agreements amending such agreements, including the AuM Amendment Agreements (together, the “ Amendments ”); and

 

WHEREAS, for U.S. federal income tax purposes, the parties intend that the JV Interest Exchange be treated as a taxable exchange in which gain or loss is recognized.

 

NOW, THEREFORE, the parties, in consideration of their mutual promises and intending to be legally bound, agree as follows:

 

ARTICLE I.
DEFINITIONS AND USAGE

 

Section 1.1.            Definitions.  For purposes of this Agreement, the following terms and variations thereof have the meanings specified or referred to in this Section 1.1 :

 

“ Acquirors ” — as defined in the caption to this Agreement.

 

“ Adjusted Number of Shares ” — as defined in Section 2.1(a) .

 

“ Affiliate ” — means , with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; provided , that, for purposes of this Agreement no UniCredit Party nor any of their respective controlled affiliates shall be deemed to be Affiliates of Ramius and none of Ramius or any of its Subsidiaries shall be deemed to be Affiliates of any UniCredit Party.

 

“ Agreement ” — as defined in the caption to this Agreement.

 

“ Amendments ” — as defined in the Recitals, such term to include the Ramius Security Agreement (as defined therein).

 

“ Ancillary Agreements ” — means the Amendments, the Assignment, the Fourth Amended and Restated Ramius LLC Agreement, the Joinder Agreement, the Registration Rights Agreement and, to the extent applicable, the JV Note and the JV Note Security Agreement.

 

“ Assignment ” — as defined in Section 2.3(a)(i) .

 

“ AuM Amendment Agreements ” — means that certain Second Amendment to the Investment Reporting Agreement by and between HVB AG and Ramius HVB Partners, LLC and that certain Amendment to the Amended and Restated Investment Management Agreement by and between Bank Austria Cayman Islands Limited and Ramius, each dated as of the date hereof.

 

“ Base Number of Shares ” — as defined in Section 2.1(a) .

 

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“ BHC Act ” — the Bank Holding Company Act of 1956, as amended.

 

“ Breach ” — any breach of, or any inaccuracy in, any representation or warranty or any breach of, or failure to perform or comply with, any covenant or obligation, in or of this Agreement or any other Contract, or any event which with the passing of time or the giving of notice, or both, would constitute such a breach, inaccuracy or failure.

 

“ Change of Control ” — the occurrence of any merger, consolidation, tender offer, or any other transaction resulting in the stockholders of New Parent immediately before such transaction owning less than a majority of the aggregate voting power of the resultant entity or any sale of all or substantially all of the assets of New Parent;

 

“ Class A Common Stock ” — as defined in the Recitals.

 

“ Class B Common Stock ” — means Class B Common Stock, par value $0.01 per share, of New Parent.

 

“ Closing ” — as defined in Section 2.2 .

 

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

“ Common Stock ” — means the Common Stock of New Parent.

 

“ Common Stock Consideration ” — as defined in Section 2.1(a) .

 

“ Contract ” — any contract, lease or other agreement (whether written or oral).

 

“ Cowen ” — as defined in the caption to this Agreement.

 

“ Debt Consideration ” — as defined in Section 2.1(a) .

 

“ Encumbrance ” — any lien, option, pledge, security interest, mortgage, right of way, easement, encroachment, servitude, right of first option, right of first refusal or similar restriction; provided that, in respect of the JV Interest, such term shall not include restrictions pursuant to the JV LLC Agreement or state or federal securities laws, and in respect of the Exchange Consideration, such term shall not include restrictions pursuant to federal or state securities laws.

 

“ Exchange Act ” — means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the SEC.

 

“ Exchange Consideration ” — as defined in the Recitals.

 

“ Governing Documents ” — with respect to any particular entity, (a) if a corporation, the articles or certificate of incorporation and the bylaws; (b) if a general partnership, the partnership agreement and any statement of partnership; (c) if a limited partnership,  the limited partnership agreement and the certificate of limited partnership; (d) if a limited liability company, the certificate of formation and operating agreement; (e) if another

 

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type of Person, any other charter or similar document adopted or filed in connection with the creation, formation or organization of the Person; (f) all equityholders’ agreements, voting agreements, voting trust agreements or other similar agreements or documents relating to the organization, management or operation of any Person; and (g) any amendment or supplement to any of the foregoing.

 

“ Governmental Authorization ” — any consent, license, registration or permit issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Law.

 

“ Governmental Body ” — any international, federal, state, local, municipal, foreign or other governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court, tribunal or other entity exercising governmental or quasi-governmental powers) or exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power.

 

“ HVB AG ” — as defined in the caption to this Agreement.

 

“ HVB Solicitation Agreement ” — means that certain Solicitation Agreement, dated as of December 31, 2004, by and between Ramius HVB Partners, LLC and HVB AG.

 

“ Insider Trading Policy ” — means that certain Insider Trading Policy of New Parent attached as Exhibit B hereto.

 

“ Joinder Agreement ” — the Joinder Agreement to the JV LLC Agreement in the form of Exhibit A hereto.

 

“ JV ” — as defined in the Recitals.

 

“ JV Acquiror ” — as defined in the caption to this Agreement.

 

“ JV Funds ” — means investment funds managed by the JV or its Subsidiaries.

 

“ JV Interest ” — as defined in the Recitals.

 

“ JV Interest Exchange ” — as defined in the Recitals.

 

“ JV Investment Management Agreement ” — means the Investment Reporting Agreement, dated as of July 29, 2005 between the JV and HVB AG, as thereafter amended (including the date hereof).

 

“ JV LLC Agreement ” — as defined in the Recitals.

 

“ JV Note ” — means the promissory note, in a principal amount equal to the JV Principal Amount, in the form attached as Exhibit C hereto.

 

“ JV Note Security Agreement ” — means the security agreement in a form substantially identical to the Security Agreement attached to the Secured Revolving Credit

 

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Agreement dated as of June 3, 2009, by and among Ramius, as borrower, and Bayerische Hypo-und Vereinsbank AG, New York Branch as administrative agent, issuing bank and lender, to be executed and delivered at Closing pursuant to the JV Note if the New Parent Revolver Execution does not occur.

 

“ JV Principal Amount ” — means $10,370,032, as such amount shall be adjusted if required pursuant to Section 2.1(b).

 

“ JV Secured Revolving Loan Agreements ” — means those agreements listed on Schedule 1.1-A hereto.

 

“ Law ” — means any foreign, federal, state, or local law, statute, code, ordinance, rule, regulation or other requirement.

 

“ Lender ” — means Bayerische Hypo -un Vereinsbank AG, New York Branch.

 

“ Liability ” — with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.

 

“ Lock-up Termination Event ” — means any of the following: (a) a material breach by Ramius of any of the following agreements: the Ramius Revolving Credit Agreement (or any replacement facility provided by the Lender), the JV Secured Revolving Credit Agreement, this Agreement, the Investment Reporting Agreement by and between HVB AG and Ramius HVB Partners, LLC, as amended, the Ramius Investment Management Agreement, as amended, the JV Investment Management Agreement, as amended, the Fourth Amended and Restated Ramius LLC Agreement and, in each case if applicable, the JV Note and the New Parent Revolver, which breach has remained uncured for a period of 10 days after receipt by Ramius of written notice of such breach; (b) unless the UniCredit Parties and their Affiliates beneficially own, in the aggregate, less than 4.9% of the outstanding Common Stock throughout any consecutive ninety (90) day period, the failure of the Managing Member to vote all of the shares of Class A Common Stock held by Ramius in favor of the election to the board of directors of New Parent of the Board Designee; (c) if the Managing Member ceases to be controlled by at least two of Peter A. Cohen, Morgan B. Stark, Thomas W. Strauss and Jeffrey Solomon; or (d) a Change of Control.

 

“ Managing Member ” — as defined in the Ramius LLC Agreement.

 

“ Material Adverse Effect ” — means with respect to Ramius or Transferor, as the case may be, any event, change, circumstance or development which has or is reasonably likely to have a material adverse effect on (i) the financial condition, results of operations or business of such party and its Subsidiaries taken as a whole; provided , however , that, with respect to clause (i), the term “Material Adverse Effect” shall not include any effects resulting from (A) changes, after the date hereof, in GAAP or regulatory accounting requirements applicable generally to companies in the industries in which such party and its Subsidiaries operate,

 

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(B) changes, after the date hereof, in laws, rules, regulations or the interpretation of laws, rules or regulations by Governmental Bodies of general applicability to companies in the industries in which such party and its Subsidiaries operate, (C) actions or omissions taken with the prior written consent of the other party or expressly required by this Agreement, (D) changes in global, national or regional political conditions (including acts of terrorism or war) or general business, economic or market conditions, including changes generally in prevailing interest rates, currency exchange rates, credit markets and price levels or trading volumes in the United States or foreign securities markets, in each case generally affecting the industries in which such party or its Subsidiaries operate and including changes to any previously correctly applied asset marks resulting therefrom, (E) the execution of this Agreement or the public disclosure of this Agreement or the transactions contemplated hereby, including losses of employees to the extent resulting therefrom, (F) failure, in and of itself, to meet earnings projections, but not including any underlying causes thereof, (G) changes in the trading price of a party’s common stock, in and of itself, but not including any underlying causes or (H) in the case of Ramius and its Subsidiaries, withdrawals from the Funds that are consistent with withdrawals from the Funds over the past twelve months, except, with respect to clauses (A), (B) and (D), to the extent that the effects of such change are materially and disproportionately adverse to the financial condition, results of operations or business of such party and its Subsidiaries, taken as a whole, as compared to other companies in the industry in which such party and its Subsidiaries operate or (ii) the ability of such party to timely consummate the transactions contemplated by this Agreement.

 

“ New Parent ” — as defined in the caption to this Agreement.

 

“ New Parent Parties ” — as defined in the caption to this Agreement.

 

“ New Parent Revolver ” — means the $25,000,000 secured revolving credit facility that may be entered into by the Lender and New Parent on or immediately prior to the Closing.

 

“ New Parent Revolver Execution ” — as defined in Section 2.1(a).

 

“ Order ” — any order, injunction, judgment, decree, ruling, assessment or arbitration award of any Governmental Body or arbitrator.

 

“ Ordinary Course of Business ” — means, with respect to any Person, the ordinary and usual course of business of such Person consistent with its past practice through the date hereof.

 

“ Person ” — any individual, partnership, limited liability company, joint venture, corporation, trust, government (or agencies or political subdivisions thereof) and other association or entity.

 

“ Ramius ” — as defined in the caption to this Agreement.

 

“ Ramius Asset Exchange ” — as defined in the Recitals.

 

“ Ramius Funds ” — means investment funds managed by Ramius or its Subsidiaries.

 

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“ Ramius Investment Management Agreement ” — means the Amended and Restated Investment Management Agreement, dated as of June 3, 2003, between Ramius (f/k/a Ramius Capital Group, LLC) and Bank Austria Cayman Islands Limited, as hereafter amended (including on the date hereof).

 

“ Ramius LLC Agreement ” — means the Third Amended and Restated Limited Liability Company Agreement of Ramius, dated as of January 1, 2007.

 

“ Ramius Parties ” — as defined in the Recitals.

 

“ Ramius Revolving Credit Agreement &rd