Companies.
5.3 ADVISERS ACT AUTHORIZATIONS.
(a) The Friess Companies shall cause the DE LLC to (i) as promptly
as practicable following the date of this Agreement, prepare and file with the
SEC a Uniform Application for Investment Adviser Registration on Form ADV to
register as an investment adviser under the Advisers Act (the "New ADV") and
(ii) make appropriate additional filings with respect to its investment advisory
status as soon as practicable with all other jurisdictions in which either of
the Friess Companies or the WY LLC has a place of business (within the meaning
of the Advisers Act) and in each other jurisdiction where it is necessary or
desirable for the DE LLC to make such filings in order to conduct its businesses
(including, without limitation, the businesses currently conducted by FAID)
after the DE LLC Asset Transfer and the Closing.
(b) The Friess Companies and the Stockholders shall use their
respective reasonable best efforts to obtain, and to cause the LLCs to obtain,
all authorizations, consents, orders, approvals and Licenses of federal, state
and local regulatory bodies and officials that may be or become necessary for
their respective execution and delivery of, and the performance of their
respective obligations pursuant to, this Agreement and the other agreements,
documents and instruments contemplated hereby, and, with respect to the DE LLC
for it to succeed to the businesses presently being conducted by FAID.
(c) FAID shall cause all applicable employees of FAID to file, as
soon as practicable after the date hereof, such applications for licensing,
registration or qualification of investment adviser representatives (within the
meaning of Rule 203A-3(a) under the Advisers Act) in each jurisdiction where
such applicable investment adviser representative has a place of business
(within the meaning of Rule 203A-3(b) under the Advisers Act) and in each other
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jurisdiction where it is necessary to effect such licensing, registration or
qualification in order to conduct the business of the DE LLC (including, without
limitation, the business currently conducted by FAID) after the Closing and the
DE LLC Asset Transfer, and the Friess Companies and the Stockholders shall use
their respective reasonable best efforts to cause such licenses, registrations
and qualifications to be granted expeditiously.
5.4 AUTHORIZATION FROM OTHERS. The Friess Companies, the
Stockholders and the Charities shall use their respective reasonable best
efforts to obtain, as promptly as practicable following the date of this
Agreement (and in any event prior to Closing), all authorizations, consents,
approvals, permits and Licenses of others required to be obtained by them and/or
by the LLCs to permit the consummation by the Stockholders, the Friess
Companies, the Charities and the LLCs of the transactions contemplated by this
Agreement and the continuation of the business of the Friess Companies and the
LLCs following the Closing (including without limitation all of the approvals,
consents and waivers identified in SCHEDULE 3.5 hereto).
5.5 CONDUCT OF BUSINESS. Between the date of this Agreement and the
Closing, except as described on SCHEDULE 5.5 hereto, without the prior written
consent of AMG:
(a) The Friess Companies and the WY LLC will conduct (and they and
the Stockholders will use their reasonable best efforts to cause the Mutual
Funds (other than the Subadvised Funds) to conduct) their business only in the
ordinary course of business consistent with past practices and in material
compliance with all applicable Laws and Regulations and their constituent
documents, and the DE LLC will comply in all material respects with all
applicable Laws and Regulations and its constituent documents and only take
those actions necessary for the consummation of the transactions contemplated
hereby;
(b) None of the Friess Companies or the LLCs will (i) make (or incur
any obligation to make) any purchase, acquisition, sale, disposition or lease of
any material assets or property (including without limitation the purchase of
securities for its own account, any disposition of LLC Interests or any purchase
of a business as a going concern), or merge or consolidate with any other
Person, other than (A) as specifically provided for in the Asset Transfer
Agreements or the Securities Purchase Agreements, or (B) sales of worn-out or
obsolete property or equipment, and transactions effected in Client portfolios,
in each case in the ordinary course of business consistent with past practices,
or (ii) subject to any Claim, other than to the extent currently existing, any
of its properties or assets (including, without limitation, with respect to the
Friess Companies, their interests in the LLCs), nor permit any of the foregoing
to exist;
(c) None of the Friess Companies or the LLCs will incur any
obligation for borrowed money (contingent or fixed), issue any debt securities
or become obligated as a guarantor or otherwise with respect to the obligations
of others;
(d) Neither of the Friess Companies will make or incur any
obligation to make a change in its Articles of Incorporation, by-laws or other
organizational documents, as applicable, or in its authorized or issued capital
stock, partnership or other equity or other
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ownership interests of any type (including without limitation through any
issuances thereof), and the LLCs will not make or incur any obligation to make
any change in the Existing LLC Agreement (other than the restatement into the
Restated LLC Agreement as contemplated hereby) or the authorized or issued
ownership interests in either of the LLCs (including without limitation through
any issuances thereof), other than as provided by the Securities Purchase
Agreements;
(e) None of the Friess Companies or the LLCs will declare, set aside
or pay any dividend or distribution (whether in cash or in property), make (or
incur an obligation to make) any other distribution in respect of its capital
stock or interests or make (or incur an obligation to make) any direct or
indirect redemption, purchase or other acquisition of its stock or interests (or
any other equity or ownership interest therein), except that the Friess
Companies may make distributions of cash and/or receivables prior to the Closing
subject to their ability to comply with the conditions to Closing set forth in
Section 9.10 (and the WY LLC may make distributions of cash and/or receivables
to the Friess Companies in connection therewith);
(f) None of the Friess Companies or the LLCs will (i) make any
change in the compensation or fringe benefits payable or to become payable to,
or grant any termination or severance pay to, any of the Friess Companies' or
the WY LLC's present or former directors, officers, members, employees, agents
or independent contractors, except changes in the ordinary course consistent
with past practice, PROVIDED that the foregoing shall not prohibit the payment
of bonus compensation in a manner consistent with past practices, subject to the
Friess Companies ability to comply with the conditions to Closing set forth in
Section 9.10, (ii) enter into any collective bargaining agreement, equity,
option, profit sharing, welfare, retirement, or other similar arrangement, or
any employment contract (other than any "at will" employment contract which
would not require the consent of AMG or any of its subsidiaries under either of
the Restated LLC Agreements if entered into after the Closing), (iii) enter
into, amend or otherwise modify any contract, agreement, arrangement or
understanding with the Stockholders, members of their Immediate Families or
their respective Affiliates or (iv) terminate (or take any action, or omit to
take any action, which would reasonably be expected to lead to the termination
of) the employment of any employee who is a party to an Employment Agreement or
Non-Solicitation Agreement;
(g) Neither of the Friess Companies or the LLCs will prepay any
loans or otherwise satisfy material payment obligations before they become due,
waive or cancel any rights of material value or terminate any material
Contracts;
(h) Neither of the Friess Companies or the LLCs will make any change
in its borrowing or banking arrangements and the LLCs will not enter into any
borrowing arrangements;
(i) Each of the Friess Companies and the WY LLC will use its
reasonable best efforts to prevent any change with respect to its management and
supervisory personnel, and will not hire or terminate any member thereof;
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(j) Each of the Friess Companies and the WY LLC will have in effect
and maintain at all times all insurance of the kind, in the amount and with the
insurers set forth in SCHEDULE 3.19 hereto or substantially equivalent insurance
with any substitute insurers approved in writing by AMG, and as of the Closing,
the LLCs will have in effect, and thereafter will maintain at all times, all
insurance of the kind, in the amount and with the insurers set forth in SCHEDULE
3.19 hereto or substantially equivalent insurance with any substitute insurers
approved in writing by AMG;
(k) None of the Friess Companies or the LLCs will (i) settle or
compromise any material litigation, arbitration, investigation, audit or other
proceeding or (ii) write up, write down or write off the book value of any
assets in the aggregate in excess of $100,000 (except for depreciation and
amortization in accordance with GAAP consistently applied);
(l) None of the Friess Companies or the LLCs will terminate its
existence or voluntarily file for or otherwise commence proceedings with respect
to bankruptcy, reorganization, receivership or similar status;
(m) None of the Friess Companies or the LLCs will (i) make or change
any Tax election, waive or extend the statute of limitations in respect of
Taxes, amend any Tax Return, enter into any closing agreement with respect to
any Tax, settle any Tax claim or assessment or surrender any right to a claim
for a Tax refund, in each case except to the extent any of the foregoing actions
described in this clause 5.5(m)(i) (A) relate solely to a Tax period ending on
or prior to the Closing and (B) would not have an adverse effect (economic or
otherwise) on any Person who will become a member of the WY LLC or the DE LLC at
the Closing or at any time thereafter or otherwise affect Tax periods commencing
on or after the Closing, or (ii) change any method or principle of accounting in
a manner inconsistent with past practice of the Friess Companies, or change
regular independent accountants;
(n) None of the Friess Companies or the LLCs will make advertising,
marketing or similar types of expenditures other than in the ordinary course of
business and in amounts consistent with the practices of the Friess Companies
during the twelve-month period immediately preceding the date of this Agreement
(and the Friess Companies and the Stockholders will use their reasonable best
efforts to prevent any Mutual Fund (other than a Subadvised Fund) from making
such expenditures);
(o) None of the Friess Companies, the LLCs or the Stockholders will
take any action that would reasonably be expected to result in any of the
representations and warranties set forth in Section 3 or Section 4 becoming
false or inaccurate in any material respect; and
(p) None of the Friess Companies, the LLCs or the Stockholders will
agree in writing or otherwise to take any action inconsistent with the
foregoing.
5.6 FINANCIAL STATEMENTS. Commencing with the month ending August
31, 2001, the Friess Companies will furnish AMG, within twenty (20) business
days after each month end for each month ending more than twenty (20) business
days prior to the Closing, with (a) unaudited monthly balance sheets and
statements of income and retained earnings of FAID
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and the WY LLC, certified by the chief financial officer of such Person, which
financial statements shall be prepared in accordance with generally accepted
accounting principles applied consistently using the accrual method of
accounting (except that they need not include footnotes), shall present fairly
in all material respects the financial condition of FAID or the WY LLC (as
applicable) at the dates of said statements and the results of its operations
for the periods covered thereby, (b) complete and correct information regarding
the aggregate assets under management by FAID and the WY LLC as of such month
end, and (c) such other correct information regarding FAID's and the WY LLC's
assets under management as of such month end, broken out by category of Client,
asset class and/or similar types of information, each to the extent such
information already is prepared by either of the Friess Companies or the WY LLC
in the ordinary course for their internal use and/or for reporting to the
Stockholders.
5.7 PRESERVATION OF BUSINESS AND ASSETS. Until the Closing, each of
the Friess Companies and the Stockholders shall use its commercially reasonable
efforts to: (a) preserve the current business of the Friess Companies and the WY
LLC, (b) maintain the present Clients of the Friess Companies and the WY LLC, in
each case, on terms that are at least as favorable as the terms of the
agreement(s) between a Friess Company or the WY LLC, as the case may be, and the
relevant Client as in effect on the date hereof, (c) preserve the goodwill of
the Friess Companies and the WY LLC, and (d) preserve any Licenses required for,
or useful in connection with, the business of the Friess Companies and/or the WY
LLC (including without limitation all investment adviser and investment adviser
representative registrations).
5.8 NOTICE RIGHTS AND ACCESS. Until the Closing, the Friess
Companies shall deliver to AMG (contemporaneously with the delivery thereof to
the Stockholders and/or the directors of the Friess Companies and/or the
Directors and/or members of the LLCs, as applicable) all notices and information
furnished by either of the Friess Companies or the LLCs to the Stockholders
and/or directors of the Friess Companies and/or the Directors and/or members of
the LLCs, as well as copies of the minutes of any meetings of the Stockholders,
the directors of either of the Friess Companies or the members or Directors of
either of the LLCs, and a description of any actions taken by such persons at
any such meeting. The Friess Companies shall afford (and shall cause the WY LLC
to afford) to AMG and its representatives and agents reasonable access, during
normal business hours and with reasonable notice, to the properties and records
of the Friess Companies and the WY LLC in order that AMG may have full
opportunity to make such investigation as it shall desire for purposes
consistent with this Agreement.
5.9 NOTICE OF DEFAULT. Promptly upon the occurrence of, or promptly
upon a Friess Company, a LLC, a Stockholder or a Charity becoming aware of the
threatened occurrence of, any event which would cause or constitute a breach or
default, or would have caused or constituted a breach or default had such event
occurred or been known to such Friess Company, LLC, Stockholder or Charity prior
to the date hereof, of any of the representations, warranties or covenants of
the Friess Companies, the Charities or the Stockholders contained in or referred
to in this Agreement or in any Schedule or Exhibit referred to in this
Agreement, the Friess Companies shall give written notice thereof to AMG in
reasonable detail, and the Friess Companies, the Stockholders and the Charities
shall use their reasonable best efforts to prevent or promptly remedy the same.
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5.10 CONSUMMATION OF AGREEMENT. The Friess Companies, each of the
Stockholders and, with respect to clause (a) of this Section 5.10, each of the
Charities shall use its reasonable best efforts (except to the extent a
different standard is expressly provided for under another provision of this
Agreement with respect to particular obligations) to (a) perform and fulfill all
conditions and obligations to be performed and fulfilled by each of them under
this Agreement and (b) cause all conditions and obligations of the Management
Owners to be performed and fulfilled by such Management Owners under the
Management Owners Purchase Agreement, to the end that the transactions
contemplated by this Agreement and the Management Owners Purchase Agreement
shall be fully carried out.
5.11 COOPERATION OF THE FRIESS COMPANIES, THE STOCKHOLDERS AND THE
CHARITIES. Each of the Friess Companies, the Stockholders and the Charities
shall cooperate with all reasonable requests of AMG and AMG's counsel and
auditors in connection with the consummation of the transactions contemplated
hereby and the making of any filings required in connection therewith, and all
filings made and consents obtained by the Friess Companies and/or the LLCs in
connection with the transactions contemplated hereby shall be in form and
substance reasonably satisfactory to AMG (except to the extent another standard
is expressly provided for herein with respect to particular filings or
consents). In addition, the Stockholders, the Friess Companies and the Charities
shall cooperate fully, as and to the extent requested by AMG or AMG's counsel or
auditors, in connection with any litigation or other proceedings arising in
connection with the transactions contemplated hereby (except to the extent
otherwise specifically addressed in Section 6 hereof with respect to Tax
matters).
5.12 NO SOLICITATION OF OTHER OFFERS. Until the earlier of the
termination of this Agreement pursuant to Section 11.1 or the occurrence of the
Closing, none of the Friess Companies, the LLCs, the Stockholders, the
Charities, nor any of their respective Affiliates or their respective directors,
officers, employees, representatives or agents, shall, directly or indirectly,
solicit, encourage, assist, initiate discussions or engage in negotiations with,
provide any information to, or enter into any agreement or transaction with, any
Person, other than AMG, relating to the possible acquisition of FAI Shares or
other capital stock of FAI, FAID Shares or other capital stock of FAID, any
ownership interests in either of the LLCs, or any of their respective assets,
except for the sale of assets by the Friess Companies and the LLCs in the
ordinary course of business consistent with past practices and the terms of this
Agreement or transfers of FAI Shares or FAID Shares among the Stockholders;
PROVIDED, HOWEVER, that the Stockholders shall be permitted to transfer FAI
Shares and/or FAID Shares prior to the Closing to any Person to whom such shares
would be permitted to be transferred following the Closing pursuant to Section
5.1(c) of the applicable Restated LLC Agreement (subject to the restrictions on
transfer set forth in Article V of such Restated LLC Agreement that would be
applicable to such a post-Closing transfer).
5.13 CONFIDENTIALITY. Each of the Friess Companies, the Stockholders
and the Charities agree that, unless and until the Closing has been consummated,
each of the Friess Companies, the LLCs, the Stockholders, the Charities and
their respective Affiliates, shareholders, directors, officers, employees,
agents and representatives will hold in strict confidence, and will not use, any
confidential or proprietary data or information obtained from AMG with respect
to its business or financial condition except for the purpose of evaluating,
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negotiating and completing the transaction contemplated hereby. Information
generally known in AMG's industry or which has been disclosed to the Friess
Companies, the LLCs, the Stockholders or the Charities by third parties which
have a right to do so shall not be deemed confidential or proprietary
information for purposes of this Agreement. If the transactions contemplated by
this Agreement are not consummated, the Friess Companies, the LLCs, the
Stockholders and the Charities will return, and cause their respective
Affiliates, directors, officers, employees, agents and representatives to
return, to AMG (or certify that they have destroyed) all copies of such data and
information, including but not limited to financial information, customer lists,
business and corporate records, worksheets, test reports, tax returns, lists,
memoranda, and other documents prepared by or made available by AMG to the
Friess Companies, the LLCs, the Stockholders and/or the Charities (and/or to
their respective Affiliates, directors, officers, employees, agents and
representatives) in connection with the transactions contemplated hereby.
5.14 POLICIES AND PROCEDURES. The Friess Companies and the
Stockholders shall (and shall cause the LLCs to) cooperate with and assist in
such compliance audits and regulatory reviews as may reasonably be requested by
AMG prior to the Closing (at the expense of AMG and, to the extent agreed to by
the Friess Companies, the Friess Companies).
5.15 SUBSIDIARIES; INVESTMENTS IN OTHER PERSONS. Between the date of
this Agreement and the Closing, none of the Friess Companies or the LLCs will
take any action to acquire, form or otherwise establish any subsidiary or new
Affiliate of either of the Friess Companies or the LLCs, or make any investment
in, or otherwise conduct business through, any other Person.
5.16 LLC INTERESTS, FAI SHARES AND FAID SHARES; OTHER AGREEMENTS.
Between the date of this Agreement and the Closing, none of the Friess
Companies, the Charities or the Stockholders will sell, assign, pledge, subject
to a Claim or otherwise transfer or restrict such Person's interests in the
LLCs, any LLC Interests, any FAI Shares, any FAID Shares or any other interests
in the Friess Companies, in any such case without the prior written consent of
AMG; PROVIDED, HOWEVER, that the Stockholders shall be permitted to transfer FAI
Shares and/or FAID Shares prior to the Closing to any Person to whom such shares
would be permitted to be transferred following the Closing pursuant to Section
5.1(c) of the applicable Restated LLC Agreement (subject to the restrictions on
transfer set forth in Article V of such Restated LLC Agreement that would be
applicable to such a post-Closing transfer). Effective as of the Closing, the
LLCs shall issue the interests and rights therein set forth in the Restated LLC
Agreements to the Members (as defined in the Restated LLC Agreements) and shall
take such actions as may be reasonably directed by AMG in connection therewith.
Without the prior written consent of AMG or except as set forth on SCHEDULE
5.16, none of the Friess Companies, the Charities or the Stockholders shall
enter into any side letters or other agreements in connection with this
Agreement or the Management Owner Purchase Agreement.
5.17 EMPLOYEE PROGRAMS. Between the date of this Agreement and the
Closing, none of the Friess Companies or the LLCs shall (i) maintain any
Employee Program other than the Employee Programs listed on SCHEDULE 3.24, (but
they shall maintain those
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Employee Programs listed on SCHEDULE 3.24 consistent with past practice) or (ii)
amend or terminate any such Employee Program.
5.18 FOREIGN QUALIFICATIONS. FAID shall cause the DE LLC to qualify
to do business as a foreign limited liability company under the laws of each
jurisdiction where FAID is, as of the date of this Agreement, qualified to do
business as a foreign corporation and under the laws of each jurisdiction in
which the nature of the business it will conduct after giving effect to the DE
LLC Asset Transfer, or the ownership or leasing of the properties it will
receive in the DE LLC Asset Transfer, requires such qualification.
5.19 SECTION 15 OF THE INVESTMENT COMPANY ACT. The Friess Companies
shall use their reasonable best efforts to assure, prior to the Closing, the
satisfaction of the conditions set forth in Section 15(f) of the Investment
Company Act with respect to each Mutual Fund (other than a Subadvised Fund).
5.20 LETTER AGREEMENT. The obligations and liabilities of the WY LLC
pursuant to the Letter Agreement, dated December 20, 2000, between Jon Fenn and
the WY LLC shall be paid and discharged in their entirety at or prior to the
Closing (to the extent not previously paid in cash) in accordance with GAAP for
purposes of the conditions set forth in Section 9.10 hereof.
SECTION 6. COVENANTS OF THE FRIESS COMPANIES, THE STOCKHOLDERS AND AMG WITH
RESPECT TO CERTAIN TAX MATTERS.
6.1 SECTION 197(f)(9). The parties hereto will use their respective
reasonable efforts to amend the structure of the transactions contemplated
hereby if necessary in order to avoid the application of the anti-churning rules
of Section 197(f)(9) of the Code (PROVIDED that no party shall be required to
agree to any changes that could materially adversely affect such party as
determined in its sole discretion).
6.2 TAX PERIODS ENDING ON OR BEFORE THE DATE OF THE CLOSING.
Notwithstanding anything to the contrary contained herein or in the Existing LLC
Agreements or the Restated LLC Agreements, FAI and FAID shall prepare and file,
or cause to be prepared and filed, on a timely basis all Tax Returns required to
be filed by either of the LLCs with respect to taxable periods ending on or
before the Closing Date (each, a "Pre-Closing Tax Period"), which income Tax
Returns for the taxable period ending on the Closing Date shall include an
election pursuant to Section 754 of the Code and any corresponding provisions of
state or local law. FAI and FAID shall permit AMG to review and comment upon, at
least twenty (20) days prior to the filing date, each Tax Return to be filed by
either of the LLCs (other than routine withholding and similar Tax Returns), and
shall incorporate any and all reasonable comments of AMG with regard to any item
that would affect the Tax liability of either of the LLCs or any Person who will
become a member of either of the LLCs at or following the Closing. FAI and FAID
shall furnish AMG with copies of all U.S. federal and state income Tax Returns
of the Friess Companies for the taxable year ending on the Closing Date no later
than ten days prior to the last
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date, including extensions, on which such Tax Returns are required to be filed
with the relevant Taxing Authority. Notwithstanding anything to the contrary
contained herein or in the Restated LLC Agreements, neither LLC shall file any
Tax Return relating to a Pre-Closing Tax Period without the prior written
consent of FAI, which consent shall not be unreasonably withheld. Expenses
incurred in connection with such filings shall be borne by the LLCs out of their
respective Operating Allocations (as defined in each of the respective LLC
Agreements).
6.3 COOPERATION ON TAX MATTERS. AMG shall promptly notify FAI and
FAID in writing of the commencement of any claim, audit, examination, or other
proposed change or adjustment of which it or any of its Affiliates has been
informed of by any Taxing Authority relating to Tax Returns of either of the
LLCs for any Pre-Closing Tax Period (a "Tax Audit"). Such notice shall describe
the asserted Tax Audit in reasonable detail and shall include copies of any
notices and other documents received from any taxing authority in respect
thereof. FAI and/or FAID may elect to control and settle any Tax Audit
(including any subsequent court proceeding) at its own expense (including
without limitation with respect to the payment of any Taxes resulting therefrom)
to the extent it relates to a Pre-Closing Tax Period. AMG and each of the LLCs
shall cooperate in reasonable respects with FAI and FAID in the defense of any
such Tax Audit or proceeding. AMG, FAI, FAID and each of the Stockholders and
Charities shall: (i) cooperate in the preparation of any Tax Returns which the
others are responsible for preparing and filing, (ii) cooperate fully in
preparing for any audits of, or disputes with taxing authorities regarding, any
Tax liability of either of the LLCs, FAI, FAID or the Stockholders relating
thereto with respect to Pre-Closing Tax Periods, (iii) make available to the
others and to any taxing authority, as reasonably requested, all information,
records and documents relating to any Tax liability of either of the LLCs, FAI,
FAID or any of the Stockholders relating thereto with respect to Pre-Closing Tax
Periods, (iv) provide timely written notice to AMG, FAI and FAID of any written
notice received from any Taxing Authority in connection with any audit or
information request with respect to any Tax liability of either of the LLCs,
FAI, FAID or any Stockholder or Charity relating thereto with respect to
Pre-Closing Tax Periods, and (v) furnish AMG, FAI and FAID with copies of all
correspondence received from any Taxing Authority in connection with any audit
or information request with respect to any tax liability of any of the LLCs,
FAI, FAID or the Stockholders or Charities relating thereto with respect to
Pre-Closing Tax Periods. In addition, AMG, FAI, FAID and each of the
Stockholders and Charities agrees (A) to retain all books and records in its
possession with respect to Tax matters pertinent to the Friess Companies and the
LLCs relating to any taxable period beginning before the date of the Closing
until the expiration of the statute of limitations (and, to the extent notified
by AMG, FAI, FAID or any of the Stockholders or Charities, any extensions
thereof) of the respective taxable periods, and to abide by all record retention
agreements entered into with any Taxing Authority, and (B) to give FAI, FAID or
AMG (as applicable) reasonable written notice prior to transferring, destroying
or discarding any such books and records and, if any of the other parties so
requests, AMG, FAI, FAID or any of the Stockholders or Charities, as the case
may be, shall allow the other parties to take possession of such books and
records.
6.4 OTHER TAX AND ACCOUNTING MATTERS. The parties hereto covenant
and agree that neither the LLCs nor any other party hereto shall take a Tax
deduction for any amount (as wages, compensation or otherwise) upon the issuance
of new LLC Interests to the Non-Manager Members (as such term is defined in the
Restated LLC Agreements) at the Closing. The parties
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hereto covenant and agree that, at Closing, the books of the LLCs will not
include any amortizable intangible assets for purposes of allocations to be made
post-Closing under Article IV of the Restated LLC Agreements that arise from the
creation or capitalization of the LLCs (including without limitation the Asset
Transfers) or from any pre-Closing book-ups.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF AMG.
7.1 MAKING OF REPRESENTATIONS AND WARRANTIES. As a material
inducement to the Friess Companies, the Charities and the Stockholders to enter
into this Agreement and consummate the transactions contemplated hereby, AMG
hereby makes to each of the Friess Companies, the Charities and the
Stockholders, as of the date hereof and as of the Closing Date, the
representations and warranties contained in this Section 7.
7.2 ORGANIZATION. Each of AMG and FA (WY) Acquisition is a
corporation, and FA (DE) Acquisition is a limited liability company, in each
case duly organized, validly existing and in good standing under the laws of the
State of Delaware with full power and authority to own or lease its assets and
other properties and to conduct its business in the manner and in the places
where such assets and other properties are owned or leased or such business is
conducted by it.
7.3 AUTHORITY. AMG has full right, authority and power to enter into
this Agreement and each agreement, document and instrument to be executed and
delivered by AMG pursuant to or as contemplated by, this Agreement and to carry
out the transactions contemplated hereby and thereby. The execution, delivery
and performance by AMG of this Agreement and each such other agreement, document
and instrument have been duly authorized by all necessary action of AMG and no
other action on the part of AMG is required in connection therewith. This
Agreement and each other agreement, document and instrument executed and
delivered by AMG pursuant to this Agreement constitute, or when executed and
delivered will constitute, valid and binding obligations of AMG enforceable in
accordance with their terms, except as enforceability may be restricted, limited
or delayed by applicable bankruptcy or similar laws affecting creditors' rights
generally. The execution, delivery and performance by AMG of this Agreement and
each such agreement, document and instrument and the consummation of the
transactions contemplated hereby and thereby:
(i) does not and will not violate any provision of the Certificate
of Incorporation or by-laws of AMG, each as amended to the date hereof;
(ii) does not and will not violate any Laws and Regulations
applicable to AMG or require AMG to obtain any approval, consent or waiver
of, or make any filing with, any person or entity (governmental or
otherwise) which has not been obtained or made (other than any filings
required to be made pursuant to the Exchange Act or with any stock
exchange in connection with the transactions contemplated hereby); and
(iii) does not and will not result in a breach of, constitute a
default under, accelerate any obligation under, or give rise to a right of
termination of any agreement,
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contract, instrument, mortgage, lien, lease, permit, authorization, order,
writ, judgment, injunction, decree, determination or arbitration award to
which AMG is a party and which is material to the business and financial
condition of AMG and its affiliated organizations on a consolidated basis.
7.4 LITIGATION. There is no litigation or other action, suit or
proceeding pending or, to the knowledge of AMG, threatened against AMG, FA (WY)
Acquisition or FA (DE) Acquisition or, to AMG's knowledge, investigations, at
law or in equity, by or before any federal, state, municipal or other
governmental department, commission, bureau, board, agency or instrumentality,
domestic or foreign (including, without limitation, any voluntary or involuntary
proceedings under the Bankruptcy Code or any action, suit, proceeding or
investigation under any Federal or state securities law, rule or regulation) in
which AMG, FA (WY) Acquisition, FA (DE) Acquisition or any director, officer or
employee of any of them is engaged or with which any of them is threatened which
would reasonably be expected (individually or in the aggregate) to prevent the
consummation by AMG of the transactions contemplated by this Agreement or the
other agreements, documents and instruments contemplated hereby, or which seeks
damages from any such Person in connection with the transactions contemplated
hereby or thereby which would reasonably be expected (individually or in the
aggregate) to have a Material Adverse Effect on AMG.
7.5 ACQUISITION FOR INVESTMENT. Each of AMG, FA (WY) Acquisition and
FA (DE) Acquisition has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of its purchase of
the LLC Interests. AMG represents and warrants that each of AMG, FA (WY)
Acquisition and FA (DE) Acquisition is an "accredited investor" within the
meaning of Rule 501 under the Securities Act. AMG confirms that the
Stockholders, the Charities and the Friess Companies have made available to each
of AMG, FA (WY) Acquisition and FA (DE) Acquisition the opportunity to ask
questions of the Stockholders, the Charities and the Friess Companies and their
officers and employees, and to acquire additional information about the business
and financial condition of the Friess Companies and the LLCs. Each of AMG, FA
(WY) Acquisition and FA (DE) Acquisition is acquiring the LLC Interests for
investment and not with a view toward or for sale in connection with any
distribution thereof in violation of any federal or state securities or "blue
sky" law, or with any present intention of distributing or selling such shares
in violation of any federal or state securities or "blue sky" law. Each of AMG,
FA (WY) Acquisition and FA (DE) Acquisition understands and agrees that the LLC
Interests may not be sold, transferred, offered for sale, pledged, hypothecated
or otherwise disposed of without registration under the Securities Act, except
pursuant to an exemption from such registration available under the Securities
Act, and without compliance with state, local and foreign securities laws, in
each case, to the extent applicable.
7.6 DISCLOSURE. All written information provided by AMG specifically
for inclusion in consent solicitation materials prepared for use by the Friess
Companies in connection with the transactions contemplated by this Agreement at
the time such information is provided will be accurate and complete in all
material respects.
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7.7 FINDER'S FEE. None of AMG, FA (WY) Acquisition or FA (DE)
Acquisition has incurred, become liable for or otherwise entered into any
contract or agreement with respect to any broker's commission, finder's fee or
similar payment relating to or in connection with the transactions contemplated
by this Agreement.
SECTION 8. COVENANTS OF AMG.
8.1 MAKING OF COVENANTS AND AGREEMENT. AMG hereby makes the
covenants and agreements set forth in this Section 8.
8.2 COOPERATION OF AMG. AMG shall cooperate with all reasonable
requests of the Friess Companies and their counsel in connection with the Friess
Companies', the Stockholders' and the Charities' compliance with their covenants
contained in Sections 5.2, 5.3 and 5.4 hereof. In addition, AMG shall cooperate
fully, as and to the extent requested by the Friess Companies or their counsel
or auditors, in connection with any litigation or other proceedings arising in
connection with the transactions contemplated hereby (except to the extent a
different standard is set forth in Section 6 hereof with respect to Tax
matters).
8.3 NOTICE OF DEFAULT. Promptly upon the occurrence of, or promptly
upon AMG becoming aware of the impending or threatened occurrence of, any event
which would cause or constitute a breach or default, or would have caused or
constituted a breach or default had such event occurred or been known to AMG
prior to the date hereof, of any of the representations, warranties or covenants
of AMG contained in or referred to in this Agreement or in any Schedule or
Exhibit referred to in this Agreement, AMG shall give written notice thereof to
the Friess Companies.
8.4 CONSUMMATION OF AGREEMENT. AMG shall use its reasonable best
efforts to perform and fulfill all conditions and obligations to be performed
and fulfilled by it under this Agreement and the Management Owners Purchase
Agreement, to the end that the transactions contemplated by this Agreement and
the Management Owners Purchase Agreement shall be fully carried out.
8.5 SECTION 15 OF THE INVESTMENT COMPANY ACT. Each of AMG, FAI, FAID
and the Stockholders agrees to use its commercially reasonable efforts not to
cause any Mutual Fund (other than a Subadvised Fund) to take any action that
would cause the following to be untrue regarding Section 15(f) of the Investment
Company Act with respect to any Mutual Fund (other than a Subadvised Fund): (i)
For a period of not less than three years following the Closing, no more than
twenty-five percent (25%) of the members of the board of directors of such
Mutual Fund shall be "interested persons" (as defined in the Investment Company
Act) of AMG, FAI, FAID or either LLC, and (ii) for a period of not less than two
years following the Closing, neither LLC shall have any express or implied
understanding, arrangement or intention to impose an "unfair burden" (as defined
in the Investment Company Act) on such Mutual Fund as a result of the
transactions contemplated herein.
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SECTION 9. CONDITIONS TO THE OBLIGATIONS OF AMG.
The obligation of AMG to consummate the transactions contemplated by
this Agreement is subject to the fulfillment (or waiver by AMG), prior to or at
the Closing, of the following conditions precedent:
9.1 LITIGATION; NO OPPOSITION. No judgment, injunction, order or
decree enjoining or prohibiting any of AMG, the Friess Companies, the LLCs, the
Charities, the Stockholders, the Management Owners or other parties to this
Agreement or any of the agreements, documents and instruments contemplated
hereby from consummating the transactions contemplated hereby or thereby shall
have been entered, and no suit, action or proceeding shall have been initiated
or threatened by any governmental body at any time prior to the Closing seeking
to restrain or prohibit, or seeking damages or other relief in connection with,
the execution and delivery of this Agreement or any of the agreements, documents
and instruments contemplated hereby, or the consummation of the transactions
contemplated hereby or thereby, or which could reasonably be expected to have a
Material Adverse Effect on the Friess Companies, the LLCs or AMG.
9.2 REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each of the representations and warranties of FAI, FAID, FF, the
Charities and each of the Stockholders contained in this Agreement, in any
Schedule or Exhibit attached hereto, or in any other agreement, document,
instrument or certificate contemplated hereby or otherwise made in writing by
any of them or made by any person authorized by them to make representations on
their behalf, in each case shall be true and complete in all material respects
(except for such representations and warranties that are qualified by their
terms as to materiality or Material Adverse Effect, which representations and
warranties as so qualified shall be true in all respects) as of the date of this
Agreement and at and as of the Closing; PROVIDED, HOWEVER, that (i) the accuracy
of any representation or warranty that by its terms speaks only as of a
specified date shall be determined solely as of such date, and (ii) the
representations in Section 3.7 shall also be made with respect to assets under
management and Advisory Contracts in effect as of a date which is no more than
three (3) business days prior to the Closing (the "Calculation Date"), as
reflected in an UPDATED SCHEDULE 3.7 containing all of the information required
by Section 3.7(a) (set forth as of the Calculation Date instead of as of the
Base Date) and delivered to AMG at least two business days prior to the Closing.
(b) Each of the agreements to be performed by FAI, FAID, each of the
Charities and each of the Stockholders hereunder and under the other agreements,
documents and instruments contemplated hereby at or prior to the Closing shall
have been duly performed in all material respects.
(c) FAI, FAID, FF, the Charities and each of the Stockholders shall
have furnished AMG with a certificate or certificates dated as of the date of
the Closing with respect to each of the foregoing (including without limitation
the UPDATED SCHEDULE 3.7 to be delivered prior to the Closing).
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9.3 CLIENT CONSENTS. (a) Clients of the WY LLC whose Advisory
Contracts provide for the payment to the WY LLC (based on the Contract Value of
each such Advisory Contract) of fees constituting at least ninety percent (90%)
of the Base Fees shall have provided their Consents with respect to the
transactions contemplated hereby, and Advisory Contracts which (based on their
Contract Values) represent at least ninety percent (90%) of the Base Fees shall
survive the Closing and then be in full force and effect with the WY LLC;
PROVIDED that Advisory Contracts with Related Clients (or with Mutual Funds or
other collective investment vehicles in which Related Clients are investors, to
the extent of the investments by such Related Clients) shall not count towards
the satisfaction of this condition to the extent their aggregate Contract Values
exceeds two hundred and seventy five million dollars ($275,000,000).
For purposes of this Agreement:
(i) "Base Fees" shall be equal to $72,492,930.44.
(ii) "Consent" shall mean:
(A) With respect to a Client whose Advisory Contract is in
effect as of the date of this Agreement and by its terms or under
applicable Laws and Regulations terminates upon the consummation of
the transactions contemplated hereby (including without limitation
each Advisory Contract with a Mutual Fund that is in effect as of
the date of this Agreement), that the WY LLC shall have entered into
a new Advisory Contract with such Client on substantially identical
terms (and identical with respect to fees) as the Advisory Contract
existing (I) between one of the Friess Companies and such Client as
of the Base Date, in the case of any Client that was a Client of the
Friess Companies as of the Base Date, or (II) between the WY LLC and
such Client as of the date of this Agreement, in the case of any
Client of the WY LLC that was not a Client of the Friess Companies
as of the Base Date, which new Advisory Contract has been duly
authorized and approved under all applicable Laws and Regulations
(including without limitation with respect to each Mutual Fund, by
its Mutual Fund Board Approval and Mutual Fund Shareholder Approval
having been obtained and remaining in full force and effect) and is
effective after giving effect to the Closing;
(B) With respect to a Client whose Advisory Contract is in
effect as of the date of this Agreement and does not (by its terms
or under applicable Laws and Regulations) terminate upon the
consummation of the transactions contemplated hereby, that the WY
LLC shall have (I) obtained the requisite consent of such Client
(other than a New Contract Client) to the continuation of such
Advisory Contract following the consummation of the transactions
contemplated hereby in accordance with Section 5.2 (which consent
has been duly obtained by the WY LLC under all applicable Laws and
Regulations), and such Advisory Contract will remain in full force
and effect between the WY LLC and such Client (and will not have
been breached) after giving effect to the Closing, or (II) obtained
the requisite consent of such New Contract Client (in the case of
any
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New Contract Client) to the continuation of its New Advisory
Contract following the consummation of the transactions contemplated
hereby in accordance with Section 5.2, together with its New
Advisory Contract executed on behalf of such New Contract Client
(which consent has been duly obtained by the WY LLC, and New
Advisory Contract has been duly executed and delivered by such
Client, under all applicable Laws and Regulations), and such New
Advisory Contract will remain in full force and effect between the
WY LLC and such New Contract Client (and will not have been breached
by the WY LLC) immediately after giving effect to the Closing; and
(C) With respect to a Client whose Advisory Contract is
entered into after the date of this Agreement, that the WY LLC shall
have obtained the written consent of such Client to the continuation
of such Advisory Contract following the consummation of the
transactions contemplated hereby in accordance with Section 5.2
(which consent has been duly obtained by the WY LLC under all
applicable Laws and Regulations), and such Advisory Contract will
remain in full force and effect between the WY LLC and such Client
(and will not have been breached) after giving effect to the
Closing.
Notwithstanding the foregoing, (i) no Client of the WY LLC shall be
deemed to have given its Consent for any purpose under this Agreement if
such Client has (A) expressed an intent to terminate its investment
relationship with the WY LLC (and not subsequently withdrawn such
statement of intention prior to the Closing or the Closing True-Up Date,
as applicable) or (B) otherwise objected to the consummation of the
transactions contemplated hereby (and not subsequently withdrawn such
objection prior to the Closing or the Closing True-Up Date, as
applicable)), and (ii) no Client of the WY LLC shall be deemed to have
given its Consent, solely for purposes of Section 1.2(b) hereof and the
conditions set forth in this Section 9.3, if following the date of this
Agreement and prior to the Closing, such Client either (A) reduced, or
expressed an intent to reduce, its assets under management by the WY LLC
by more than 15% (such 15% to be measured from the amount of assets under
management by the WY LLC pursuant to such Advisory Contract on the Base
Date (in the case of any Advisory Contract that was in effect as of the
Base Date) or on the date such Advisory Contract was entered into by the
WY LLC (in the case of any Advisory Contract that became effective after
the Base Date) or (B) reduced, or expressed an intent to reduce, the fee
schedule in effect under such Advisory Contract by more than 15% (such 15%
to be measured from the fee schedule in effect on the Base Date (in the
case of any Advisory Contract that was in effect as of the Base Date) or
on the date such Advisory Contract was entered into by the WY LLC (in the
case of any Advisory Contract that became effective after the Base Date).
In the event that any of the Friess Companies, the LLCs, the
Stockholders or any of their respective directors, officers, employees,
representatives or agents, has agreed or entered into an understanding to
cap, reduce, waive, reimburse or otherwise modify the fees payable by a
Client with respect to one or more of its Advisory Contracts in connection
with obtaining such Client's Consent to the transactions contemplated
hereby,
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AMG and the Friess Companies shall negotiate in good faith in an attempt
to agree in writing (which agreement, if any, shall be binding upon all of
the parties hereto) to a reasonable adjustment to the Contract Value of
such Advisory Contract(s) in light of such modification for purposes of
this Agreement (PROVIDED, HOWEVER, that, in the absence of such an
agreement between AMG and the Friess Companies, such Client shall be
deemed not to have given its Consent for any purpose under this
Agreement).
(iii) "Contract Value" shall mean:
(A) With respect to an Advisory Contract which was in effect
with one of the Friess Companies on the Base Date (or any new
Advisory Contract replacing such an Advisory Contract that was in
effect on the Base Date and will by its terms or under applicable
Laws and Regulations terminate upon the consummation of the
transactions contemplated hereby), the annual advisory and other
asset-based fees (other than any incentive or performance-based
fees) payable to the WY LLC thereunder based upon the fee schedule
set forth in such Advisory Contract and the assets under management
pursuant to such Advisory Contract as of the Base Date (adjusted for
any additions, withdrawals and/or reinvestments of dividends and
distributions by the Client (and/or by investors in the Client, in
the case of an Advisory Contract with a Client that is a collective
investment vehicle), and for any adjustments to the fee schedule in
effect under such Advisory Contract (or under the prior Advisory
Contract that was in effect on the Base Date, in the case of any new
Advisory Contract replacing a terminating Advisory Contract), in
each case from the Base Date to the Closing or the Closing True-Up
Date, as applicable, PROVIDED that such assets under management and
fee schedule payable pursuant to such Advisory Contract also shall
be reduced (but, for the avoidance of doubt, in no event increased)
for purposes of calculating the Contract Value thereof to the extent
that the Client party thereto has, on or prior to the Closing Date
or the Closing True-Up Date (as applicable), expressed (and not
subsequently withdrawn) an intent to reduce such assets under
management or fee schedule in effect pursuant to such Advisory
Contract (but not yet effected such reduction in its entirety)); and
(B) With respect to an Advisory Contract which was entered
into after the Base Date (or any new Advisory Contract replacing
such an Advisory Contract that was entered into after the Base Date
and will by its terms or under applicable Laws and Regulations
terminate upon the consummation of the transactions contemplated
hereby), the annual advisory and other asset-based fees (other than
any incentive or performance-based fees) payable to the WY LLC
thereunder based on the fee schedule set forth in such Advisory
Contract and the assets under management pursuant to such Advisory
Contract as of the date of such Advisory Contract (adjusted for any
additions, withdrawals and/or reinvestments of dividends and
distributions by the Client (and/or by investors in the Client, in
the case of an Advisory Contract with a Client that is a collective
investment vehicle), and for any adjustments to the fee schedule in
effect under such Advisory Contract (or under the prior Advisory
Contract, in the case of any
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new Advisory Contract replacing a terminating Advisory Contract), in
each case from the date such Advisory Contract (or the prior
Advisory Contract, in the case of a terminating Advisory Contract
that is being replaced by a new Advisory Contract) was entered into
to the Closing or the Closing True-Up Date, as applicable, PROVIDED
that such assets under management and fee schedule payable pursuant
to such Advisory Contract also shall be reduced (but, for the
avoidance of doubt, in no event increased) for purposes of
calculating the Contract Value thereof to the extent that the Client
party thereto has, on or prior to the Closing Date or the Closing
True-Up Date (as applicable), expressed (and not subsequently
withdrawn) an intent to reduce such assets under management or fee
schedule in effect pursuant to such Advisory Contract (but not yet
effected such reduction in its entirety)).
(b) With respect to each Mutual Fund (other than a Subadvised Fund),
its Mutual Fund Board Approval and Mutual Fund Shareholder Approval shall have
been obtained and shall remain in full force and effect.
(c) At the Closing, FAI, FAID and each of the Stockholders shall
have delivered a certificate to AMG certifying as to compliance with the
conditions set forth in this Section 9.3, which certificate includes the
calculation of compliance in reasonable detail (including without limitation the
UPDATED SCHEDULE 3.7 to be delivered prior to the Closing) and has attached
thereto evidence of Consents reasonably satisfactory to AMG.
9.4 REGISTRATION AS AN INVESTMENT ADVISER AND REGISTRATION OF
INVESTMENT ADVISER REPRESENTATIVES.
(a) (i) The DE LLC shall have filed the New ADV and the New ADV
shall have become effective, and each of the LLCs shall be a registered
investment adviser, and (ii) each of the LLCs shall have made appropriate
filings under the laws of each state where such filings are necessary or
advisable to enable such LLC, after giving effect to the Closing and the DE LLC
Asset Transfer, to conduct the business presently conducted by FAI, FAID and the
WY LLC, as applicable.
(b) All applicable employees of FAI, FAID, the WY LLC and the DE LLC
shall have become registered as investment adviser representatives (within the
meaning of Rule 203A-3(a) under the Advisers Act) of the WY LLC or the DE LLC
(as applicable) under the laws of each state where such a registration is
necessary or advisable to enable the LLCs, after giving effect to the Closing
and the DE LLC Asset Transfer, to conduct the business presently conducted by
the Friess Companies and the WY LLC.
9.5 OTHER APPROVALS. Except to the extent otherwise specifically
provided for in this Agreement, all actions by or in respect of, or filings
with, any governmental body, agency, or official or authority required to permit
the consummation of the transactions contemplated hereby and by the Management
Owner Purchase Agreement so that, after the Closing and the DE LLC Asset
Transfer, the LLCs shall be able to carry on the business presently being
conducted by the Friess Companies and the WY LLC, in all material respects in
the manner now conducted
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by the Friess Companies and the WY LLC, shall have been taken, made or obtained,
and all other material permits, approvals, consents, Licenses or other actions
necessary to consummate the transactions hereunder and under the Management
Owner Purchase Agreement and permit such carrying out of the business by the
LLCs (including without limitation each of the approvals, consents and waivers
set forth in SCHEDULE 3.5 hereto) shall have been received or taken, and none of
such permits, approvals, consents or Licenses shall contain any provisions
which, in the reasonable judgment of AMG, are unduly burdensome.
9.6 TRANSFER. (a) All customary actions which AMG reasonably
requests in order to permit the transactions contemplated by the Asset Transfer
Agreements (and the schedules and exhibits thereto) to be fully carried out
shall have occurred, (b) the DE LLC Asset Transfer Agreements and the agreements
which are exhibits thereto, and any other customary instruments of transfer as
AMG shall reasonably request in connection therewith, shall have been executed
and delivered to AMG, and (c) the WY LLC Asset Transfer Agreements and the
agreements which are exhibits thereto, and any other customary instruments of
transfer as AMG shall reasonably request in connection therewith, shall remain
in full force and effect.
9.7 RESTATED LLC AGREEMENTS. The Restated LLC Agreements shall have
become effective, shall remain in full force and effect and shall not have been
breached by any party thereto.
9.8 EMPLOYMENT AGREEMENTS. (a) Each of the Employment Agreements
shall remain in full force and effect and shall not have been breached by any
party thereto and (b) the employee party to such Employment Agreement shall (i)
remain employed by one of the LLCs as of the Closing on a full-time basis, (ii)
be a Non-Manager Member of both of the LLCs (effective as of the Closing) and
(iii) have sold his previously existing membership interest in the WY LLC to FA
(WY) Acquisition pursuant to the Management Owner Purchase Agreement.
9.9 NON-SOLICITATION AGREEMENTS. (a) Each of the Non-Solicitation
Agreements shall remain in full force and effect and (b) at least six (6) of the
seven (7) employees who are parties to Non-Solicitation Agreements as of the
date hereof shall (i) remain employed by one of the LLCs as of the Closing on a
full-time basis, (ii) be Non-Manager Members of both of the LLCs (effective as
of the Closing), (iii) have complied with his or her Non-Solicitation Agreement
in all material respects, and (iv) have sold his or her previously existing
membership interest in the WY LLC to FA (WY) Acquisition pursuant to the
Management Owner Purchase Agreement; PROVIDED, HOWEVER, that, in the event of
the death of any employee party to a Non-Solicitation Agreement prior to the
Closing, the requirement in clause (b) of this Section 9.9 shall be reduced from
six (6) employees to five (5) employees.
9.10 NET WORTH AND WORKING CAPITAL OF THE LLCS. As of the Closing
(after giving effect to the DE LLC Asset Transfer, and taking into account all
transaction costs of the Friess Companies, the Stockholders, the LLCs and the
Management Owners), the LLCs shall have (i) a combined tangible net worth
(determined in accordance with GAAP using the accrual based method of
accounting, consistently applied, but excluding any accounts receivable owed to
the LLCs by any Stockholder, any Affiliate of either Friess Company, either LLC
or any Stockholder, or any other director, officer or employee of any of the
foregoing) of at least
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$7,200,000, and (ii) combined working capital (defined as current assets less
current liabilities) of at least $5,900,000, all of which shall consist of cash.
AMG shall be provided with a certificate at the Closing from the chief financial
officer of each of the Friess Companies representing that the conditions
contained in this Section 9.10 are complied with.
9.11 DELIVERY. Each of the Friess Companies, the Charities and the
Stockholders shall have executed (where applicable) and delivered to AMG (or
shall have caused to be executed and delivered to AMG by the appropriate Person,
including without limitation the LLCs and the Management Owners) the following:
(a) the DE LLC Asset Transfer Agreement (including all agreements
and documents which are schedules thereto) and all such other customary
documents of transfer and assignment as AMG may reasonably have requested in
connection therewith;
(b) certified copies of resolutions of the board of directors and
stockholders of each of the Friess Companies, and the applicable governing body
of each of the Charities, authorizing the execution of this Agreement and each
of the agreements, documents and instruments contemplated hereby to which either
of the Friess Companies or the Charities (as applicable) is a party (and which
FAID executes on behalf of the DE LLC or FAI executes on behalf of the WY LLC,
where applicable);
(c) a copy of the Articles of Incorporation and by-laws of FAI
which, in the case of the Articles of Incorporation, is certified as of a recent
date by the Department of State of the State of Delaware;
(d) a copy of the Articles of Incorporation and by-laws of FAID
which, in the case of the Articles of Incorporation, is certified as of a recent
date by the Department of State of the State of Delaware;
(e) a copy of the Certificate of Formation of each of the LLCs
certified as of a recent date by the Secretary of State of the State of
Delaware;
(f) a copy of each of the Existing LLC Agreements of each of the
LLCs as in effect immediately prior to the restatement into the Restated LLC
Agreements;
(g) a certificate issued by the appropriate Secretary of State of
each state in which each of the Friess Companies and the WY LLC and, with
respect to the DE LLC, after giving effect to the DE LLC Asset Transfer, the DE
LLC does business and is required to be qualified as a foreign company or
foreign limited liability company, as applicable, certifying that each of the
Friess Companies and the LLCs, as applicable, is in good standing in such state
as of the most recent practicable date;
(h) true and complete copies of each of the agreements, documents
and instruments contemplated hereby (including, without limitation, the Restated
LLC Agreements), and all agreements, documents, instruments and certificates
delivered or to be delivered in connection therewith;
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(i) a certificate of the Secretary of each the Friess Companies, on
behalf of the Friess Companies, and of FF as a Director of each of the LLCs, on
behalf of the respective LLC, certifying that the resolutions of the Friess
Companies, the Articles of Incorporation, the Existing LLC Agreements, the Asset
Transfer Agreements, the Existing Charity Assignment Agreements and the by-laws
in paragraphs (b), (c), (d) and (f) above are in full force and effect and have
not been amended or modified, and that the officers of such corporation or
limited liability company are those persons named in the certificate, and a
certificate of a senior officer of each the Charities certifying that the
resolutions of the Charities in paragraph (b) above are in full force and effect
and have not been amended or modified, and that the officers of such Charity are
those persons named in the certificate;
(j) (i) an opinion from Skadden, Arps, Slate, Meagher & Flom LLP, as
counsel to the Friess Companies and the Stockholders, in the form of EXHIBIT
9.11(j)(i) hereto, (ii) opinions from internal or outside counsel to each of the
Charities, in each case in form and substance reasonably acceptable to AMG and
its counsel and the Friess Companies and their counsel containing customary
opinions with respect to (1) transfer of the WY LLC Interests free and clear of
any Claims (2) due authorization of this Agreement and the transactions
contemplated hereby, (3) enforceability of this Agreement and (4) no conflicts
with the organizational documents or other agreements of such Charity or with
applicable law, (iii) an opinion from McGuire Woods, LLP, as regulatory counsel
to the Friess Companies and the Mutual Funds sponsored by the Friess Companies,
in the form of EXHIBIT 9.11(j)(iii) hereto, (iv) an opinion from Richards,
Layton & Finger, as counsel to the Friess Companies, in substantially the form
of EXHIBIT 9.11(j)(iv) hereto, (v) one or more opinions from counsel to the
Majority Management Owners (other than FF) or the Friess Companies, in either
such case with respect to substantially the same matters regarding the Majority
Management Owners (other than FF) as are covered in the opinion delivered
pursuant to clause (i) hereof with respect to FF, and (vi) an opinion from
counsel to each of the Mutual Funds (other than the Subadvised Funds) with
respect to customary matters (including without limitation the Mutual Fund Board
Approval and Mutual Fund Shareholder Approval of each such Mutual Fund) and in
form and substance reasonably acceptable to AMG;
(k) a release of the LLCs from all liabilities, other than those
arising out of the transactions and agreements contemplated hereby, from each of
the Stockholders, in each case in the form attached hereto as EXHIBIT 9.11(k);
(l) from each Friess Company, a "transferor's certificate of
non-foreign status" as provided in the Treasury Regulations under Section 1445
of the Code in the form attached hereto as EXHIBIT 9.11(l); and
(m) such other certificates and documents as are required hereby or
are customary and reasonably requested by AMG (and, including without
limitation, copies of any side letters or other agreements entered into among
the Friess Companies, the Charities and/or any of the Stockholders in connection
with this Agreement and the transactions contemplated hereby).
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9.12 INSURANCE. AMG shall have received such evidence as it shall
deem necessary or appropriate as to the insurability of each of the Majority
Management Owners with respect to both key-man life insurance and disability
insurance policies, in such amounts as AMG shall reasonably have determined.
Each of the LLCs shall have in place insurance policies as contemplated by
Section 3.19.
9.13 POLICIES AND PROCEDURES. Each of the LLCs and its employees
shall have adopted such Code of Ethics, Insider Trading Policies and Supervisory
Procedures Manuals as are reasonably acceptable to AMG.
9.14 MUTUAL FUND BOARDS. No more than 25% of the members of the
board of directors of any Mutual Fund shall be "interested persons" (as defined
in the Investment Company Act) of AMG, the Friess Companies or any Affiliates of
any of them for purposes of Section 15(f)(1)(A) of the Investment Company Act.
With respect to each Mutual Fund (other than a Subadvised Fund), the Mutual Fund
Shareholder Approval of such Mutual Fund has been obtained with respect to the
slate of directors set forth in the proxy statement distributed to the
shareholders of such Mutual Fund in accordance with Section 5.2(c) hereof.
SECTION 10. CONDITIONS TO OBLIGATIONS OF THE FRIESS COMPANIES, THE CHARITIES
AND THE STOCKHOLDERS.
The obligation of each of the Friess Companies, the Charities and
the Stockholders to consummate the transactions contemplated by this Agreement
is subject to the fulfillment (or waiver by the Friess Companies, on their own
behalf and on behalf of the Stockholders and the Charities, PROVIDED that the
Friess Companies shall not be authorized to waive the condition contained in
Section 10.1 on behalf of the Charities), prior to or at the Closing, of the
following conditions precedent:
10.1 NO LITIGATION; NO OPPOSITION. No judgment, injunction, order or
decree enjoining or prohibiting any of AMG, the Friess Companies, the Charities,
the LLCs, the Stockholders, the Management Owners or other parties to this
Agreement or any of the agreements, documents and instruments contemplated
hereby, from consummating the transactions contemplated hereby, or thereby shall
have been entered, and no suit, action or proceeding shall have been initiated
or threatened by any governmental body prior to the Closing seeking to restrain
or prohibit the execution and delivery of this Agreement or any of the
agreements, documents or instruments contemplated hereby or the consummation of
the transactions contemplated hereby or thereby.
10.2 REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each of the representations and warranties of AMG contained in
this Agreement, in any Schedule or Exhibit attached hereto, or in any other
agreement, document, instrument or certificate contemplated hereby or otherwise
made in writing by any of AMG or made by any person authorized by AMG to make
representations on its behalf, in each case shall
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be true and correct in all material respects (except for such representations
and warranties that are qualified by their terms as to materiality, which
representations or warranties as so qualified shall be true in all respects) as
of the date of this Agreement and at and as of the Closing; PROVIDED, HOWEVER,
that the accuracy of any representation or warranty that by its terms speaks
only as of a specified date shall be determined solely as of such date.
(b) Each of the agreements to be performed by AMG hereunder and
under the other agreements, documents and instruments contemplated hereby at or
prior to the Closing shall have been duly performed in all material respects.
(c) AMG shall have furnished the Friess Companies, the Stockholders
and the Charities with a certificate dated as of the date of the Closing to the
foregoing effect.
10.3 ADVISORY CLIENT CONSENT. The conditions set forth in Section
9.3 shall have been met (PROVIDED that the condition contained in this Section
10.3 shall not be applicable in the event that a breach by either of the Friess
Companies or any of the Stockholders of its covenants or agreements under this
Agreement has been the cause of, or resulted in, the conditions set forth in
Section 9.3 not being met).
10.4 DELIVERY. AMG shall have executed and delivered to the Friess
Companies the following:
(a) certified copies of resolutions of the board of directors of AMG
authorizing the execution of this Agreement and each of the other agreements,
documents or instruments contemplated hereby to which AMG is a party;
(b) a certificate issued by the Secretary of State of the State of
Delaware certifying that AMG is validly existing and in good standing in
Delaware as of the most recent practicable date;
(c) true and complete copies of each of the agreements, documents
and instruments contemplated hereby (including, without limitation, the Restated
LLC Agreements) to which AMG is a party, and all agreements, documents,
instruments and certificates delivered or to be delivered in connection
therewith by AMG;
(d) a certificate of the Secretary of AMG certifying that the
resolutions in paragraph (a) above are in full force and effect and have not
been amended or modified, and that the officers of AMG are those persons named
in the certificate; and
(e) an opinion from outside or internal counsel to AMG, FA (WY)
Acquisition and FA (DE) Acquisition with respect to those matters set forth on
EXHIBIT 10.4(e) hereto.
10.5 REGISTRATION AS AN INVESTMENT ADVISER. Each of the LLCs shall
be a registered investment adviser under the Advisers Act.
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10.6 OTHER APPROVALS. Except to the extent otherwise specifically
provided for in this Agreement, all actions by or in respect of, or filings
with, any governmental body, agency, or official or authority required to permit
the consummation of the transactions contemplated hereby and by the Management
Owner Purchase Agreement so that, after the Closing and the DE LLC Asset
Transfer, the LLCs shall be able to carry on the business presently being
conducted by the Friess Companies and the WY LLC, in all material respects in
the manner now conducted by the Friess Companies and the WY LLC, shall have been
taken, made or obtained, and all other material permits, approvals, consents,
Licenses or other actions necessary to consummate the transactions hereunder and
under the Management Owner Purchase Agreement and permit such carrying out of
the business by the LLCs (including without limitation each of the approvals,
consents and waivers set forth in SCHEDULE 3.5 hereto) shall have been received
or taken (PROVIDED that the condition contained in this Section 10.6 shall not
be applicable in the event that a breach by either of the Friess Companies,
either of the Charities or any of the Stockholders of its covenants or
agreements under this Agreement has been the cause of, or resulted in, the
conditions set forth in this Section 10.6 not being met).
10.7 SECTION 15 COMPLIANCE. No more than 25% of the members of the
board of directors of any Mutual Fund shall be "interested persons" (as defined
in the Investment Company Act) of AMG, the Friess Companies or any Affiliates of
any of them for purposes of Section 15(f)(1)(A) of the Investment Company Act.
With respect to each Mutual Fund (other than a Subadvised Fund), the Mutual Fund
Shareholder Approval of such Mutual Fund has been obtained with respect to the
slate of directors set forth in the proxy statement distributed to the
shareholders of such Mutual Fund in accordance with Section 5.2(c) hereof.
SECTION 11. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED.
11.1 TERMINATION. At any time prior to the Closing, this Agreement
may be terminated as follows:
(a) by mutual written consent of AMG and each of the Friess
Companies (on their own behalf and on behalf of the Stockholders and the
Charities);
(b) by AMG, pursuant to written notice by AMG to the Friess
Companies, if any of the conditions set forth in Section 9 of this Agreement
have not been satisfied at or prior to February 28, 2002, or if it has become
reasonably and objectively certain that any of such conditions will not be
satisfied at or prior to such date, such written notice to set forth such
conditions which have not been or will not be so satisfied (in each case subject
to AMG's right to elect to proceed pursuant to its rights under Section 11.3
hereof); PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant
to this Section 11.1(b) shall not be available to AMG if AMG's breach of this
Agreement has been the cause of, or resulted in, the failure of such conditions
to be satisfied by such date; and
(c) by the Friess Companies (on their own behalf and on behalf of
the Stockholders and the Charities), pursuant to written notice to AMG, if any
of the conditions set forth in Section 10 of this Agreement have not been
satisfied at or prior to February 28, 2002, or
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if it has become reasonably and objectively certain that any of such conditions,
will not be satisfied at or prior to such date, such written notice to set forth
such conditions which have not been or will not be so satisfied (in each case
subject to the Friess Companies' right to elect to proceed pursuant to their
rights under Section 11.3 hereof); PROVIDED, HOWEVER, that the right to
terminate this Agreement pursuant to this Section 11.1(c) shall not be available
to the Friess Companies if either of the Friess Companies', the Charities' or
any Stockholder's breach of this Agreement has been the cause of, or resulted
in, the failure of such conditions to be satisfied by such date.
11.2 EFFECT OF TERMINATION. All obligations of the parties hereunder
shall cease upon any termination pursuant to Section 11.1; PROVIDED, HOWEVER,
that (a) the provisions of this Section 11, Section 5.13 and the provisions of
Section 15 hereof shall survive any termination of this Agreement; and (b)
nothing herein shall relieve any party from any liability for (i) any material
breach of a representation or warranty of such party contained herein (except
for such representations and warranties that are qualified by their terms as to
materiality or Material Adverse Effect, with respect to which a party shall be
liable for any breach) as of the date such representation or warranty was made,
PROVIDED that no party shall have liability for any material breach of
representation or warranty unless such party knew or should have known of such
breach at the time such representation or warranty was made or (ii) any failure
to perform and satisfy in all material respects all of the agreements and
covenants of such party to be performed hereunder and under the agreements,
documents and instruments contemplated hereby at or prior to the Closing.
11.3 RIGHT TO PROCEED. Anything in this Agreement to the contrary
notwithstanding, (i) if any of the conditions specified in Section 9 hereof have
not been satisfied, AMG shall have the right to elect to proceed with the
transactions contemplated hereby without waiving any of its rights hereunder,
(ii) if any of the conditions specified in Section 10 hereof have not been
satisfied, the Friess Companies shall have the right to elect (on their own
behalf and on behalf of the Charities and the Stockholders, PROVIDED that the
Friess Companies shall not be authorized to waive the condition contained in
Section 10.1 on behalf of the Charities) to proceed with the transactions
contemplated hereby without waiving any of their respective rights hereunder,
and (iii) ) if the condition specified in Section 10.1 hereof has not been
satisfied with respect to a Charity, such Charity shall have the right to elect
to proceed with the transactions contemplated hereby without waiving any of its
rights hereunder.
SECTION 12. SUBSEQUENT CLOSING.
12.1 GENERAL. Upon the terms, and (solely in the case of AMG's
obligations under this Section 12) subject to the conditions, contained in this
Section 12, AMG hereby agrees:
(i) To cause FA (WY) Acquisition to purchase from FAI, and FAI
hereby agrees to sell to FA (WY) Acquisition, at the Subsequent Closing
that number of LLC Points (as defined in the Restated WY LLC Agreement) of
the WY LLC (including
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without limitation the Capital Account (as defined in the Restated WY LLC
Agreement) then associated therewith) equal to the product of (A) a
fraction, the numerator of which is nineteen (19) and the denominator of
which is thirty four (34), multiplied by (B) the number of LLC Points of
the WY LLC owned of record by FAI as of immediately following the Closing
(the "FAI WY LLC Subsequent Purchase"); and
(ii) To cause FA (DE) Acquisition to purchase from FAID, and FAID
hereby agrees to sell to FA (DE) Acquisition, at the Subsequent Closing
that number of LLC Points (as defined in the Restated DE LLC Agreement) of
the DE LLC (including without limitation the Capital Account (as defined
in the Restated DE LLC Agreement) then associated therewith) equal to the
product of (A) a fraction, the numerator of which is nineteen (19) and the
denominator of which is thirty four (34), multiplied by (B) the number of
LLC Points of the DE LLC owned of record by FAID as of immediately
following the Closing (the "FAID DE LLC Subsequent Purchase" and,
collectively with the FAI WY LLC Subsequent Purchase, the "Subsequent
Purchase").
12.2 SUBSEQUENT PURCHASE PRICE; DELIVERY OF LLC POINTS.
(a) Upon the terms, and (solely in the case of AMG's obligations
under this Section 12) subject to the conditions, contained in this Section 12,
at the Subsequent Closing:
(i) AMG shall cause FA (WY) Acquisition to deliver by wire transfer
to FAI, at a bank account to be designated in writing by FAI to AMG at
least three (3) business days prior to the Subsequent Closing Date, an
aggregate amount equal to the WY LLC Subsequent Purchase Price, in
immediately available funds, in full consideration for the sale to FA (WY)
Acquisition of all of the WY LLC Points to be purchased at the Subsequent
Closing; and
(ii) AMG shall cause FA (DE) Acquisition to deliver by wire transfer
to FAID, at a bank account to be designated in writing by FAID to AMG at
least three (3) business days prior to the Subsequent Closing Date, an
aggregate amount equal to the DE LLC Subsequent Purchase Price, in
immediately available funds, in full consideration for the sale to FA (DE)
Acquisition of all of the DE LLC Points to be purchased at the Subsequent
Closing.
(b) Within ten (10) business days following the date which is
forty-five (45) days after the Subsequent Closing Date (the "Subsequent Closing
True-Up Date"), AMG hereby agrees to cause FA (WY) Acquisition to deliver by
wire transfer to FAI, and to be paid to the same bank account used for the
payment of the WY LLC Subsequent Purchase Price (except to the extent FAI shall
have designated another bank account to AMG in writing at least two (2) business
days prior to the Subsequent Closing True-Up Date), an aggregate amount equal to
the Post-Subsequent Closing True-Up Payment (if any).
(c) Not later than two (2) business days prior to the Subsequent
Closing Date, the Friess Companies shall deliver to AMG (i) an UPDATED SCHEDULE
3.7 containing all of the information required by Section 3.7(a) (set forth as
of three (3) business days prior to the
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Subsequent Closing Date instead of as of the Base Date, but excluding the
information required under Section 3.7(a)(vi)) with respect to each of the
Advisory Contracts of the WY LLC as of such date and (ii) the calculation of the
WY LLC Subsequent Purchase Price in reasonable detail, certified by FAI, FAID
and each of the Stockholders (which certification shall constitute a
representation and warranty to AMG under this Agreement) as being true and
correct and having attached thereto such evidence of the underlying information
resulting in such WY LLC Subsequent Purchase Price as is reasonably satisfactory
to AMG.
(d) Promptly (and in any event within three (3) business days)
following the Subsequent Closing True-Up Date, the Friess Companies shall
deliver to AMG (i) an UPDATED SCHEDULE 3.7 containing all of the information
required by Section 3.7(a) (set forth as of the Subsequent Closing True-Up Date
instead of as of the Base Date, but excluding the information required under
Section 3.7(a)(vi)) with respect to each of the Advisory Contracts excluded from
the calculation of the WY LLC Subsequent Closing Purchase Price by the operation
of clause (i) or clause (ii) of paragraph (b) of the definition of "WY LLC
Subsequent Closing Purchase Price" and (ii) the calculation of the
Post-Subsequent Closing True-Up Payment (if any) in reasonable detail, certified
by FAI, FAID and each of the Stockholders (which certification shall constitute
a representation and warranty to AMG under this Agreement) as being true and
correct and having attached thereto such evidence of the underlying information
resulting in such Post-Subsequent Closing True-Up Payment as is reasonably
satisfactory to AMG.
(e) At the Subsequent Closing, upon the terms, and (solely in the
case of AMG's obligations under this Section 12) subject to the conditions,
contained in this Section 12, (i) FAI shall deliver to FA (WY) Acquisition that
number of LLC Points of the WY LLC to be purchased at the Subsequent Closing,
and each of FAI and FA (WY) Acquisition shall execute and deliver to the other a
Transfer Agreement in the form of EXHIBIT 12.2(e) hereto, and (ii) FAID shall
deliver to FA (DE) Acquisition the number of LLC Points of the DE LLC to be
purchased at the Subsequent Closing, and each of FAID and FA (DE) Acquisition
shall execute and deliver to the other a Transfer Agreement in the form of
EXHIBIT 12.2(e), hereto. Neither the approval of the Management Committee nor of
any Non-Manager Member of either LLC (each as defined in the Restated LLC
Agreements) shall be required in connection with the transfer of LLC Points to
FA (WY) Acquisition and FA (DE) Acquisition at the Subsequent Closing (and each
of the Stockholders hereby acknowledges and agrees to such potential transfer of
LLC Points).
(f) Each of the LLCs agrees to cooperate and assist the Friess
Companies in all reasonable respects (with the expenses thereof to be borne out
of the Operating Allocation, as such term is defined in the Restated LLC
Agreements) to permit the Friess Companies to make the calculations and deliver
the information required to be delivered by them to AMG pursuant to this Section
12.
12.3 TIME AND PLACE OF SUBSEQUENT CLOSING. The closing of the
Subsequent Purchase provided for in this Section 12 (the "Subsequent Closing")
shall be held at the offices of Simpson Thacher & Bartlett, 425 Lexington
Avenue, New York, New York at 10:00 a.m. local time on the third anniversary of
the Closing Date, or if such date is not a business day, on the next succeeding
business day (the "Subsequent Closing Date") or at such other place or time
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as may be mutually agreed upon in writing by AMG and the Friess Companies;
PROVIDED, HOWEVER, that, in the event there is an indemnification claim asserted
by an AMG Indemnified Party prior to the third anniversary of the Closing Date
which has not been resolved to the satisfaction of AMG prior to the third
anniversary of the Closing Date, AMG shall be permitted to unilaterally postpone
the Subsequent Closing Date, by not less than three (3) business days written
notice of such postponement to FAI and FAID, until such time as such
indemnification claim has been resolved to the satisfaction of AMG (and the
determination of the WY LLC Subsequent Purchase Price, the DE LLC Subsequent
Purchase Price and the Post-Subsequent Closing True-Up Payment (if any) shall
thereby be commensurately postponed), subject to the subsequent termination of
such postponement period by AMG upon not less than three (3) business days'
written notice thereof to FAI and FAID; PROVIDED, FURTHER, that, in the event
that AMG has elected to postpone the Subsequent Closing Date pursuant to the
immediately preceding proviso, FAI and FAID may unilaterally elect, by written
notice of such election to AMG delivered within five (5) business days following
AMG's notice of postponement delivered pursuant to the immediately preceding
proviso, to cause the Subsequent Closing Date to occur three (3) business days
following such election by FAI and FAID, in which event AMG shall have the right
(in addition to collecting directly from the Stockholders) to set off its full
indemnification claims against the amount otherwise payable pursuant to this
Section 12 as the Subsequent Purchase Price (PROVIDED that any such setoff shall
not be deemed to compromise or waive any rights that FAI and/or FAID may have to
seek ultimate resolution of such indemnification claims by settlement or
arbitration thereafter).
12.4 FURTHER ASSURANCES. FAI and FAID shall, from time to time after
the Subsequent Closing, at the request of AMG and without further consideration,
execute and deliver such further customary instruments of transfer and
assignment and take such other customary actions as AMG may reasonably request
to fully implement the provisions of this Section 12. Prior to the Subsequent
Closing, neither FAI nor FAID shall in any event (without the prior written
consent of AMG) Transfer (as such term is defined in the Restated LLC
Agreements) any of their respective LLC Points in the WY LLC or the DE LLC which
may be subject to sale to FA (WY) Acquisition or FA (DE) Acquisition pursuant to
this Section 12 at the Subsequent Closing.
12.5 TRANSFER TAXES. All transfer taxes, fees and duties under
applicable law incurred in connection with the Subsequent Purchase will be borne
and paid by FAI and FAID, and FAI and FAID shall promptly reimburse the LLCs,
AMG, FA (WY) Acquisition and FA (DE) Acquisition for any such tax, fee or duty
which any of them is required to pay under applicable law.
12.6 AMENDMENT OF SCHEDULE A TO RESTATED LLC AGREEMENTS. Upon the
occurrence of the Subsequent Closing, (i) FA (WY) Acquisition (as the Manager
Member of the WY LLC) shall update Schedule A to the Restated WY LLC Agreement
to reflect the LLC Points owned by the Members of the WY LLC after giving effect
to the FAI WY LLC Subsequent Purchase, and (ii) FA (DE) Acquisition (as the
Manager Member of the DE LLC) shall update Schedule A to the Restated DE LLC
Agreement to reflect the LLC Points owned by the Members of the DE LLC after
giving effect to the FAID DE Subsequent Purchase.
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12.7 CONDITIONS TO SUBSEQUENT PURCHASE. The obligation of AMG to
consummate the Subsequent Purchase is subject to the fulfillment (or waiver by
AMG), prior to or at the Subsequent Closing Date, of the following conditions
precedent:
(a) Each of the representations and warranties of FAI and FAID
contained in the documentation delivered by them pursuant to Section 12.2(b)
hereof shall be true and complete in all material respects as of the Subsequent
Closing Date;
(b) (i) None of FAI, FAID or FF (directly or indirectly) shall have
willfully, intentionally or knowingly (solely with respect to the taking of the
action constituting such a breach) taken any action which constitutes a breach
of its post-Closing obligations under this Agreement, either of the Restated LLC
Agreements or the Employment Agreement of FF (other than Section 1(b) or Section
2 of such Employment Agreement), and (ii) FF shall not have willfully,
intentionally or knowingly (solely with respect to the engaging in of such
action or other activity constituting "For Cause") engaged in any of the actions
or other activities which constitutes "For Cause" under his Employment
Agreement, in the case of clause (i) or (ii) which breach, action or other
activity (as applicable) has resulted or would reasonably be expected to result
in material harm to (A) AMG and its Controlled Affiliates (taken as a whole)
(other than the LLCs and their respective Controlled Affiliates) or (B) the WY
LLC, the DE LLC and their respective Controlled Affiliates (taken as a whole);
PROVIDED, HOWEVER, that, solely in the event that such breach, action or other
activity (as applicable) can be cured by FAI, FAID or FF (as applicable) without
having resulted (or continuing to be reasonably expected to result) in the
foregoing type of material harm, FAI, FAID or FF (as applicable) shall be given
thirty (30) days to cure such breach, action or other activity (as applicable)
from the earlier of the time he (I) has been notified thereof by AMG or (II)
otherwise become aware of such breach, action or other activity (as applicable);
and
(c) FF shall not have willfully, intentionally or knowingly (solely
with respect to the taking of the action constituting such a breach) materially
breached his post-Closing obligations under Section 1(b) or Section 2 of his
Employment Agreement); PROVIDED, HOWEVER, that, solely in the event that such
material breach both (i) did not consist of FF having tendered his resignation
to the WY LLC (or otherwise affirmatively terminating his employment
relationship with the WY LLC) and (ii) can be cured by FF without having
resulted (or continuing to be reasonably expected to result) in material harm to
(A) AMG and its Controlled Affiliates (taken as a whole) (other than the LLCs
and their respective Controlled Affiliates) or (B) the WY LLC, the DE LLC and
their respective Controlled Affiliates (taken as a whole), FF shall be given
thirty (30) days to cure such material breach from the earlier of the time he
(I) has been notified thereof by AMG or (II) otherwise become aware of such
material breach (but, for the avoidance of doubt, if such material breach has
not been cured by the end of such thirty-day period, such material breach shall
be conclusively deemed to have resulted in material harm to AMG and the LLCs
without any requirement of proof or other establishment of such harm by any
party hereto, and shall cause the condition set forth in this Section 12.7(c)
thereafter to fail to be satisfied).
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SECTION 13. INDEMNIFICATION.
13.1 JOINT AND SEVERAL INDEMNIFICATION BY THE STOCKHOLDERS. From and
after the Closing, the Stockholders agree, jointly and severally, to indemnify
and hold AMG and its subsidiaries and Affiliates (including the LLCs) and their
respective officers, directors, members, employees, agents and representatives
(other than the Employee Stockholders and Non-Manager Members (each as defined
in the Restated LLC Agreements)) (individually an "AMG Indemnified Party" and,
collectively, the "AMG Indemnified Parties") harmless from and against any
damages, liabilities, losses (including, without limitation, diminution in
value), fines, penalties, costs, and expenses (including, without limitation,
reasonable fees and expenses of counsel and experts) of any kind or nature
whatsoever (whether or not arising out of third-party claims and including all
amounts paid in investigation, defense or settlement of the foregoing)
(collectively, "Losses") which may be sustained or suffered by any of them
resulting from, arising out of or based upon any of the following matters:
(a) fraud by either of the Friess Companies or any Stockholder in
connection with any of their representations, warranties, covenants or
agreements under this Agreement or any agreement, document or instrument
contemplated hereby or in any certificate, schedule or exhibit delivered
pursuant hereto or thereto, or otherwise in connection with the transactions
contemplated hereby;
(b) any breach of any representation, warranty, covenant or
agreement of either of the Friess Companies or any Stockholder under this
Agreement (other than the representations and warranties set forth in Section 4
hereof) or under any agreement, document or instrument contemplated hereby, or
in any certificate, schedule or exhibit delivered pursuant hereto or thereto, or
by reason of any claim, action or proceeding asserted or instituted growing out
of any matter or thing constituting such a breach (or which would, in the case
of any allegations made by third-parties, if true constitute such a breach);
(c) the activities, conduct, business or operation of either of the
Friess Companies or the LLCs prior to the Closing, or arising out of facts,
events or circumstances regarding either of the Friess Companies or the LLCs
existing prior to the Closing (whether or not disclosure of such facts, events
or circumstances was made herein or on the Schedules hereto), in each case to
the extent that such Loss has resulted from or arisen out of such activities,
conduct, business or operation or such facts, events or circumstances existing
prior to the Closing; PROVIDED, HOWEVER, that indemnification pursuant to this
Section 13.1(c) shall not be available for liabilities to the extent such
liabilities are specifically reflected or reserved for in the opening balance
sheet of the LLCs (to the extent so reflected or reserved for) and are not
otherwise subject to indemnification pursuant to clauses (a), (b) or (d) of this
Section 13.1; and
(d) to the extent not otherwise subject to indemnification pursuant
to this Section 13.1, (i) liabilities and obligations for any Taxes incurred by
either of the Friess Companies (for the avoidance of doubt, solely to the extent
resulting in Losses to any AMG Indemnified Party) or the LLCs with respect to
any period ending on or before the date of the Closing (or, for any period
beginning before and ending after the date of the Closing, liabilities and
obligations for Taxes to the extent allocable to the portion of such period
beginning before
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and ending on the date of the Closing), (ii) the breach by either Friess
Company, either Charity or any Stockholder of any provision of this Agreement
relating to or involving Tax matters and (iii) any adverse consequences or
Losses arising out of or relating to any failure to pay any such Taxes or
resulting from any such breach.
13.2 SEVERAL INDEMNIFICATION BY THE CHARITIES. From and after the
Closing, each Charity agrees, severally and not jointly, to indemnify and hold
the AMG Indemnified Parties harmless from and against any Losses which may be
sustained or suffered by any of them resulting from, arising out of or based
upon any of the following matters:
(a) fraud by such Charity in connection with any of its
representations, warranties, covenants or agreements under this Agreement or any
agreement, document or instrument contemplated hereby or in any certificate,
schedule or exhibit delivered pursuant hereto or thereto, or otherwise in
connection with the transactions contemplated hereby; and
(b) any breach of any representation or warranty of such Charity set
forth in Section 4 of this Agreement, any covenant or agreement of such Charity
under this Agreement, or any representation, warranty, covenant or agreement of
such Charity under any other agreement, document or instrument contemplated
hereby, or in any certificate, schedule or exhibit delivered pursuant hereto or
thereto, or by reason of any claim, action or proceeding asserted or instituted
growing out of any matter or thing constituting such a breach (or which would,
in the case of any allegations made by third-parties, if true constitute such a
breach).
13.3 LIMITATIONS ON INDEMNIFICATION BY THE STOCKHOLDERS AND THE
CHARITIES. Notwithstanding any other provision of this Agreement to the
contrary, the right of AMG Indemnified Parties to indemnification under Section
13.1 and Section 13.2 shall be subject to the following provisions:
(a) No indemnification shall be payable pursuant to Sections
13.1(b), 13.1(c) or 13.2(b) to any AMG Indemnified Party unless the sum of all
claims for indemnification by AMG Indemnified Parties pursuant to Sections 13.1
and 13.2 shall exceed $2,500,000 (PROVIDED that such dollar threshold shall be
reduced by the aggregate amounts of any payments made by either LLC to FAI or
FAID pursuant to Section 2 of any of the Asset Transfer Agreements), whereupon
only amounts in excess of such $2,500,000 (as the same may have been reduced in
accordance with the immediately preceding parenthetical) level shall be
recoverable pursuant to Sections 13.1(b), 13.1(c) and 13.2(b) (PROVIDED that in
no event shall the limitation provided in this Section 13.3(a) apply to any
claim (i) for indemnification for Taxes or (ii) based upon or related to a
breach of any representation, warranty, covenant or agreement with respect to
Taxes or contained in Section 3.3, 3.4(b), 3.5, 3.21, 4.2 or 4.3 hereof);
(b) No indemnification shall be payable to an AMG Indemnified Party
(i) with respect to claims asserted pursuant to Sections 13.1(b) or 13.2(b)
after the expiration of the related representation, warranty, covenant or
agreement pursuant to Section 13.9 or (ii) with respect to claims asserted
pursuant to Section 13.1(c) after the second anniversary of the Closing Date (in
either such case, the "Indemnification Cut-Off Date"); PROVIDED, HOWEVER, that
such expiration shall not affect any claim with respect to which notice was
given in the manner
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contemplated by Section 13.6 hereof prior to the Indemnification Cut-Off Date;
and PROVIDED, FURTHER, that, notwithstanding the provisions of Section 13.9, all
representations, warranties, covenants and agreements of the Friess Companies,
the Charities and the Stockholders contained in this Agreement or in any
agreement, document or instrument contemplated hereby or in any certificate,
schedule or exhibit delivered pursuant hereto or thereto shall survive
indefinitely for purposes of indemnification sought pursuant to Section 13.1(a)
or Section 13.2(a);
(c) No indemnification shall be payable to the AMG Indemnified
Parties with respect to claims asserted pursuant to Sections 13.1(b), 13.1(c) or
13.2(b) in amounts in the aggregate in excess of fifty percent (50%) of the
Total Purchase Price (PROVIDED that in no event shall the limitation provided in
this Section 13.3(c) apply to any claim (i) for indemnification for Taxes or
(ii) based upon or related to a breach of any representation, warranty, covenant
or agreement with respect to Taxes or contained in Section 3.3, 3.4(b), 3.5,
3.21, 4.2 or 4.3 hereof); and
(d) No indemnification shall be payable to the AMG Indemnified
Parties by an individual Charity with respect to claims asserted pursuant to
Sections 13.1(b), 13.1(c), 13.1(d) or 13.2(b) in amounts in the aggregate in
excess of fifty percent (50%) of that portion of the Total Purchase Price
received by such Charity under this Agreement.
13.4 INDEMNIFICATION BY AMG. From and after the Closing, AMG agrees
to indemnify and hold the Friess Companies, the Charities and the Stockholders
(individually a "Friess Indemnified Party" and, collectively, the "Friess
Indemnified Parties") harmless from and against any damages, liabilities,
losses, fines, penalties, costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) of any kind or nature whatsoever
(whether or not arising out of third-party claims and including all amounts paid
in investigation, defense or settlement of the foregoing) which may be sustained
or suffered by any of them resulting from, arising out of or based upon any of
the following matters:
(a) fraud by AMG in connection with any of its representations,
warranties, covenants or agreements under this Agreement or any agreement,
document or instrument contemplated hereby or in any certificate, schedule or
exhibit delivered pursuant hereto or thereto, or otherwise in connection with
the transactions contemplated hereby; and
(b) any breach of any representation, warranty, covenant or
agreement made by AMG in this Agreement or in any agreement, document or
instrument contemplated hereby, or in any certificate, schedule or exhibit
delivered pursuant hereto or thereto, or by reason of any claim, action or
proceeding asserted or instituted growing out of any matter or thing
constituting such a breach (or which would, in the case of any allegations made
by third-parties, if true constitute such a breach).
13.5 LIMITATION ON INDEMNIFICATION BY AMG. Notwithstanding the
foregoing, the right of Friess Indemnified Parties to indemnification under
Section 13.4 shall be subject to the following provisions:
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(a) No indemnification pursuant to Section 13.4(b) shall be payable
to Friess Indemnified Parties unless the total of all claims for indemnification
pursuant to Section 13.4 shall exceed $2,500,000 in the aggregate, whereupon
only amounts in excess of such $2,500,000 level shall be recoverable in
accordance with the terms hereof (PROVIDED that in no event shall the limitation
provided in this Section 13.5(a) apply to any claim based upon or related to a
breach of any representation or warranty contained in Section 7.3 or 7.7
hereof);
(b) No indemnification shall be payable to Friess Indemnified
Parties with respect to claims asserted pursuant to Section 13.4(b) above in
amounts in the aggregate in excess of fifty percent (50%) of the Total Purchase
Price (PROVIDED that in no event shall the limitation provided in this Section
13.5(a) apply to any claim based upon or related to a breach of any
representation or warranty contained in Section 7.3 or 7.7 hereof); and
(c) No indemnification shall be payable to the Friess Indemnified
Parties with respect to claims asserted pursuant to Section 13.4(b) above after
the applicable Indemnification Cut-Off Date; PROVIDED, HOWEVER, that such
expiration shall not affect any claim with respect to which notice was given in
the manner contemplated by Section 13.6 hereof prior to the Indemnification
Cut-Off Date.
13.6 NOTICE; DEFENSE OF CLAIMS. An indemnified party may make claims
for indemnification hereunder by giving written notice thereof to AMG (if it is
the indemnifying party) or to FAI (if the Stockholders and/or the Charities are
the indemnifying parties, and FAI shall be exclusively authorized to give and
receive all notices and make all decisions on behalf of the Stockholders and the
Charities pursuant to this Section 13 and to bind each of the Stockholders and
Charities thereby, PROVIDED that such notice also shall be delivered to the
respective Charity if either of the Charities is a party from which
indemnification is sought) within the period in which indemnification claims can
be made hereunder. If indemnification is sought for a claim or liability
asserted by a third party, the indemnified party shall also give written notice
thereof pursuant to the preceding sentence promptly after it receives notice of
the claim or liability being asserted, but the failure to do so shall not
relieve the indemnifying parties from any liability except to the extent that
they are prejudiced by the failure or delay in giving such notice. Such notice
shall reasonably summarize the bases for the claim for indemnification and any
claim or liability being asserted by a third party. Within thirty (30) days
after receiving such notice, AMG (if it is the indemnifying party) shall give
written notice to FAI, or FAI shall give written notice to AMG (if the
Stockholders or the Charities are the indemnifying parties) shall give written
notice to AMG, in either case stating whether the indemnifying parties disputes
the claim for indemnification (or, in the alternative, acknowledging that the
claim for indemnification is fully indemnifiable by such indemnifying parties
hereunder), and stating whether it will defend against any third party claim or
liability at its own cost and expense (PROVIDED, HOWEVER, that FAI shall only be
entitled to defend against any such third party claim or liability if (i) the
only relief sought by such third party is monetary relief and (ii) the
Stockholders and the Charities have (through FAI) acknowledged that any
resulting liability will be fully indemnified by them), and in all other
circumstances AMG shall be solely entitled to defend against such third party
claim or liability on behalf of all of the parties hereto (notwithstanding the
fact that the Charities or the Stockholders are the indemnifying parties),
subject to the right of the Charities and the Stockholders (through FAI) to
participate each at
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their own expense). If AMG or FAI (as applicable) fails to give notice that it
disputes an indemnification claim within thirty (30) days after receipt of
notice thereof, it shall be deemed to have accepted and agreed to the claim (on
behalf of each of the Stockholders and Charities, in the case of a failure to
deliver notice of a dispute by FAI), which shall become immediately due and
payable (and in any such event, AMG shall be solely entitled to defend against
any third party claim or liability).
AMG (if it is the indemnifying party) or FAI (if the Stockholders
and/or the Charities are the indemnifying parties) shall be entitled to direct
the defense against a third party claim or liability with counsel selected by it
(subject to the consent of each indemnified party, which consent shall not be
unreasonably withheld) as long as AMG or FAI (as applicable) is conducting a
good faith and diligent defense (and subject, in the case of FAI, to the
limitations set forth in the preceding paragraph). Each indemnified party shall
at all times have the right to fully participate in the defense of a third party
claim or liability at its own expense directly or through counsel (such
participation to be effected solely through FAI's retention of a single counsel
on behalf of all of the indemnified Stockholders and Charities, where
Stockholders and/or Charities are the indemnified parties); PROVIDED, HOWEVER,
that if the named parties to the action or proceeding include either both the
indemnifying parties and/or one or more indemnified parties and an indemnified
party is advised that representation of both parties by the same counsel would
be inappropriate under applicable standards of professional conduct, an
indemnified party may engage separate counsel at the expense of the indemnifying
parties. If no such notice of intent to dispute and defend a third party claim
or liability is given, or if such good faith and diligent defense is not being
or ceases to be conducted by AMG or FAI (as applicable), the indemnified parties
shall have the right, at the expense of the indemnifying parties, to, after
three (3) business days notice to AMG or FAI (as applicable) of their intent to
do so, undertake the defense of such claim or liability (with counsel selected
by the indemnified parties), and to compromise or settle it, exercising
reasonable business judgment. If the third party claim or liability is one that
by its nature cannot be defended solely by the indemnifying parties, then the
indemnified parties shall make available such information and assistance as AMG
or FAI (as applicable) may reasonably request and shall cooperate with each
other in all reasonable respects in connection with such defense, at the expense
of the indemnifying parties.
Each of the Stockholders, the Charities and FAI agrees that FAI
shall remain in existence and shall not be dissolved, liquidated or terminated
for the duration of the potential indemnification obligations of the
Stockholders and the Charities under this Agreement unless and until such time
as AMG has been provided with the written agreement of each of the Stockholders
and the Charities (in form and substance reasonably acceptable to AMG)
appointing another Person to act in a binding capacity on behalf of such
Stockholder in connection with all indemnification matters arising under this
Agreement or otherwise in connection with the transactions contemplated hereby
(and each Stockholder and Charity hereby appoints FAI in such capacity from and
after the Closing).
13.7 SATISFACTION OF STOCKHOLDER INDEMNIFICATION OBLIGATIONS. In
order to satisfy the indemnification obligations of the Stockholders pursuant to
Section 13.1 and 13.2 above, an AMG Indemnified Party shall have the right (in
addition to collecting directly from the Stockholders) to set off its
indemnification claims against (a) any and all amounts of interest and
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principal under any promissory note issued to such Stockholder pursuant to the
provisions of Section 3.11 of either of the Restated LLC Agreements (whether or
not then due and payable), and/or (b) any and all amounts to be distributed to
such Stockholder by either of the LLCs, whether or not such right of set-off is
specifically provided for in the relevant Restated LLC Agreement, and/or (c) any
and all amounts owed or which become owed to such Stockholder or any Permitted
Transferee (as such term is defined in the relevant Restated LLC Agreement) of
such Stockholder by the Manager Member (as such term is defined in the Restated
LLC Agreements) or any of its Affiliates pursuant to the provisions of Sections
3.11 or 7.1 of the Restated LLC Agreements; PROVIDED, HOWEVER, that the offset
right described in clause (b) of this sentence shall only be available to an AMG
Indemnified Party from and after the rendering of a settlement, judgment or
arbitral decision establishing such indemnification obligation of the
Stockholders under this Section 13.
13.8 OTHER INDEMNIFICATION MATTERS. The Charities, the Stockholders,
the Friess Companies and AMG agree to treat any indemnity payment made pursuant
to this Agreement (or any indemnity payment that would have been made but for
the operation of any offset provision contained in this Agreement or one of the
Restated LLC Agreements) as an adjustment to the portion of the Total Purchase
Price attributable to the WY LLC or the DE LLC (as applicable) for federal,
state, local and foreign income tax purposes. The amount of any Taxes for which
indemnification is provided under this Section 13 shall not be (i) increased to
take account of any net Tax cost incurred by the indemnified party arising from
the receipt of indemnity payments hereunder or (ii) reduced to take account of
any net Tax benefit realized by the indemnified parties arising from the
incurrence or payment of any such Taxes. From and after the Closing,
indemnification pursuant to this Article 13 shall be the exclusive remedy for
monetary damages available to the Indemnified Parties with respect to any breach
of a representation, warranty, covenant or agreement contained in this Agreement
(but, for the avoidance of doubt, not with respect to a breach of any of the
other Transaction Documents), other than for claims with respect to fraud.
13.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. Each of the representations, warranties, covenants and agreements
contained herein or in any schedule, exhibit or certificate delivered by any
party to any other parties incident to the transactions contemplated hereby are
material and shall be deemed to have been relied upon by the other parties. Each
of the representations and warranties contained herein or in any schedule,
exhibit or certificate delivered by any party to any other parties incident to
the transactions contemplated hereby shall survive the Closing until the second
anniversary of the date of the Closing, except for (i) the representations and
warranties made in Section 3.9, which shall survive until the expiration of the
applicable statute of limitations, if any, and (ii) the representations and
warranties made in Sections 3.3, 3.4(b), 3.5, 3.21, 4.2, 4.3, 7.3 and 7.7, which
shall survive indefinitely. The expiration of any representation or warranty
shall not affect any claim asserted in writing by an indemnified party to an
indemnifying party prior to the date of such expiration in the manner provided
in this Section 13. All covenants and agreements contained herein or in any
schedule, exhibit or certificate delivered by any party to any other parties
incident to the transactions contemplated hereby not fully performed prior to
the Closing shall survive the Closing and continue thereafter until fully
performed (except to the extent such covenants or agreements are by their terms
to be performed solely prior to Closing and
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performance thereof is waived in conjunction with the Closing). Any
investigation, audit or other examination that may have been made or may be made
at any time by or on behalf of the party to whom any such representation or
warranty is made shall not limit or diminish such representations and
warranties, and the parties may rely on the representations and warranties set
forth in this Agreement irrespective of any information obtained by them by any
investigation, audit or examination or otherwise.
13.10 REGULATORY FILINGS. Each party hereto will cooperate with the
other parties in all reasonable respects to enable such parties to make any and
all regulatory filings required by them with respect to AMG, the Friess
Companies, the LLCs or the transactions contemplated hereby.
SECTION 14. DEFINITIONS.
14.1 DEFINITIONS. For purposes of this Agreement and the Exhibits
and Schedules hereto, the following terms shall have the respective meanings set
forth in this Section 14.1:
"ADVISERS ACT" shall mean the Investment Advisers Act of 1940, as
the same may be amended from time to time, and any successor to such act.
"ADVISORY CONTRACT" shall mean any investment management, advisory
or sub-advisory contract, or any other contract, agreement, arrangement or
understanding (whether written or oral), pursuant to which either of the Friess
Companies or the LLCs provides Investment Management Services as of any date of
determination.
"AFFILIATE" shall mean with respect to any person or entity (herein
the "first party"), any other person or entity that directly or indirectly
controls, or is controlled by, or is under common control with, such first
party. The term "control" as used herein (including the terms "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to (a) vote twenty-five percent (25%) or more of the outstanding
voting securities of such person or entity, or (b) otherwise direct the
management or policies of such person or entity by contract or otherwise.
"AGREEMENT" shall have the meaning specified in the preamble hereto.
"AMG" shall have the meaning specified in the preamble hereto.
"AMG INDEMNIFIED PARTY" shall have the meaning specified in Section
13.1 hereof.
"APPLICABLE CLOSING EXCLUDED CONTRACT" shall mean any of the
following Advisory Contracts (other than any such Advisory Contract with a
Mutual Fund or with a Related Client):
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(a) Any Advisory Contract (i) that was executed and delivered prior
to the Closing by the WY LLC and by the Client party thereto, (ii) that remains
in full force and effect both as of the Closing and as of the Closing True-Up
Date, (iii) in respect of which no funds were deposited by the Client with the
WY LLC prior to the Closing and (iv) with respect to which an executed Consent
of such Client party thereto to the assignment (or deemed assignment) of such
Advisory Contract resulting from the transactions contemplated hereby was
obtained in the manner contemplated by Section 5.2 hereof (which Consent was
duly obtained by the WY LLC under all applicable Laws and Regulations) prior to
the Closing (which Consent remains in full force and effect as of the Closing
True-Up Date);
(b) Any Advisory Contract (i) that is in full force and effect both
as of the Closing and as of the Closing True-Up Date, (ii) which either by its
terms or under applicable Laws and Regulations requires the "express" or
"written" consent of the Client party thereto to the assignment (or deemed
assignment) of such Advisory Contract, (iii) with respect to which the written
consent of such Client party thereto to the assignment (or deemed assignment) of
such Advisory Contract resulting from the transactions contemplated hereby was
not received prior to the Closing and (iv) with respect to which an executed
written Consent of such Client party thereto to the assignment (or deemed
assignment) of such Advisory Contract resulting from the transactions
contemplated hereby has been obtained in the manner contemplated by Section 5.2
hereof (which written Consent has been duly obtained by the WY LLC under all
applicable Laws and Regulations) prior to the Closing True-Up Date (which
written Consent remains in full force and effect as of the Closing True-Up
Date); and
(c) Any Advisory Contract (i) that is in full force and effect both
as of the Closing and as of the Closing True-Up Date, (ii) with respect to which
the Client party thereto, following the date of this Agreement and prior to the
Closing, either (A) reduced, or expressed an intent to reduce, its assets under
management by the WY LLC by more than 15% (such 15% reduction to be measured
from the amount of assets under management by the WY LLC pursuant to such
Advisory Contract on the Base Date (in the case of any Advisory Contract that
was in effect as of the Base Date) or on the date such Advisory Contract was
entered into by the WY LLC (in the case of any Advisory Contract that became
effective after the Base Date) or (B) reduced, or expressed an intent to reduce,
the fee schedule in effect under such Advisory Contract by more than 15% (such
15% reduction to be measured from the fee schedule in effect on the Base Date
(in the case of any Advisory Contract that was in effect as of the Base Date) or
on the date such Advisory Contract was entered into by the WY LLC (in the case
of any Advisory Contract that became effective after the Base Date) and (iii)
with respect to which an executed Consent of such Client party thereto to the
assignment (or deemed assignment) of such Advisory Contract resulting from the
transactions contemplated hereby was obtained in the manner contemplated by
Section 5.2 hereof (which Consent was duly obtained by the WY LLC under all
applicable Laws and Regulations) prior to the Closing (which Consent remains in
full force and effect as of the Closing True-Up Date).
"APPLICABLE CLOSING EXCLUDED CONTRACT VALUE" shall mean the
aggregate Contract Value of Applicable Closing Excluded Contracts as of the
Closing True-Up Date (calculated in the manner provided for in Section 9.3(a)
hereof).
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"APPLICABLE EXISTING INVESTED FUNDS" shall have the meaning
specified in Section 1.6(a) hereof.
"APPLICABLE FRIESS INVESTORS" shall have the meaning specified in
Section 1.6(a) hereof.
"APPLICABLE INVESTED FUNDS" shall have the meaning specified in
Section 1.6(b) hereof.
"APPLICABLE INVESTMENT PERIOD" shall have the meaning specified in
Section 1.6(c) hereof.
"APPLICABLE NEW INVESTED FUNDS" shall have the meaning specified in
Section 1.6(b) hereof.
"APPLICABLE PRICE COMPONENT" shall have the meaning specified in
Section 1.6(d) hereof.
"ARTICLES OF INCORPORATION" shall have the meaning specified in
Section 3.2(a) hereof.
"ASSET TRANSFERS" shall have the meaning specified in Section 2.2
hereof.
"ASSET TRANSFER AGREEMENTS" shall have the meaning specified in
Section 2.2 hereof.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code
entitled "Bankruptcy" as the same may be amended, modified, succeeded or
replaced, from time to time.
"BASE BALANCE SHEET" shall have the meaning specified in Section
3.8(a)(i) hereof.
"BASE DATE" shall have the meaning specified in Section 3.7(a)
hereof.
"BASE FEES" shall have the meaning specified in Section 9.3(a)(i)
hereof.
"CALCULATION DATE" shall have the meaning specified in Section
9.2(a) hereof.
"CFJH" shall have the meaning specified in the preamble hereto.
"CHARITIES" shall have the meaning specified in the preamble hereto.
"CHARITIES WY LLC PURCHASE" shall have the meaning specified in
Section 1.1(ii) hereof.
"CLAIMS" shall mean any restrictions, liens, claims, charges,
security interests, assignments, mortgages, deposit arrangements, pledges or
encumbrances of any kind or nature whatsoever, excluding restrictions on
transferability imposed by federal and state securities laws.
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"CLIENT" shall mean any Person to whom either of the Friess
Companies or the LLCs provides Investment Management Services.
"CLOSING" shall have the meaning specified in Section 1.3 hereof.
"CLOSING DATE" shall have the meaning specified in Section 1.3
hereof.
"CLOSING PURCHASE PRICE" shall mean the sum of (i) the WY LLC
Closing Purchase Price, plus (ii) the DE LLC Closing Purchase Price plus (iii)
the Post-Closing True-Up Payment.
"CLOSING TRUE-UP DATE" shall have the meaning specified in Section
1.2(c) hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and any successor code thereto. For purposes of this Agreement,
all references to Sections of the Code shall include any predecessor provisions
to such Sections and any similar provisions of federal, state, local or foreign
law.
"COMMODITY EXCHANGE ACT" shall mean Title 7, Section 1 ET SEQ. of
the United States Code as the same may be amended, modified, succeeded or
replaced, from time to time.
"CONSENT" shall have the meaning specified in Section 9.3(a)(ii)
hereof.
"CONSENTING PERCENTAGE" shall have the meaning specified in Section
1.2(b) hereof.
"CONTRACT VALUE" shall have the meaning specified in Section
9.3(a)(iii) hereof.
"CONTRACTS" shall have the meaning specified in Section 3.15 hereof.
"CONTROLLED AFFILIATE" shall have the meaning specified in the
Restated LLC Agreements.
"DELAWARE ACT" shall have the meaning specified in Section 3.2(b)
hereof.
"DE LLC" shall have the meaning specified in the recitals hereto.
"DE LLC ASSET TRANSFER" shall have the meaning specified in Section
2.1 hereof.
"DE LLC ASSET TRANSFER AGREEMENT" shall have the meaning specified
in Section 2.1 hereof.
"DE LLC CLOSING PURCHASE PRICE" shall mean an amount equal to the
book value of the assets of FAID as of immediately prior to the DE LLC Asset
Transfer, subject to reduction as set forth in Section 1.2(b) hereof.
"DE LLC INTERESTS" shall have the meaning specified in the recitals
hereto.
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"DE LLC PURCHASE" shall have the meaning specified in Section
1.1(iv) hereof.
"DE LLC PURCHASE PRICE ALLOCATION" shall have the meaning specified
in Section 1.2(e) hereof.
"DE LLC SUBSEQUENT PURCHASE PRICE" shall mean the product of (a) the
book value of the assets of the DE LLC as of the Subsequent Closing Date (or, if
such date is not a calendar month end, the immediately preceding calendar month
end) and (b) a fraction, the numerator of which is the number of LLC Points (as
defined in the Restated DE LLC Agreement) of the DE LLC to be purchased on the
Subsequent Closing Date, and the denominator of which is the number of DE LLC
Points outstanding (as determined pursuant to the Restated DE LLC Agreement) on
the Subsequent Closing Date (before giving effect to any issuances or
redemptions of LLC Points on such date); PROVIDED, HOWEVER, that, if the DE LLC
Subsequent Purchase Price determined pursuant to this definition otherwise would
exceed the WY LLC Subsequent Purchase Price determined pursuant to the
definition thereof set forth below (before the deduction of the DE LLC
Subsequent Purchase Price provided for in clause (ii) of the definition of WY
LLC Subsequent Purchase Price set forth below), then the DE LLC Subsequent
Purchase Price shall be reduced by the amount of such excess.
"EMPLOYEE PROGRAM" shall have the meaning specified in Section
3.24(g)(i) hereof.
"EMPLOYMENT AGREEMENTS" shall have the meaning specified in the
recitals hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor to such Act.
"ERISA AFFILIATE" shall have the meaning specified in Section
3.24(g)(iii) hereof.
"ERISA CLIENT" shall have the meaning specified in Section 3.7(c)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor to such Act.
"EXISTING CHARITY ASSIGNMENT AGREEMENTS" shall mean, collectively,
the Assignment and Assumption Agreements, each dated as of June 1, 2001,
pursuant to which FAI and FAID assigned interests in the WY LLC to the
Charities.
"EXISTING DE CERTIFICATE OF FORMATION" shall have the meaning
specified in Section 3.2(c) hereof.
"EXISTING DE LLC AGREEMENT" shall mean the Limited Liability Company
Agreement of the DE LLC dated as of August 8, 2001, which is the Limited
Liability Company Agreement of the DE LLC on the date of this Agreement and
immediately prior to its amendment and restatement into the Restated DE LLC
Agreement.
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"EXISTING LLC AGREEMENTS" shall mean, collectively, the Existing DE
LLC Agreement and the Existing WY LLC Agreement.
"EXISTING WY CERTIFICATE OF FORMATION" shall have the meaning
specified in Section 3.2(b) hereof.
"EXISTING WY LLC AGREEMENT" shall mean the Limited Liability Company
Agreement of the WY LLC dated as of June 1, 2001, which is the Limited Liability
Company Agreement of the WY LLC on the date of this Agreement and immediately
prior to its amendment and restatement into the Restated WY LLC Agreement.
"FA (DE) ACQUISITION" shall have the meaning specified in the
recitals hereto.
"FA (WY) ACQUISITION" shall have the meaning specified in the
recitals hereto.
"FAI" shall have the meaning specified in the preamble hereto.
"FAI ARTICLES OF INCORPORATION" shall have the meaning specified in
Section 3.2(a) hereof.
"FAI SHARES" shall have the meaning specified in Section 3.3(a)
hereof.
"FAI STOCKHOLDERS" shall have the meaning specified in the preamble
hereto.
"FAI-WY LLC ASSET TRANSFER AGREEMENT" shall have the meaning
specified in Section 2.2 hereof.
"FAI WY LLC PURCHASE" shall have the meaning specified in Section
1.1(i) hereof.
"FAI WY LLC SUBSEQUENT PURCHASE" shall have the meaning specified in
Section 12.1(i) hereof.
"FAID" shall have the meaning specified in the preamble hereto.
"FAID ARTICLES OF INCORPORATION" shall have the meaning specified in
Section 3.2(a) hereof.
"FAID DE LLC PURCHASE" shall have the meaning specified in Section
1.1(iii) hereof.
"FAID DE LLC SUBSEQUENT PURCHASE" shall have the meaning specified
in Section 12.1(ii) hereof.
"FAID SHARES" shall have the meaning specified in Section 3.3(a)
hereof.
"FAID STOCKHOLDERS" shall have the meaning specified in the preamble
hereto.
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"FAID-WY LLC ASSET TRANSFER AGREEMENT" shall have the meaning
specified in Section 2.2 hereof.
"FF" shall have the meaning specified in the preamble hereto.
"FF DE LLC PURCHASE" shall have the meaning specified in Section
1.1(iv) hereof.
"FRIESS COMPANIES" shall have the meaning specified in the preamble
hereto.
"FRIESS INDEMNIFIED PARTIES" shall have the meaning specified in
Section 13.4 hereof.
"FOLLOW-UP CLIENT CONSENT REQUEST LETTER" shall have the meaning
specified in Section 5.2(b) hereof.
"FUND REGULATORY DOCUMENTS" shall have the meaning specified in
Section 3.29(e) hereof.
"GAAP" shall mean United States generally accepted accounting
principles as in effect from time to time.
"IMMEDIATE FAMILY" shall mean, with respect to any natural person,
(a) such person's spouse, parents, grandparents, children, grandchildren and
siblings and (b) such person's former spouse(s) and current spouses of such
person's children, grandchildren and siblings and (c) estates, trusts,
partnerships and other entities of which substantially all of the interest is
held directly or indirectly by the foregoing.
"INDEMNIFICATION CUT-OFF DATE" shall have the meaning specified in
Section 13.3(b) hereof.
"INDEMNIFIED PARTIES" shall mean, collectively, the AMG Indemnified
Parties and the Friess Indemnified Parties.
"INITIAL CLIENT CONSENT REQUEST LETTER" shall have the meaning
specified in Section 5.2(a) hereof.
"INTELLECTUAL PROPERTY" shall have the meaning specified in Section
3.14(a) hereof.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of
1940, as the same may be amended from time to time, and any successor to such
Act.
"INVESTMENT MANAGEMENT SERVICES" shall mean any services which
involve (a) the management of an investment account or fund (or portions thereof
or a group of investment accounts or funds) for compensation, (b) the giving of
advice with respect to the investment and/or reinvestment of assets or funds (or
any group of assets or funds) for compensation or (c)
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otherwise acting as an "investment adviser" within the meaning of the Advisers
Act, and performing activities related or incidental thereto.
"IRS" shall mean the Internal Revenue Service.
"KNOWLEDGE OF THE FRIESS COMPANIES" shall mean any fact, event,
occurrence or other matter actually known to either of the Friess Companies,
either of the LLCs or any of the Majority Management Owners, or of which any
such Person should have known following due inquiry.
"LAWS AND REGULATIONS" shall have the meaning specified in Section
3.17(a) hereof, and "Laws or Regulations" shall mean any of such Laws or
Regulations individually.
"LF" shall have the meaning specified in the preamble hereto.
"LICENSES" shall have the meaning specified in Section 3.18(b)
hereof.
"LLC INTERESTS" shall have the meaning specified in the recitals
hereto.
"LLCS" shall have the meaning specified in the recitals hereto.
"LOSSES" shall have the meaning specified in Section 13.1 hereof.
"MAJORITY MANAGEMENT OWNERS" shall mean, collectively, FF, William
D'Alonzo, John Ragard and Jon Fenn.
"MANAGEMENT OWNER PURCHASE AGREEMENT" shall have the meaning
specified in the recitals hereto.
"MANAGEMENT OWNER PURCHASE PRICE" shall have the meaning specified
in the Management Owner Purchase Agreement.
"MANAGEMENT OWNERS" shall mean, collectively, each of the Majority
Management Owners and Chris Long, Carl Gates, Lynda Campbell, Fran Okoniewski,
Ethan Steinberg, Nate Dougall and William Dugdale.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to a Person, a
material adverse effect on the condition (financial or otherwise), properties,
assets, liabilities, business, operations, results of operations or prospects of
such Person and its subsidiaries, taken as a whole (and in the case of a
"Material Adverse Effect on the Friess Companies" or a "Material Adverse Effect
on the LLCs", shall mean the Friess Companies or the LLCs, as applicable, in
either case taken together as a whole).
"MULTIEMPLOYER PLAN" shall have the meaning specified in Section
3.24(g)(iv) hereof.
"MUTUAL FUND" shall have the meaning specified in Section 3.7(d)
hereof.
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"MUTUAL FUND AGREEMENTS" have the meaning specified in Section
3.29(a) hereof.
"MUTUAL FUND BOARD APPROVAL" shall have the meaning specified in
Section 5.2(c) hereof.
"MUTUAL FUND FINANCIAL STATEMENT" shall have the meaning specified
in Section 3.29(i) hereof.
"MUTUAL FUND SHAREHOLDER APPROVAL" shall have the meaning specified
in Section 5.2(c) hereof.
"MUTUAL FUND TAX RETURNS" shall have the meaning specified in
Section 3.29(g) hereof.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"NCCF" shall have the meaning specified in the preamble hereto.
"NEW ADV" shall have the meaning specified in Section 5.3(a) hereof.
"NEW ADVISORY CONTRACT" shall have the meaning specified in Section
5.2(a) hereof.
"NEW CONTRACT CLIENT" shall have the meaning specified in Section
5.2(a) hereof.
"NON-SOLICITATION AGREEMENTS" shall have the meaning specified in
the recitals hereto.
"PERSON" shall mean any individual, partnership (general or
limited), corporation, limited liability company, limited liability partnership,
association, trust, joint venture, unincorporated organization, and any
government, governmental department or agency or political subdivision thereof.
"POST-CLOSING TRUE-UP PAYMENT" shall mean the product of:
(a) 10.7, multiplied by
(b) the Applicable Closing Excluded Contract Value, multiplied by
(c) 0.625, multiplied by
(d) 0.51.
"POST-SUBSEQUENT CLOSING TRUE-UP PAYMENT" shall mean the amount
that, but for the operation of clauses (I) and (II) of the first proviso
contained in paragraph (a)(ii) of the definition of WY LLC Subsequent Purchase
Price resulting in the exclusion of certain Advisory Contracts (other than
Advisory Contracts with Related Clients or Mutual Funds) from the
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calculation of the WY LLC Subsequent Closing Purchase Price, would have been
paid to the WY LLC at the Subsequent Closing as part of the WY LLC Subsequent
Closing Purchase Price if (as applicable):
(a) (I) in the case of any Advisory Contract excluded from the
calculation of the WY LLC Subsequent Purchase Price by the operation of
clause (I) of the first proviso contained in paragraph (a)(ii) of such
definition, the Client party thereto had not, prior to the Subsequent
Closing Date, reduced or expressed an intent to reduce (which statement of
intent has not been withdrawn prior to the Subsequent Closing True-Up
Date) by more than 15% its assets under management by the WY LLC pursuant
to such Advisory Contract, or to reduce by more than 15% the fee payable
to the WY LLC pursuant to such Advisory Contract, and (II) as of the
Subsequent Closing True-Up Date, such Advisory Contract has not been
terminated (and the Client party thereto has not expressed an intent to
terminate such Advisory Contract); PROVIDED, HOWEVER, that the
Post-Subsequent Closing True-Up Payment calculated pursuant to this clause
(a) in respect of such Advisory Contract shall be calculated using the
assets under management and fee schedule in effect pursuant to such
Advisory Contract as of the Subsequent Closing True-Up Date (rather than
the assets under management and fee schedule in effect as of three (3)
business days prior to the Subsequent Closing Date); or
(b) in the case of any Advisory Contract excluded from the
calculation of the WY LLC Subsequent Purchase Price by the operation of
clause (II) of the first proviso contained in paragraph (a)(ii) of such
definition, any funds actually on deposit with the WY LLC for management
pursuant to such Advisory Contract as of the Subsequent Closing True-Up
Date had instead been on deposit with the WY LLC pursuant to such Advisory
Contract as of three (3) business days prior to the Subsequent Closing
Date (and managed at the fee schedule in effect pursuant to such Advisory
Contract as of the Subsequent Closing True-Up Date, subject to the
following proviso);
PROVIDED, HOWEVER, that, with respect to both clause (a) and clause (b) of
this definition, the assets under management and fee schedule payable
pursuant to any such Advisory Contract also shall be reduced (but, for the
avoidance of doubt, in no event increased) for purposes of calculating the
Post-Subsequent Closing True-Up Payment payable in respect thereof to the
extent that the Client party thereto has, on or prior to the Subsequent
Closing True-Up Date expressed (and not subsequently withdrawn) an intent
to reduce such assets under management or fee schedule in effect pursuant
to such Advisory Contract (but not yet effected such reduction in its
entirety).
"PRE-CLOSING TAX PERIOD" shall have the meaning specified in Section
6.2 hereof.
"PURCHASE" shall have the meaning specified in Section 1.1(iv)
hereof.
"PURCHASE PRICE ALLOCATION" shall have the meaning specified in
Section 1.2(e) hereof.
"REAL PROPERTY" shall have the meaning specified in Section
3.6(a)(i) hereof.
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"REDUCTION AMOUNT" shall have the meaning specified in Section
1.2(b) hereof.
"RELATED CLIENT" shall have the meaning specified in Section
3.7(a)(i) hereof.
"RESTATED DE LLC AGREEMENT" shall have the meaning specified in
Section 2.4 hereof.
"RESTATED LLC AGREEMENTS" shall have the meaning specified in
Section 2.4 hereof.
"RESTATED WY LLC AGREEMENT" shall have the meaning specified in
Section 2.4 hereof.
"RETAINED DE LLC INTEREST" shall have the meaning specified in
Section 1.1(iii) hereof.
"RETAINED LLC INTERESTS" shall have the meaning specified in Section
1.1(iii) hereof.
"RETAINED WY LLC INTEREST" shall have the meaning specified in
Section 1.1(i) hereof.
"SEC" shall mean the Securities and Exchange Commission, or any
successor agency thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933, as the same
may be amended from time to time, and any successor to such act.
"SECURITIES PURCHASE AGREEMENTS" shall mean each of the agreements
identified as a "Securities Purchase Agreement" on Schedule 3.15 hereto.
"STOCKHOLDERS" shall have the meaning specified in the preamble
hereto.
"SUBADVISED FUND" shall mean any Mutual Fund to which any of the
Friess Companies or the LLCs acts as a subadvisor and which is not sponsored by
any of them.
"SUBSEQUENT CLOSING" shall have the meaning specified in Section
12.3 hereof.
"SUBSEQUENT CLOSING DATE" shall have the meaning specified in
Section 12.3 hereof.
"SUBSEQUENT PURCHASE" shall have the meaning specified in Section
12.1(ii) hereof.
"SUBSEQUENT PURCHASE PRICE" shall mean the sum of (i) the WY LLC
Subsequent Purchase Price, plus (ii) the DE LLC Subsequent Purchase Price plus
(iii) the Post-Subsequent Closing True-Up Payment (if any).
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"SUBSEQUENT CLOSING TRUE-UP DATE" shall have the meaning specified
in Section 12.2(b) hereof.
"TAX AUDIT" shall have the meaning specified in Section 6.3 hereof.
"TAX RETURN" shall mean any federal, state, local or foreign return,
declaration, report, claim for refund or information return or statement
relating to Taxes, including any schedule or attachment thereto and including
any amendment thereof.
"TAXES" shall have the meaning specified in Section 3.9(a) hereof.
"TAXING AUTHORITY" shall have the meaning specified in Section
3.9(c) hereof.
"TOTAL PURCHASE PRICE" shall mean the sum of (i) the Closing
Purchase Price plus (ii) the Subsequent Purchase Price.
"TRANSACTION DOCUMENTS" shall mean, collectively, this Agreement and
each of the other agreements, documents, instruments, certificates, exhibits and
schedules delivered by any of the Friess Companies, the LLCs, the Charities, the
Stockholders or the Management Owners pursuant to or as contemplated by this
Agreement (including without limitation the Restated LLC Agreements, the
Employment Agreements and the Non-Solicitation Agreements).
"UPDATED SCHEDULE 3.7" shall mean, with respect to any particular
"Updated Schedule 3.7" required to be delivered pursuant to this Agreement, a
written schedule containing all of the information required by Section 3.7(a)
hereof set forth as of the applicable date in connection with which such
"Updated Schedule 3.7" is being delivered, rather than the Base Date), delivered
to AMG at the time provided herein for the delivery of such particular "Updated
Schedule 3.7".
"WY LLC" shall have the meaning specified in the recitals hereto.
"WY LLC ASSET TRANSFER" shall have the meaning specified in Section
2.2 hereof.
"WY LLC ASSET TRANSFER AGREEMENTS" shall have the meaning specified
in Section 2.2 hereof.
"WY LLC CLOSING PURCHASE PRICE" shall mean an amount equal to (i)
the sum of (A) two hundred forty-seven million two hundred forty-six thousand
two hundred one dollars ($247,246,201.00) plus (B) fifty percent (50%) of the
costs and expenses of printing and mailing the proxy statement(s) and hiring a
proxy solicitor in connection with obtaining the Mutual Fund Shareholder
Approvals (PROVIDED that the 50% of the costs and expenses described in this
clause (B) shall in no event exceed fifty thousand dollars ($50,000.00)),
subject to reduction as set forth in Section 1.2(b) hereof, minus (ii) the sum
of (A) the DE LLC Closing Purchase Price plus (B) the Management Owner Purchase
Price.
"WY LLC INTERESTS" shall have the meaning specified in the recitals
hereto.
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"WY LLC PURCHASE" shall have the meaning specified in Section
1.1(ii) hereof.
"WY LLC PURCHASE PRICE ALLOCATION" shall have the meaning specified
in Section 1.2(e) hereof.
"WY LLC SUBSEQUENT PURCHASE PRICE" shall mean an amount equal to:
(a) the product of:
(i) 10.7, multiplied by
(ii) the positive difference (if any) of (A) the sum of the annual
advisory and other asset-based fees (other than any incentive or
performance-based fees) payable to the WY LLC (or any Controlled Affiliate
thereof) as of the third business day preceding the Subsequent Closing
Date pursuant to Advisory Contracts in effect as of such third preceding
business day (based upon the fee schedule set forth in each such Advisory
Contract (taking into account any applicable caps, waivers, reimbursements
or other reductions) and the assets under management pursuant to such
Advisory Contract as of such third preceding business day), minus (B) the
amount by which the combined actual expenses of the WY LLC, the DE LLC and
any Controlled Affiliates (as defined in the applicable Restated LLC
Agreement) thereof (determined on an accrual basis in accordance with GAAP
consistently applied) exceeded the Operating Allocation (as defined in the
Restated WY LLC Agreement) of the WY LLC (including any previously
reserved Operating Allocation) during the twelve (12) months ending on the
last day of the calendar quarter immediately preceding the calendar
quarter in which the Subsequent Closing Date occurs; PROVIDED, HOWEVER,
that (I) any Advisory Contract with any Client of the WY LLC who has,
within the three (3) months immediately preceding the Subsequent Closing
Date, reduced, or expressed (and not subsequently withdrawn such statement
of intention prior to three (3) business days preceding the Subsequent
Closing Date) an intent to reduce, (1) its assets under management by the
WY LLC by more than 15% (such 15% to be measured from the amount of assets
under management by the WY LLC pursuant to such Advisory Contract as of
three (3) months preceding the Subsequent Closing Date (in the case of any
Advisory Contract that was in effect as of three (3) months prior to the
Subsequent Closing Date) or on the date such Advisory Contract was entered
into by the WY LLC (in the case of any Advisory Contract that became
effective less than three (3) months prior to the Subsequent Closing
Date), or (2) the fee schedule in effect under such Advisory Contract by
more than 15% (such 15% to be measured from the fee schedule in effect
under such Advisory Contract as of three (3) months preceding the
Subsequent Closing Date (in the case of any Advisory Contract that was in
effect as of three (3) months prior to the Subsequent Closing Date) or on
the date such Advisory Contract was entered into by the WY LLC (in the
case of any Advisory Contract that became effective less than three (3)
months prior to the Subsequent Closing Date), (II) any Advisory Contract
that has been executed and delivered within the three (3) months
immediately preceding the Subsequent Closing by the WY LLC and by the
Client party thereto in respect of which no funds were deposited by the
Client with the WY LLC prior to three (3) business days immediately
preceding the Subsequent Closing,
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and (III) any Advisory Contract with any Client of the WY LLC who has,
within the three (3) months immediately preceding the Subsequent Closing
Date, expressed (and not subsequently withdrawn such statement of
intention prior to three (3) business days preceding the Subsequent
Closing Date) an intent to terminate its Advisory Contract with the WY
LLC, each shall be excluded from the calculation of the WY LLC Subsequent
Purchase Price; and PROVIDED, FURTHER, that Advisory Contracts with
Related Clients (or with Mutual Funds or other collective investment
vehicles in which Related Clients are investors, to the extent of the
investments by such Related Clients) shall be excluded from the
calculation of the WY LLC Subsequent Purchase Price to the extent the
aggregate annual advisory and other asset-based fees (other than any
incentive or performance-based fees) payable thereunder exceeds
$275,000,000;
multiplied by
(iii) a fraction, the numerator of which is the number of LLC Points
(as defined in the Restated WY LLC Agreement) of the WY LLC to be
purchased on the Subsequent Closing Date, and the denominator of which is
the number of LLC Points of the WY LLC outstanding (as determined pursuant
to the Restated WY LLC Agreement) on the Subsequent Closing Date (before
giving effect to any issuances or redemptions of LLC Points on such date),
multiplied by
(iv) 0.625, minus
(b) the DE LLC Subsequent Purchase Price.
SECTION 15. MISCELLANEOUS.
15.1 FEES AND EXPENSES. The rights and obligations of the parties
hereto with respect to fees and expenses are as follows:
(a) AMG shall pay its own expenses incident to the negotiation and
consummation of the transactions contemplated by this Agreement and the
agreements, instruments and documents contemplated hereby. The Stockholders, the
Charities and the Friess Companies shall pay their own expenses and the expenses
of each of the LLCs, each of the Stockholders and each of the Mutual Funds
(including without limitation all expenses relating to the obtaining of its
Mutual Fund Board Approval and Mutual Fund Shareholder Approval, which shall be
reimbursed to the Mutual Funds by the Stockholders, the Charities and the Friess
Companies promptly upon the incurrence thereof) incident to the negotiation and
consummation of the transactions contemplated by this Agreement and the
agreements, instruments and documents contemplated hereby.
(b) The Friess Companies, the Stockholders and the Charities will
pay all costs incurred, whether at or subsequent to the Closing, in connection
with the transfer of LLC Interests to AMG as contemplated by this Agreement,
including without limitation, all transfer and other Taxes and charges
applicable to such transfer, and all costs of obtaining permits,
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waivers, registrations or consents with respect to any assets, rights or
contracts of the Friess Companies in connection with the transactions
contemplated hereby (and the parties hereto shall promptly reimburse the other
parties hereto upon request with respect to the expenses to be borne by them as
described in this paragraph).
15.2 DISPUTE RESOLUTION. All disputes arising in connection with
this Agreement shall be resolved by binding arbitration in accordance with the
applicable rules of the American Arbitration Association. The arbitration shall
be held in Wilmington, Delaware before a single arbitrator selected in
accordance with Section 12 of the American Arbitration Association Commercial
Arbitration Rules who shall have substantial business experience in the
investment advisory industry, and shall otherwise be conducted in accordance
with the American Arbitration Association Commercial Arbitration Rules. The
parties covenant that they will participate in the arbitration in good faith and
that they will share equally its costs except as otherwise provided herein. The
provisions of this Section 15.2 shall be enforceable in any court of competent
jurisdiction, and the parties shall bear their own costs in the event of any
proceeding to enforce this Agreement except as otherwise provided herein. The
arbitrator shall assess costs and expenses (including the reasonable legal fees
and expenses of the prevailing party or parties and any expenses incurred in
connection with compelling arbitration) in favor of the prevailing party or
parties against the other party or parties to such proceeding. Any party
unsuccessfully refusing to comply with an order of the arbitrators shall be
liable for costs and expenses, including attorneys' fees, incurred by the other
party in enforcing the award.
15.3 WAIVERS. Any waiver of any terms or conditions or of the breach
of any covenant, agreement, representation or warranty of this Agreement in any
one instance, shall not operate as or be deemed to be or construed as a further
or continuing waiver of any other breach of such term, condition, covenant,
representation or warranty or any other term, condition, covenant, agreement,
representation or warranty, nor shall any failure or delay at any time or times
to enforce or require performance of any provision hereof operate as a waiver of
or affect in any manner a party's right at a later time to enforce or require
performance of such provision or of any provision hereof; PROVIDED, HOWEVER,
that no such waiver, unless it, by its own terms, explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provision
being waived and no such waiver in any instance shall constitute a waiver in any
other instance or for any other purpose or impair the right of the party against
whom such waiver is claimed in all other instances or for all other purposes to
require full compliance.
15.4 GOVERNING LAW. This Agreement shall be construed under and
governed by the laws of the State of New York.
15.5 NOTICES. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been given if delivered or sent by facsimile transmission, upon receipt, or if
sent by registered or certified mail, upon the sooner of the date on which
receipt is acknowledged or the expiration of three (3) days after deposit in
United States post office facilities properly addressed with postage prepaid.
All notices to a party will be sent to the addresses set forth below or to such
other address or person as such party may designate by notice to each other
party hereunder:
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TO AMG: Affiliated Managers Group, Inc.
Two International Place, 23rd Floor
Boston, MA 02110
Attn: Nathaniel Dalton, Executive Vice President
Facsimile No.: (617) 747-3380
With a copy to: Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017
Attn: Robert D. Goldbaum
Facsimile No.: (212) 455-2502
TO THE FRIESS COMPANIES: Friess Associates, Inc.
115 E. Snow King Avenue
PO Box 576
Jackson, WY 83001
Attn: Foster S. Friess
Facsimile No.: (307) 734-1971
With a copy to: Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Attn: Ralph Arditi
Facsimile No.: (212) 735-2000
TO THE CHARITIES: NCCF Support, Inc.
1100 Johnson Ferry Road
Suite 900
Atlanta, GA 30342
Attn: David H. Wills, General Counsel
Facsimile No.: (404) 252-5177
Community Foundation of Jackson Hole
P.O. Box 574
Jackson, WY 83001
Attn: William Field
Facsimile No.: (307) 734-2841
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With a copy to: Faegre & Benson LLP
2200 Wells Fargo Center
90 South 7th Street
Minneapolis, MN 55402
Attn: Hazen Graves
Facsimile No.: (612) 766-1600
TO ANY STOCKHOLDER:
To that Stockholder at the address set forth
under such Stockholder's name on SCHEDULE 1.2
hereto.
In each case, with a copy to:
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
15.6 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits referred to herein and the other writings specifically identified
herein or contemplated hereby, is complete, reflects the entire agreement of the
parties with respect to its subject matter, and supersedes all previous written
or oral negotiations, commitments and writings (PROVIDED that the existing
confidentiality agreement between AMG and certain of the parties hereto shall
survive until the earlier of the Closing or expiration in accordance with its
terms, at which time it shall expire). No promises, representations,
understandings, warranties and agreements have been made by any of the parties
hereto except as referred to herein or in such Schedules and Exhibits or in such
other writings; and all inducements to the making of this Agreement and the
transactions contemplated hereby which were relied upon by any party hereto have
been expressed herein or in such Schedules or Exhibits or in such other
writings.
15.7 ASSIGNABILITY; BINDING EFFECT. This Agreement or any of the
obligations or rights hereunder: (a) may not be assigned by AMG, without the
prior written consent of the Friess Companies (on their own behalf and on behalf
of the Stockholders and the Charities), other than to an entity under the
control of AMG (for which consent shall not be required), and it being further
understood and agreed that AMG shall be permitted at any time (i) prior to the
Closing (in the case of AMG's Closing obligations hereunder), or (ii) prior to
the Subsequent Closing (in the case of AMG's Subsequent Closing obligations
hereunder, (in either such case without the consent of any other party hereto)
to designate another direct or indirect subsidiary of AMG to replace FA (WY)
Acquisition and/or FA (DE) Acquisition for any purpose hereunder; PROVIDED that,
in all cases, no such assignment by AMG shall relieve AMG of its obligations
under this Agreement; and (b) may not be assigned by any of the Stockholders,
the Friess Companies or the Charities without the prior written consent of AMG.
This Agreement shall be binding upon and enforceable by, and shall inure to the
benefit of, the parties hereto and their respective successors, heirs,
executors, administrators and permitted assigns.
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15.8 CAPTIONS AND GENDER. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
15.9 EXECUTION IN COUNTERPARTS. For the convenience of the parties
and to facilitate execution, this Agreement may (a) be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document, and (b) be executed by facsimile.
15.10 AMENDMENTS. This Agreement may not be amended or modified, nor
may compliance with any condition or covenant set forth herein be waived, except
by a writing duly and validly executed by AMG and each of the Friess Companies
(on their own behalf and on behalf of each of the Stockholders and the
Charities); for all purposes of this Agreement, any amendment or modification of
this Agreement, or waiver of any provision hereof, executed by each of the
Friess Companies shall be binding upon both of the Friess Companies and upon
each of the Stockholders and the Charities, and the Friess Companies shall be
authorized to so bind each of the Stockholders and Charities thereby.
15.11 PUBLICITY AND DISCLOSURES. No press releases or public
disclosure, either written or oral, of the transactions contemplated by this
Agreement, shall be made by a party to this Agreement or any representative or
agent thereof without the prior written consent of AMG and each of the Friess
Companies, which consent shall not be unreasonably withheld, except as is
otherwise required by applicable laws, rules and regulations (including, without
limitation, the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder).
15.12 CONSENT TO JURISDICTION. Each of the parties hereby consents
to personal jurisdiction, service of process and venue in the federal or state
courts of Delaware for any claim, suit or proceeding arising under this
Agreement and hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such state's courts or, to
the extent permitted by law, in any federal court sitting in such state (in each
case subject to Section 15.2 hereof). Each of the parties hereby irrevocably
consents to the service of process in any such action or proceeding by the
mailing by certified mail of copies of any service or copies of the summons and
complaint and any other process to such party at the address specified in
Section 15.5 hereof. The parties agree that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit or in any other manner permitted by law, and nothing contained herein shall
affect the right of a party to service of legal process or to bring any action
or proceeding in the courts of other jurisdictions (subject to Section 15.2
hereof).
[END OF TEXT]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be executed as of the date set forth above by their duly authorized
representatives.
AFFILIATED MANAGERS GROUP, INC.
By: /s/ Seth W. Brennan
-------------------------------
Name: Seth W. Brennan
Title: Executive Vice President
FRIESS ASSOCIATES, INC.
By: /s/ Foster S. Friess
-------------------------------
Name: Foster S. Friess
Title: President
FRIESS ASSOCIATES OF DELAWARE, INC.
By: /s/ Foster S. Friess
-------------------------------
Name: Foster S. Friess
Title: President
NCCF SUPPORT, INC.
By: /s/ David H. Wills
-------------------------------
Name: David H. Wills
Title: President
THE COMMUNITY FOUNDATION OF
JACKSON HOLE
By: /s/ Carol A. Gonnella
-------------------------------
Name: Carol A. Gonnella
Title: Secretary
<Page>
/s/ Foster S. Friess
--------------------------------------
Foster S. Friess
/s/ Lynnette E. Friess
--------------------------------------
Lynnette E. Friess
FRIESS ASSOCIATES, LLC
By: /s/ Foster S. Friess
----------------------------------
Name: Foster S. Friess
Title: President
FRIESS ASSOCIATES OF DELAWARE, LLC
By: /s/ Foster S. Friess
----------------------------------
Name: Foster S. Friess
Title: President