Exhibit 2.1

 

 

 

BUSINESS COMBINATION AGREEMENT

by and among

ALTIMAR ACQUISITION CORPORATION,

OWL ROCK CAPITAL GROUP LLC,

OWL ROCK CAPITAL FEEDER LLC,

OWL ROCK CAPITAL PARTNERS LP,

and

NEUBERGER BERMAN GROUP LLC

DATED AS OF DECEMBER 23, 2020

 

 

 


Table of Contents

 

         Page  
Article I       
CERTAIN DEFINITIONS       

Section 1.1

  Certain Definitions      4  
Article II   
PURCHASE AND SALE TRANSACTIONS   

Section 2.1

  Diamond and Opal Reorganizations      47  

Section 2.2

  Buyer Domestication      49  

Section 2.3

  Contribution of Opal Business      50  

Section 2.4

  Contribution of Diamond Business      53  

Section 2.5

  Closing Statements      54  

Section 2.6

  Closing Issuances      55  

Section 2.7

  Closing Payments      58  

Section 2.8

  Closing Transactions      58  

Section 2.9

  Conditions to the Obligations of Each Party      60  

Section 2.10

  Conditions to Obligations of the Buyer      61  

Section 2.11

  Conditions to Obligations of Nephrite      62  

Section 2.12

  Conditions to Obligations of Opal      64  

Section 2.13

  Frustration of Closing Conditions      66  

Section 2.14

  Waiver of Closing Conditions      66  

Section 2.15

  Delayed Transfer      66  

Section 2.16

  Post-Closing True-Ups.      66  

Section 2.17

  Earnout      68  

Section 2.18

  Withholding      71  
Article III   
REPRESENTATIONS AND WARRANTIES REGARDING THE DIAMOND BUSINESS   

Section 3.1

  Organization; Authority; Enforceability      72  

Section 3.2

  Capitalization and Related Matters      72  

Section 3.3

  No Breach      73  

Section 3.4

  Financial Statements and Related Matters      74  

Section 3.5

  Absence of Undisclosed Liabilities      75  

Section 3.6

  No Diamond Material Adverse Effect      75  

Section 3.7

  Absence of Certain Developments      75  

Section 3.8

  Diamond Assets      75  

Section 3.9

  Tax Matters      75  

Section 3.10

  Diamond Material Contracts      78  

Section 3.11

  Intellectual Property Rights      80  

Section 3.12

  Data Security; Data Privacy      81  

Section 3.13

  Litigation      82  

 

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Section 3.14

  Brokerage      82  

Section 3.15

  Labor Matters      82  

Section 3.16

  Employee Benefits      85  

Section 3.17

  Compliance with Laws; Permits      86  

Section 3.18

  Anti-Bribery; Anti-Corruption      89  

Section 3.19

  Anti-Money Laundering; Sanctions; Customs & Trade Laws      89  

Section 3.20

  Real Property      90  

Section 3.21

  Environmental      90  

Section 3.22

  Affiliate Transactions      91  

Section 3.23

  Investment Advisory Services      91  

Section 3.24

  Insurance      91  

Section 3.25

  Regulatory Compliance      91  

Section 3.26

  Diamond 40 Act Funds      93  

Section 3.27

  Information Supplied      93  

Section 3.28

  Sufficiency of Assets      94  
Article IV   
REPRESENTATIONS AND WARRANTIES REGARDING NEPHRITE   

Section 4.1

  Organization; Authority; Enforceability      94  

Section 4.2

  Capitalization      94  

Section 4.3

  No Breach      95  

Section 4.4

  Litigation      95  

Section 4.5

  Brokerage      95  

Section 4.6

  Investment Intent      95  

Section 4.7

  Compliance with Laws      96  

Section 4.8

  No Undisclosed Agreements or Arrangements      96  

Section 4.9

  Inspections; the Buyer’s Representations      96  
Article V   
REPRESENTATIONS AND WARRANTIES REGARDING THE OPAL BUSINESS   

Section 5.1

  Organization; Authority; Enforceability      97  

Section 5.2

  Capitalization and Related Matters      98  

Section 5.3

  No Breach      99  

Section 5.4

  Financial Statements and Related Matters      99  

Section 5.5

  Absence of Undisclosed Liabilities      100  

Section 5.6

  No Opal Material Adverse Effect      101  

Section 5.7

  Absence of Certain Developments      101  

Section 5.8

  Opal Assets      101  

Section 5.9

  Tax Matters      101  

Section 5.10

  Opal Material Contracts      103  

Section 5.11

  Intellectual Property Rights      106  

Section 5.12

  Data Security; Data Privacy      107  

Section 5.13

  Litigation      107  

Section 5.14

  Brokerage      108  

Section 5.15

  Labor Matters      108  

 

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Section 5.16

  Employee Benefits      109  

Section 5.17

  Compliance with Laws; Permits      111  

Section 5.18

  Anti-Bribery; Anti-Corruption      113  

Section 5.19

  Anti-Money Laundering; Sanctions; Customs & Trade Laws      114  

Section 5.20

  Real Property      114  

Section 5.21

  Environmental      115  

Section 5.22

  Affiliate Transactions      115  

Section 5.23

  Broker-Dealer      115  

Section 5.24

  Investment Advisory Services      116  

Section 5.25

  Insurance      116  

Section 5.26

  Regulatory Compliance      117  

Section 5.27

  Opal 40 Act Funds      118  

Section 5.28

  Information Supplied      120  

Section 5.29

  Sufficiency of Assets      120  
Article VI   
REPRESENTATIONS AND WARRANTIES OF OPAL FEEDER   

Section 6.1

  Organization; Authority; Enforceability      121  

Section 6.2

  Capitalization      121  

Section 6.3

  No Breach      121  

Section 6.4

  Litigation      122  

Section 6.5

  Brokerage      122  

Section 6.6

  Investment Intent      122  

Section 6.7

  Compliance with Laws      123  

Section 6.8

  No Undisclosed Agreements or Arrangements      123  

Section 6.9

  Inspections; the Buyer’s Representations      123  
Article VII   
REPRESENTATIONS AND WARRANTIES OF THE BUYER   

Section 7.1

  Organization; Authorization; Enforceability      124  

Section 7.2

  Capitalization      125  

Section 7.3

  Brokerage      126  

Section 7.4

  Trust Account      126  

Section 7.5

  The Buyer SEC Documents; Controls      127  

Section 7.6

  Information Supplied; Registration Statement      128  

Section 7.7

  Litigation      129  

Section 7.8

  Listing      129  

Section 7.9

  Investment Company      129  

Section 7.10

  Authorization; No Breach      130  

Section 7.11

  Business Activities      130  

Section 7.12

  Acquisition Intent      131  

Section 7.13

  Tax Matters      132  

Section 7.14

  Compliance with Laws      134  

Section 7.15

  Inspections; Nephrite and Opal Representations      134  

Section 7.16

  Subscription Agreements      134  

 

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Section 7.17

  Employee Matters      135  

Section 7.18

  Assets; Title to Assets      135  

Section 7.19

  Related Person Transaction      136  

Section 7.20

  No Undisclosed Agreements or Arrangements      136  
Article VIII   
REPRESENTATIONS AND WARRANTIES OF OPAL PARTNERS   

Section 8.1

  Organization; Authority; Enforceability      136  

Section 8.2

  No Breach      137  

Section 8.3

  Litigation      137  

Section 8.4

  Brokerage      137  

Section 8.5

  Inspections; Buyer’s Representations      137  
Article IX   
INTERIM OPERATING COVENANTS   

Section 9.1

  Interim Operating Covenants of Nephrite      138  

Section 9.2

  Interim Operating Covenants of Opal      143  

Section 9.3

  Interim Operating Covenants of the Buyer      147  
Article X   
PRE-CLOSING AND OTHER COVENANTS   

Section 10.1

  Diamond Client Consents      149  

Section 10.2

  Opal Fund Consents      151  

Section 10.3

  Section 15(f)      155  

Section 10.4

  Commercially Reasonable Efforts; Further Assurances      155  

Section 10.5

  Trust and Closing Funding      155  

Section 10.6

  Listing      156  

Section 10.7

  LTIP      156  

Section 10.8

  Confidential Information      156  

Section 10.9

  Access to Information      156  

Section 10.10

  Notification of Certain Matters      158  

Section 10.11

  Regulatory Approvals; Efforts      159  

Section 10.12

  Communications; Press Release; SEC Filings      161  

Section 10.13

  Expenses      166  

Section 10.14

  D&O Indemnification and Insurance      166  

Section 10.15

  Employee Matters      168  

Section 10.16

  Employee Non-Solicit      172  

Section 10.17

  Equity Financing; Cooperation      172  

Section 10.18

  Stock Transactions      174  

Section 10.19

  The Buyer Certificate of Incorporation and the Buyer Bylaws      174  

Section 10.20

  Name Change      174  

Section 10.21

  Exclusivity      175  

Section 10.22

  Diamond Transition Services      175  

Section 10.23

  Treatment of Certain Assets and Liabilities      176  

 

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Section 10.24

  Net Capital Requirements      178  

Section 10.25

  Mixed-Use Contracts      178  

Section 10.26

  Specified Matters      179  

Section 10.27

  FIC Dissolution      179  

Section 10.28

  Placement Agreement      179  

Section 10.29

  Participation Agreement      180  

Section 10.30

  Net Working Capital; Indebtedness      180  

Section 10.31

  Aggregator Formation      180  
Article XI   
ADDITIONAL AGREEMENTS   

Section 11.1

  Access to Books and Records      181  

Section 11.2

  Nephrite Name      182  

Section 11.3

  Buyer Name      183  
Article XII   
TAX MATTERS   

Section 12.1

  Tax Returns      183  

Section 12.2

  Cooperation      185  

Section 12.3

  Tax Proceedings      185  

Section 12.4

  Transfer Taxes      186  

Section 12.5

  Intended Tax Treatment      187  

Section 12.6

  Allocation      188  

Section 12.7

  Tax Positions      189  

Section 12.8

  Partnership Tax Audit      189  

Section 12.9

  Tax Refunds      189  
Article XIII   
TERMINATION   

Section 13.1

  Termination      190  

Section 13.2

  Effect of Termination      192  
Article XIV   
INDEMNIFICATION   

Section 14.1

  Indemnification of Nephrite by the Buyer      192  

Section 14.2

  Indemnification of Opal by the Buyer      192  

Section 14.3

  Indemnification by Nephrite      193  

Section 14.4

  Indemnification by Opal      193  

Section 14.5

  Claim Procedures      193  

Section 14.6

  Loss and Recoveries      196  

Section 14.7

  Payments      196  

Section 14.8

  Exclusive Remedies      198  

 

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Article XV       
MISCELLANEOUS       

Section 15.1

  Amendment and Waiver      198  

Section 15.2

  Waiver of Remedies; Survival of Representations and Warranties      199  

Section 15.3

  Notices      199  

Section 15.4

  Assignment      201  

Section 15.5

  Severability      201  

Section 15.6

  Interpretation      202  

Section 15.7

  Entire Agreement      203  

Section 15.8

  Counterparts; Electronic Delivery      203  

Section 15.9

  Governing Law; Waiver of Jury Trial; Jurisdiction      204  

Section 15.10

  Trust Account Waiver      204  

Section 15.11

  Specific Performance      205  

Section 15.12

  No Third-Party Beneficiaries      206  

Section 15.13

  Disclosure Letters and Exhibits      206  

Section 15.14

  No Recourse      207  

Section 15.15

  Legal Representation and Privilege      207  

Section 15.16

  Acknowledgements      211  

Section 15.17

  Equitable Adjustments      213  

 

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EXHIBITS

Exhibit A – Buyer Certificate of Incorporation

Exhibit B – Buyer Bylaws

Exhibit C – Tax Receivable Agreement

Exhibit D – Investor Rights Agreement

Exhibit E – Blue Owl GP LLCA

Exhibit F – Forfeiture and Support Agreement

Exhibit G – Amended & Restated LPA of Blue Owl Holdings

Exhibit H – Amended & Restated LPA of Blue Owl Carry

Exhibit I – Omnibus Incentive Equity Plan

Exhibit J – Exchange Agreement

Exhibit K – Opal Group Blocker Merger Agreement

Exhibit L – Opal Group Surviving LLC Agreement

Exhibit M – Opal Carry Surviving LP Agreement

Annex A – Executed Employment Agreements

 

 

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BUSINESS COMBINATION AGREEMENT

This Business Combination Agreement (as may be further amended, restated or amended and restated from time to time, this “Agreement”) is made and entered into as of December 23, 2020, by and among (i) Altimar Acquisition Corporation, a Cayman Islands exempted company (the “Buyer”), (ii) Owl Rock Capital Group LLC, a Delaware limited liability company (“Opal Group”), (iii) Owl Rock Capital Feeder LLC, a Delaware limited liability company (“Opal Feeder”), (iv) Owl Rock Capital Partners LP, a Delaware limited partnership (“Opal Partners”), and (v) Neuberger Berman Group LLC, a Delaware limited liability company (“Nephrite”). The Buyer, Opal Group, Opal Feeder, Opal Partners and Nephrite are each referred to in this Agreement as a “Party” and collectively as the “Parties.”

RECITALS

 

(A)

WHEREAS, the Buyer is a special purpose acquisition company formed for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses or entities;

 

(B)

WHEREAS, in connection with the Closing, Nephrite and Opal Group will effect reorganization transactions, following which, at the Closing, each of Nephrite and Opal Group will contribute (including, in the case of the Opal Business, through merger) the Diamond Business (which after giving effect to such reorganization transactions will be held by the Diamond Transferred Companies) and the Opal Business (which after giving effect to such reorganization transactions will be held by the Opal Transferred Companies), respectively, to one or more newly formed subsidiaries of the Buyer;

 

(C)

WHEREAS, the transaction as among the Buyer, Nephrite, Opal Group, Blue Owl Capital GP LLC, a to-be-formed Delaware limited liability company as a wholly owned subsidiary of the Buyer (“Blue Owl GP”), Blue Owl Capital Holdings LP, a Delaware limited partnership and to-be-formed subsidiary of the Buyer whose general partner will be Blue Owl GP (“Blue Owl Holdings”), Blue Owl Capital Carry LP, a Delaware limited partnership and to-be-formed subsidiary of the Buyer whose general partner will be Blue Owl GP (“Blue Owl Carry”), will be structured as an umbrella partnership C corporation transaction and each Seller (with respect to the Opal Family, including each Electing Opal Seller and Non-Electing Opal Seller) will also be entitled to the benefits of the Tax Receivable Agreement;

 

(D)

WHEREAS, in connection with the Closing, 100,000,000 Seller Earnout Securities in the aggregate will be issued to the Sellers, subject to certain restrictions and potential forfeiture pending the achievement (if any) of certain earnout targets as further set forth in this Agreement;

 

(E)

WHEREAS, immediately prior to the Closing and subject to the conditions set forth in this Agreement, the Buyer shall domesticate as a Delaware corporation (the “Domestication”) in accordance with Section 388 of the Delaware General Corporation Law (the “DGCL”), and the Companies Law (2020 Revision) of the Cayman Islands (“Cayman Law”), and in connection with the Domestication, the Buyer will (i) amend and restate the Buyer


  Amended and Restated Memorandum and Articles of Association by adopting the Certificate of Incorporation of the Buyer substantially in the form attached to this Agreement as Exhibit A (the “Buyer Certificate of Incorporation”) and (ii) adopt the Bylaws of the Buyer substantially in the form attached to this Agreement as Exhibit B (the “Buyer Bylaws”);

 

(F)

WHEREAS, as a result of the Domestication, each share of Existing Buyer Class A Common Stock outstanding at the effective time of the Domestication will become a share of Buyer Class A Common Stock, and each share of Existing Buyer Class B Common Stock outstanding at the effective time of the Domestication will become a share of Buyer Class F Common Stock;

 

(G)

WHEREAS, pursuant to the terms and conditions of the Buyer Certificate of Incorporation, in connection with the Closing, all then outstanding shares of Buyer Class F Common Stock will be converted into shares of Buyer Class A Common Stock on a one-for-one basis subject to certain anti-dilution adjustments if additional shares of Buyer Class A Common Stock or any other Equity-linked Securities (as defined in the Buyer Certificate of Incorporation) are issued or deemed issued in excess of the amounts offered in Buyer’s initial public offering and related to the closing of a Business Combination (as defined in the Buyer Certificate of Incorporation), which anti-dilution adjustments (the “Anti-Dilution Adjustments”) may be waived by the holders of a majority of the outstanding shares of Buyer Class F Common Stock, consenting as a separate class;

 

(H)

WHEREAS, the Anti-Dilution Adjustments applicable to the Buyer Class F Common Stock mirror the anti-dilution adjustments applicable to the Existing Buyer Class B Common Stock set forth in the Buyer Amended and Restated Memorandum and Articles of Association;

 

(I)

WHEREAS, the Sponsor is the holder of a majority of the outstanding shares of Existing Buyer Class B Common Stock and as a result of the Domestication will be holder of a majority of the outstanding shares of Buyer Class F Common Stock;

 

(J)

WHEREAS, the Sponsor has agreed (a) at and conditioned upon the Closing, (x) as holder of a majority of the outstanding shares of Existing Buyer Class B Common Stock (and as prospective holder of a majority of the shares of Buyer Class F Common Stock effective upon the Domestication), to irrevocably waive all of the Anti-Dilution Adjustments in connection with the transactions contemplated by the this Agreement, and (y) to forfeit a portion of the shares of Buyer Class A Common Stock that would otherwise be received upon automatic conversion of its shares of Buyer Class F Common Stock as a result of the consummation of the transactions contemplated by this Agreement, and (b) to vote all Existing Buyer Class A Common Stock and Existing Buyer Class B Common Stock held by it in favor of the transactions contemplated by this Agreement and not redeem any Existing Buyer Class A Common Stock held by it, as more fully set forth in, and subject to the terms and conditions of, the Forfeiture and Support Agreement, in the form attached to this Agreement as Exhibit F (the “Forfeiture and Support Agreement”);

 

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(K)

WHEREAS, in connection with the Domestication and adoption of the Buyer Certificate of Incorporation and the Buyer Bylaws, the Buyer will change its name (the “Name Change”) from “Altimar Acquisition Corporation” to “Blue Owl Capital Inc.” (“PubCo”);

 

(L)

WHEREAS, the Buyer Class A Common Stock, the Buyer Class B Common Stock, the Buyer Class E Common Stock and the Buyer Class F Common Stock will carry such economic and voting rights as set forth in the Buyer Certificate of Incorporation and the Buyer Bylaws, and the Buyer Class C Common Stock and the Buyer Class D Common Stock will carry only de minimis economic rights and such voting rights as set forth in the Buyer Certificate of Incorporation and the Buyer Bylaws;

 

(M)

WHEREAS, simultaneously with the Closing, the Buyer, Blue Owl Holdings, Blue Owl Carry, Blue Owl GP, Diamond Sellers, Opal Feeder, each Electing Opal Seller, each Non-Electing Opal Seller and holders of Equity Securities in Opal Group Blockers that are subject to an Opal Group Blocker Merger hereunder will enter into a Tax Receivable Agreement in the form attached to this Agreement as Exhibit C (the “Tax Receivable Agreement”);

 

(N)

WHEREAS, simultaneously with the Closing, the Buyer, Nephrite, Opal Feeder, each Electing Opal Seller and the other parties thereto will enter into an Investor Rights Agreement in the form attached to this Agreement as Exhibit D (the “Investor Rights Agreement”);

 

(O)

WHEREAS, simultaneously with the Closing, (i) the Buyer, in its capacity as sole member of Blue Owl GP, will enter into the amended and restated limited liability company agreement of Blue Owl GP, in the form attached to this Agreement as Exhibit E (the “A&R Blue Owl GP LLC Agreement”), and (ii) Blue Owl GP, in its capacity as the general partner of Blue Owl Holdings and Blue Owl Carry, Nephrite, Opal Feeder, each Electing Opal Seller and the other parties thereto will enter into (x) the Amended and Restated Limited Partnership Agreement of Blue Owl Holdings in the form attached to this Agreement as Exhibit G (the “A&R Blue Owl Holdings LP Agreement”) and (y) the Amended and Restated Limited Partnership Agreement of Blue Owl Carry in the form attached to this Agreement as Exhibit H (the “A&R Blue Owl Carry LP Agreement”);

 

(P)

WHEREAS, simultaneously with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of the Nephrite and the Buyer to enter into this Agreement, the Key Professionals have entered into employment agreements with the Buyer with respect to the provision of services after and, subject in all respects to consummation of, the Closing (the “Executed Employment Agreements”);

 

(Q)

WHEREAS, on or prior to the date of this Agreement, the Buyer, Nephrite and Opal Group have obtained commitments from certain Equity Financing Sources for a private placement of shares of the Buyer Class A Common Stock in accordance with the terms of one or more Subscription Agreements, such private placements to be consummated prior to or upon the consummation of the transactions contemplated by this Agreement; and

 

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(R)

WHEREAS, as a condition to the consummation of the transactions contemplated by this Agreement and by the Ancillary Agreements, the Buyer shall provide an opportunity to the Buyer Stockholders to exercise their rights to participate in the Buyer Share Redemption, on the terms and subject to the conditions and limitations set forth in this Agreement and the applicable Buyer Governing Documents in conjunction with, inter alia, obtaining approval from the Buyer Stockholders for the transactions contemplated by this Agreement and by the Ancillary Agreements.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and subject to the terms and conditions set forth in this Agreement, the Parties, intending to be legally bound, agree as follows:

Article I

CERTAIN DEFINITIONS

Section 1.1 Certain Definitions. For purposes of this Agreement, capitalized terms used in this Agreement but not otherwise defined in this Agreement shall have the meanings set forth below.

40 Act Fund” means each vehicle for collective investment (in whatever form of organization, including the form of a corporation, company, limited liability company, partnership, association, trust or other entity, and including each separate portfolio or series of any of the foregoing) (a) that is (i) registered or required to be registered with the SEC as an investment company under the Investment Company Act or (ii) a business development company regulated as such under the Investment Company Act, and (b) for which the applicable Party or one or more of its Subsidiaries acts as the sponsor, general partner, managing member, trustee, investment manager, investment advisor or sub-advisor, or in a similar capacity.

A&R Blue Owl Carry LP Agreement” has the meaning set forth in the Recitals.

A&R Blue Owl GP LLC Agreement” has the meaning set forth in the Recitals.

A&R Blue Owl Holdings LP Agreement” has the meaning set forth in the Recitals.

A&R Blue Owl Operating Agreements” means the A&R Blue Owl Holdings LP Agreement and the A&R Blue Owl Carry LP Agreement.

Accounting Firm” has the meaning set forth in Section 2.16(b).

Additional Buyer Filings” has the meaning set forth in Section 10.12(g).

Affected Party” has the meaning set forth in Section 12.3(c).

Affiliate” means, with respect to any Person, any other Person which is Controlling, Controlled by, or under common Control with (directly or indirectly through any Person) the Person referred to, and, if the Person referred to is a natural person, a Family Member of such Person. Notwithstanding the foregoing, (x) none of the Diamond Funds or any accounts, funds, vehicles or other client advised or sub-advised by the Nephrite Group (or any portfolio company

 

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or other investment of any of the foregoing) shall be an Affiliate of any member of the Nephrite Group for purposes of this Agreement and (y) none of the Opal Funds or any accounts, funds, vehicles or other client advised or sub-advised by the Opal Family (or any portfolio company or other investment of any of the foregoing) shall be an Affiliate of any member of the Opal Family for purposes of this Agreement.

Allocation” has the meaning set forth in Section 12.6.

Alternative Target” has the meaning set forth in Section 10.21(b).

Ancillary Agreements” means the A&R Blue Owl Operating Agreements, the A&R Blue Owl GP LLC Agreement, the Tax Receivable Agreement, the Investor Rights Agreement, the Subscription Agreements, the Executed Employment Agreements, the Exchange Agreement, the Forfeiture and Support Agreement, the Escrow Agreement, each Opal Group Blocker Merger Agreement, the Opal Group Surviving LLC Agreement, the Opal Carry Surviving LP Agreement, and each other agreement, instrument and certificate required by this Agreement to be executed by any of the Parties as contemplated by this Agreement, in each case only as applicable to the relevant Party or Parties to such Ancillary Agreement, as indicated by the context in which such term is used.

Anti-Corruption Laws” means all applicable U.S. and non-U.S. Laws relating to the prevention of corruption and bribery including the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act 2010.

Anti-Dilution Adjustments” has the meaning set forth in the Recitals.

Anti-Money Laundering Laws” means applicable Laws related to money laundering, including the Currency and Foreign Transaction Reporting Act of 1970 (also known as the Bank Secrecy Act), the Money Laundering Control Act of 1986 and any other applicable Law related to money laundering of any jurisdictions in which the applicable Person conducts business, including any anti-racketeering laws involving money laundering or bribery as a racketeering act.

Antitrust Laws” has the meaning set forth in Section 10.11(c).

Applicable Organization Law” means, as applicable, Cayman Law together with the DGCL.

Applicable Representative” means (a) with respect to Tax Returns, Tax Proceedings, or other Tax matters of the Diamond Business and the Diamond Transferred Companies or with respect to any Taxes or Tax matters which are the subject of Indemnification under Section 14.3, Nephrite, and (b) with respect to Tax Returns, Tax Proceedings, or other Tax matters of the Opal Business and the Opal Transferred Companies or with respect to any Taxes or Tax matters which are the subject of Indemnification under Section 14.4, Opal Partners.

Applicable Tax Proceeding” has the meaning set forth in Section 12.3.

 

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Applicable Vote Only Shares” means (a) in respect of each Opal Group Class A Unit held by a holder making a Valid Opal Group Partnership Election, a number of the Buyer Class C Shares equal to the number of Blue Owl Holdings Common Units issued in respect of such Opal Group Class A Unit and (b) in respect of any Opal Group Sponsor B Units held by a holder making a Valid Opal Group Partnership Election, (i) a number of the Buyer Class C Shares equal to 40% multiplied by the number of Blue Owl Holdings Common Units issued to the holder of such Opal Group Sponsor B Units plus (ii) a number of the Buyer Class D Shares equal to 60% multiplied by the number of Blue Owl Holdings Common Units issued to the holder of such Opal Group Sponsor B Units; provided that if, as a result of the issuances in accordance with clause (b) of this definition, less than a majority of voting power of all shares of stock of the Buyer are owned by the holder of Opal Group Sponsor B Units, the number of Buyer Class D Shares shall be increased, and the number of Buyer Class C Shares shall be decreased, on a one-for-one basis so as to cause a majority of the voting power of all shares of stock of the Buyer to be held by the holder of Opal Group Sponsor B Units (with it being acknowledged that such Buyer Class D Shares convert to Buyer Class C Shares as provided in the Buyer Certificate of Incorporation).

Audited Diamond Financial Statements” has the meaning set forth in Section 3.4(a)(i).

Audited Opal Financial Statements” has the meaning set forth in Section 5.4(a)(i).

Automatic Transfer Employee” means each Diamond Business Employee who will, as a result of this Agreement, become employed by the Buyer or one of its Subsidiaries by operation of the Transfer Regulations.

Available Cash Shared Shortfall Amount” means (a) if the Available Unearmarked Cash Shortfall Amount is less than or equal to the Balance Sheet Shortfall Responsibility, $0.00, or (b) if the Available Unearmarked Cash Shortfall Amount is greater than the Balance Sheet Shortfall Responsibility, the result of (i) the Available Unearmarked Cash Shortfall Amount minus (ii) the Balance Sheet Shortfall Responsibility.

Available Closing Date Cash” means, as of immediately prior to the Closing, an aggregate amount equal to the sum of (without duplication) (a) the cash in the Trust Account, minus (b) the Buyer Share Redemption Amount, plus (c) the aggregate net proceeds received by the Buyer from the PIPE Financing to the extent consummated at, or prior to, the Closing.

Available Unearmarked Cash Shortfall Amount” means the greater of (a) $0.00 and (b) the result equal to (i) $1,775,000,000 minus (ii) the amount of Available Closing Date Cash, minus (iii) the Buyer Share Redemption Amount.

Balance Sheet Shortfall Responsibility” means the result (whether positive or negative) equal to (a) $50,000,000 minus (b) the Transaction Expenses Overage (if any).

BDC Board” means the board of directors of the BDCs.

BDC Core” means Owl Rock Core Income Corp., a Maryland corporation.

BDC Documents” means the forms, statements, reports and documents required to be filed by any BDC with, or required to be furnished by any BDC to, the SEC or any other Governmental Entity pursuant to the Investment Company Act, the Securities Act, the Securities Exchange Act or other applicable Laws (including any exhibits or amendments thereto).

 

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BDC I” means Owl Rock Capital Corporation, a Maryland corporation.

BDC II” means Owl Rock Capital Corporation II, a Maryland corporation.

BDC III” means Owl Rock Capital Corporation III, a Maryland corporation.

BDC Tech” means Owl Rock Technology Finance Corp., a Maryland corporation.

BDCs” means BDC I, BDC II, BDC III, BDC Tech, BDC Core and their respective Subsidiaries.

Blue Owl Carry” has the meaning set forth in the Recitals.

Blue Owl Carry Common Units” means Common Units (including Seller Earnout Units) of Blue Owl Carry, having the rights and preferences set forth in the A&R Blue Owl Carry LP Agreement.

Blue Owl Carry GP Units” means GP Units of Blue Owl Carry, having the rights and preferences set forth in the A&R Blue Owl Carry LP Agreement.

Blue Owl Carry Percentage” means a percentage agreed by Nephrite and Opal Partners in good faith prior to Closing, which percentage is intended to represent the percentage of the fair market value of the equity of the Blue Owl Companies represented by the equity of Blue Owl Carry (provided that such percentage shall in any event be less than 0.10%, unless agreed by the Buyer, Nephrite, and Opal Partners).

Blue Owl Carry Series E-1 Seller Earnout Units” means Blue Owl Carry Common Units designated as “Series E-1 Seller Earnout Units” in accordance with the A&R Blue Owl Carry LP Agreement.

Blue Owl Carry Series E-2 Seller Earnout Units” means Blue Owl Carry Common Units designated as “Series E-2 Seller Earnout Units” in accordance with the A&R Blue Owl Carry LP Agreement.

Blue Owl Companies” means Blue Owl Holdings, Blue Owl Carry and their respective Subsidiaries (including, from and after the Closing, the Transferred Companies).

Blue Owl Flow-Thru Company” means any of Blue Owl Holdings, Blue Owl Carry and their Subsidiaries (including any Diamond Transferred Companies or Opal Transferred Companies that will be Subsidiaries of Blue Owl Holdings or Blue Owl Carry as a result of the transactions contemplated by this Agreement) and that is treated for applicable Income Tax purposes as a partnership, disregarded entity, or other “flow-through entity” and whose results directly or indirectly are reflected on the Tax Returns of, or otherwise affect the Income Tax Liability of, the Nephrite Group (or its direct or indirect owners) or the Opal Family (or its direct or indirect owners).

Blue Owl GP” has the meaning set forth in the Recitals.

 

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Blue Owl GP Unit” means one Blue Owl Holdings GP Unit and one Blue Owl Carry GP Unit, collectively.

Blue Owl Holdings” has the meaning set forth in the Recitals.

Blue Owl Holdings Common Units” means Common Units (including Seller Earnout Units) of Blue Owl Holdings, having the rights and preferences set forth in the A&R Blue Owl Holdings LP Agreement.

Blue Owl Holdings GP Units” means GP Units of Blue Owl Holdings, having the rights and preferences set forth in the A&R Blue Owl Holdings LP Agreement.

Blue Owl Holdings Percentage” means 100% minus the Blue Owl Carry Percentage.

Blue Owl Holdings Series E-1 Seller Earnout Units” means Blue Owl Holdings Common Units designated as “Series E-1 Seller Earnout Units” in accordance with the A&R Blue Owl Holdings LP Agreement.

Blue Owl Holdings Series E-2 Seller Earnout Units” means Blue Owl Holdings Common Units designated as “Series E-2 Seller Earnout Units” in accordance with the A&R Blue Owl Holdings LP Agreement.

Blue Owl Unit” means one Blue Owl Holdings Common Unit and one Blue Owl Carry Common Unit, collectively.

Business Combination” has the meaning ascribed to such term in the Buyer Amended and Restated Memorandum and Articles of Association.

Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.

Business Services Platform” means the Diamond Business group that provides strategic services to current and future Partner Managers and other portfolio investments.

Buyer” has the meaning set forth in the Preamble.

Buyer Amended and Restated Memorandum and Articles of Association” means the amended and restated memorandum and articles of association of the Buyer, effective as of October 22, 2020, as in effect on the date of this Agreement.

Buyer Balance Sheet” has the meaning set forth in Section 7.11(c).

Buyer Board” means, at any time, the board of directors of the Buyer.

Buyer Board Recommendation” has the meaning set forth in Section 7.1.

Buyer Bylaws” has the meaning set forth in the Recitals.

 

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Buyer Capital Stock” means (a) prior to the Closing, the Existing Buyer Class A Common Stock and the Existing Buyer Class B Common Stock and (b) following the Closing, the Buyer Class A Common Stock, the Buyer Class B Common Stock, the Buyer Class C Common Stock, the Buyer Class D Common Stock, the Buyer Class E Common Stock, and the Buyer Class F Common Stock.

Buyer Certificate of Incorporation” has the meaning set forth in the Recitals.

Buyer Class A Common Stock” means the Class A common stock of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Certificate of Incorporation.

Buyer Class A Shares” means shares of the Buyer Class A Common Stock.

Buyer Class B Common Stock” means the Class B common stock of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Certificate of Incorporation.

Buyer Class B Shares” means shares of the Buyer Class B Common Stock.

Buyer Class C Common Stock” means the Class C common stock of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Certificate of Incorporation.

Buyer Class C Shares” means shares of the Buyer Class C Common Stock.

Buyer Class D Common Stock” means the Class D common stock of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Certificate of Incorporation.

Buyer Class D Shares” means shares of the Buyer Class D Common Stock.

Buyer Class E Common Stock” means the Class E common stock of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Certificate of Incorporation, including the Series E-1 Common Stock of the Buyer (the “Buyer Series E-1 Common Stock”) and the Series E-2 Common Stock of the Buyer (the “Buyer Series E-2 Common Stock”).

Buyer Class E Shares” means shares of the Buyer Class E Common Stock, including shares of the Buyer Series E-1 Common Stock (“Buyer Series E-1 Shares”) and shares of the Buyer Series E-2 Common Stock (“Buyer Series E-2 Shares”).

Buyer Class F Common Stock” means the Class F common stock of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Certificate of Incorporation.

Buyer Competing Transaction” means any transaction involving, directly or indirectly, any merger or consolidation with or acquisition of, purchase of all or a material amount of the assets or equity of, consolidation or similar business combination with or other transaction that would constitute a Business Combination with or involving the Buyer and a third party, other than the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement and for the avoidance of doubt, “Buyer Competing Transaction” shall be deemed to exclude any transaction, arrangement, Contract or understanding involving any Person (other than the Buyer) that is the Sponsor or an Affiliate of the Sponsor or the Sponsor’s equityholders so long

 

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as such transaction, arrangement, Contract or understanding does not (i) involve the Buyer or any assets (including, for this purpose, the Trust Account and the PIPE Financing) or Equity Securities or debt securities of the Buyer or (ii) impede, interfere with or prevent, or that would not reasonably be expected to materially delay, the transactions contemplated by this Agreement.

Buyer Fundamental Representations” means the representations and warranties set forth in Section 7.1 (Organization; Authorization; Enforceability), Section 7.2 (Capitalization), Section 7.3 (Brokerage), Section 7.4 (Trust Account), Section 7.11(d) (Certain Subsidiaries) and Section 7.12 (Acquisition Intent).

Buyer Governing Documents” means, at any time prior to the Closing, the Buyer Amended and Restated Memorandum and Articles of Association, and, at any time following the Closing, the Buyer Certificate of Incorporation and the Buyer Bylaws, as in effect at such time.

Buyer Indemnified Parties” has the meaning set forth in Section 14.3.

Buyer Material Adverse Effect” means an event, change, circumstance, occurrence, fact, development or effect, individually or in the aggregate, that has had or would be reasonably expected to have a material and adverse effect upon the ability of the Buyer to perform its obligations and to consummate the transactions contemplated by this Agreement and the Ancillary Agreements, in each case excluding the consummation of any Buyer Share Redemptions, which shall not be deemed to constitute a Buyer Material Adverse Effect; provided that none of the following shall constitute a “Buyer Material Adverse Effect”: (a) events, changes, circumstances, occurrences, facts, developments or effects that are the result of factors generally affecting the industries or jurisdictions in which Buyer operates or participates; (b) changes in general economic conditions affecting the national, regional or world economy; (c) any national or international political conditions in or affecting any jurisdiction in which the Buyer conducts business (including the outcome of the 2020 United States presidential election or the 2020 special elections for the United States Senators from the State of Georgia); (d) any embargo, riot, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire, other weather-related or meteorological event, pandemic (including the COVID-19 pandemic and any COVID-19 Measures), epidemic, disease outbreak or other natural disaster or act of god; (e) the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States, or any United States territories, possessions or diplomatic or consular offices or upon any United States military installation, equipment or personnel; (f) changes in GAAP or in applicable Law or in interpretations thereof by courts or other Governmental Entities, in each case, after the date of this Agreement; (g) any adverse event, change, circumstance, occurrence, fact, development or effect caused by any announcement, pendency or consummation of the transactions contemplated by this Agreement (except this clause (g) shall not apply with respect to any representation or warranty that is intended to address the consequences of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated by this Agreement); (h) actions taken or omitted at the written request of Nephrite and Opal or with the prior written consent of Nephrite and Opal or any action expressly required by this Agreement; or (i) any failure of the Buyer to meet any forecasts or revenue, earnings, or fundraising or other projections; provided that the underlying cause of the Buyer’s failure to meet such forecasts or revenue, earnings, or fundraising or other projections shall be taken into account

 

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to the extent not otherwise excluded under this Agreement; provided that, with respect to clause (a), clause (b), clause (c), clause (d), clause (e) or clause (f) above, such events, changes, circumstances, occurrences, facts, developments or effects may be taken into account to the extent they disproportionately adversely affect the Buyer, taken as a whole, relative to other businesses in the industries in which the Buyer operates or participates.

Buyer Name” has the meaning set forth in Section 11.3.

Buyer Parties” has the meaning set forth in Section 15.2(a).

Buyer Prepared Returns” has the meaning set forth in Section 12.1(a).

Buyer Record Date” has the meaning set forth in Section 10.12(c).

Buyer Restricted Personnel” means all (a) Opal Group Employees as of the Closing and (b) former Diamond Business Employees, in each case, who commence or continue employment with the Buyer or any of its Subsidiaries upon the Closing of the transactions contemplated by this Agreement. For the avoidance of doubt, Buyer Restricted Personnel does not include any employees hired after the Closing.

Buyer SEC Documents” has the meaning set forth in Section 7.5(a).

Buyer SEC Filings” means the forms, reports, schedules, registration statements and other documents required to be filed by the Buyer with the SEC, including the Registration Statement, Additional Buyer Filings, the Signing Form 8-K and the Closing Form 8-K, and all amendments, modifications and supplements thereto.

Buyer Share Redemption” means the valid election of an eligible holder of Existing Buyer Class A Common Stock (as determined in accordance with the applicable Buyer Governing Documents and the Trust Agreement) to redeem all or a portion of such holder’s Existing Buyer Class A Common Stock, at the per-share price, payable in cash, equal to such holder’s pro rata share of the Trust Account (as determined in accordance with the applicable Buyer Governing Documents and the Trust Agreement), by tendering such holder’s Existing Buyer Class A Common Stock for redemption not later than 5:00 p.m. Eastern Time on the date that is two (2) Business Days prior to the date of the Buyer Stockholder Meeting.

Buyer Share Redemption Amount” means the aggregate amount in cash necessary to effect any Buyer Share Redemptions.

Buyer Stockholder Meeting” means a special meeting of the Buyer Stockholders to vote on the Buyer Stockholder Voting Matters.

Buyer Stockholder Voting Matters” means, collectively, (i) the adoption and approval of this Agreement and the business combination contemplated hereby (which will constitute approval of a Business Combination (as defined in the Buyer Amended and Restated Memorandum and Articles of Association and the Buyer Certificate of Incorporation)) (the “Business Combination Proposal”), (ii) approval of the Domestication (the “Domestication Proposal”); (iii) approval of the proposals required to adopt the Buyer Certificate of Incorporation (including each change to

 

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the Buyer Certificate of Incorporation that is required to be separately approved) and the Buyer Bylaws (the “Organizational Documents Proposals”), (iv) to the extent required by the NYSE listing rules, approval of the issuance of the Buyer Class A Common Stock required to consummate the PIPE Financing (the “Stock Issuance Proposal”), (v) to the extent required by NYSE listing rules, approval of the issuance of shares of Buyer Capital Stock to the Sellers pursuant to the terms of this Agreement (the “Merger Issuance Proposal”), (vi) the approval and adoption of the LTIP (the “Equity Incentive Plan Proposal”), (vii) adjournment of the Buyer Stockholder Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing proposals and (viii) approval of any other proposals reasonably agreed by Buyer and the Sellers to be necessary or appropriate in connection with the transaction contemplated hereby (the “Additional Proposal” and together with the Business Combination Proposal, the Domestication Proposal, Organizational Documents Proposals, the Stock Issuance Proposal, the Merger Issuance Proposal and the Equity Incentive Plan Proposal, the “Proposals”).

Buyer Stockholders” means the holders of the Buyer Capital Stock as of any time of determination.

Buyer’s Disclosure Letter” means the Disclosure Letter delivered by the Buyer concurrently with the execution and delivery of this Agreement.

CARES Act” means the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Cayman Law” has the meaning set forth in the Recitals.

CFTC” means the U.S. Commodity Futures Trading Commission.

Claim Notice” has the meaning set forth in Section 14.5(a).

Clayton Act” means the Clayton Act of 1914.

Client” means a Diamond Fund or an Opal Fund, as applicable.

Client Contract” means (a) with respect to the Diamond Business, an investment advisory agreement entered into by the Diamond RIA Subsidiary with a Client for the purpose of providing Investment Advisory Services to such Client (solely to the extent entered into on behalf of or otherwise related to services of the Diamond Business) and (b) with respect to the Opal Business, an investment advisory agreement entered into by an Opal RIA Subsidiary with a Client for the purpose of providing Investment Advisory Services to such Client.

Closing” has the meaning set forth in Section 2.8.

Closing Date” has the meaning set forth in Section 2.8.

Closing Form 8-K” has the meaning set forth in Section 10.12(h).

Closing Press Release” has the meaning set forth in Section 10.12(h).

Code” means the Internal Revenue Code of 1986.

 

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Competing Buyer” has the meaning set forth in Section 10.21(a).

Competing Transaction” means (a) any transaction involving, directly or indirectly, the Diamond Business or the Opal Business, which upon consummation thereof, would (x) result in the Diamond Business or the Opal Business, directly or indirectly, becoming a public company or (y) impede, materially interfere with or prevent the transactions contemplated by this Agreement, (b) any direct or indirect sale (including by way of a merger, consolidation, license, transfer, sale, spin-out, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of any material portion of the assets (including Owned Intellectual Property) or business of the Diamond Business or the Opal Business, taken as a whole (but excluding the sale of assets in the Ordinary Course of Business that in the aggregate would not reasonably be expected to impede, interfere with, prevent, or would reasonably be expected to materially delay the transactions contemplated by this Agreement) or (c) any direct or indirect sale (including by way of an issuance, dividend, distribution, merger, consolidation, license, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of equity, voting interests or debt securities of any Diamond Transferred Company or Opal Transferred Company (excluding any such sale between or among either the Nephrite Group or the Opal Family, as applicable, solely to the extent the purpose of such sale is not to frustrate the consummation of the transactions contemplated by this Agreement) (except, in each case, as contemplated by this Agreement), in all cases of clauses (a) through (c), either in one or a series of related transactions, where such transaction(s) is to be entered into with a Competing Buyer. Notwithstanding anything in this Agreement to the contrary, any transaction, arrangement, Contract or understanding not involving the Diamond Business or the Opal Business, directly or indirectly, shall not be a “Competing Transaction” for purposes of this Agreement.

Confidentiality Agreements” means, collectively, (i) the Non-Disclosure Agreement, dated as of September 29, 2020, by and between Nephrite and Opal Group, (ii) the Non-Disclosure Agreement, dated as of November 16, 2020, between Nephrite and the Buyer and (iii) the Non-Disclosure Agreement, dated as of November 16, 2020, between Opal Group and the Buyer.

Consent” means any consent, approval or authorization required in connection with the execution, delivery or performance of this Agreement or any other Ancillary Agreement, or the consummation of the transactions contemplated by this Agreement or any other Ancillary Agreement.

Contract” means any written or oral contract, agreement, license or Lease, commitment, or other instrument, arrangement or understanding of any kind to which a Person or any of its assets or properties is bound, in each case, which is legally binding.

Control,” “Controlled” or “Controlling” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person (other than an individual), whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise. For purposes of this definition, subject to the second sentence of the definition of Affiliate, a general partner or managing member of a Person shall always be considered to Control such Person.

 

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COVID-19” means the novel coronavirus, SARS-CoV-2 or COVID-19 (and all related strains and sequences), including any intensification, resurgence or any evolutions or mutations thereof, and/or related or associated epidemics, pandemics, disease outbreaks or public health emergencies.

COVID-19 Measures” means any applicable quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other applicable Law, Order, directive, guideline or recommendation by an applicable Governmental Entity in connection with or in response to the COVID-19 pandemic, including the Coronavirus Aid, Relief, and Economic Security Act (CARES).

Customs & Trade Laws” means all applicable export, import, customs and trade, and anti-boycott laws or regulations administered, enacted or enforced by any Governmental Entity, including: (a) the laws, regulations, and programs administered or enforced by U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the U.S. International Trade Commission, the U.S. Department of Commerce, and the U.S. Department of State; (b) the U.S. Tariff Act of 1930; (c) the U.S. Export Control Reform Act of 2018 and the Export Administration Regulations, including related restrictions with regard to persons or entities on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List; (d) the U.S. Arms Export Control Act and the International Traffic in Arms Regulations, including related restrictions with regard to persons or entities on the U.S. Department of State’s Debarred List; (e) the U.S. Foreign Trade Regulations; (f) the anti-boycott laws and regulations administered by the U.S. Department of Commerce and the U.S. Department of the Treasury; and (g) all other applicable laws, regulations, or programs.

D&O Provisions” has the meaning set forth in Section 10.14(a).

Data Protection Laws” means all applicable Laws in any jurisdiction relating to the Processing of personally identifiable information or personal data, including, as applicable, the California Consumer Privacy Act, the New York Department of Financial Services Cybersecurity Regulation (23 NYCRR 500), Regulation P (12 CFR Part 1016 – Privacy of Consumer Financial Information) and the General Data Protection Regulation 2016/679 and including any predecessor, successor or implementing legislation in respect of the foregoing, and any amendments or re-enactments of the foregoing.

Data Room” has the meaning set forth in Section 15.6.

Delaware Courts” has the meaning set forth in Section 15.9.

DGCL” has the meaning set forth in the Recitals.

Diamond 401(k) Plan” has the meaning set forth in Section 10.15(f).

Diamond Acquired Business Records” means all books, records, ledgers, financial statements, electronic mail archives, Client information (including in respect of investors in any Client) and files and other information (whether in written or electronic form) to the extent relating exclusively to the Diamond Assets and the Diamond Funds, including the employment file and other records that relate to each Diamond Principal and each Diamond Business Employee and documents supporting or otherwise related to the Diamond Track Record and its calculation.

 

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Diamond Affiliate Arrangement” has the meaning set forth in Section 3.10(a)(i).

Diamond Affiliate Employee Benefit Plan” means each Diamond Employee Benefit Plan that is not sponsored or maintained by a Diamond Transferred Company.

Diamond Assets” means each of the assets, properties, rights and interests of the Nephrite Group, whether tangible or intangible, real, personal or mixed, to the extent primarily used or held for use in connection with the ownership and operation of the Diamond Business, which shall include, for the avoidance of doubt, the following, in each case, solely to the extent primarily used or held for use in connection with the ownership and operation of the Diamond Business or reflected as an asset (other than a current asset and assets disposed of in the Ordinary Course of Business since the date of the Diamond Financial Statements) on the Diamond Financial Statements (but in all cases, other than an Excluded Diamond Asset):

(a) each Client Contract with any Diamond Funds or otherwise with respect to the Diamond Business, as well as any other Contract providing for the payment of fees in respect of the Diamond Business (for the avoidance of doubt, the Client Contracts with respect to the Diamond Finance Fund shall include the right to receive Promote Distributions with respect to such Diamond Finance Fund);

(b) each Diamond Material Contract;

(c) the Diamond Track Record;

(d) the Diamond Acquired Business Records (excluding, subject to Section 11.1(d), the Diamond Related Business Records);

(e) the Diamond Transferred Companies (for the avoidance of doubt, Diamond Assets shall not include any Diamond Seller);

(f) all Intellectual Property Rights of the Nephrite Group primarily or exclusively used or held for use by the Diamond Business, including the Diamond Marks;

(g) rights to all management fees and other fees earned by the Diamond Business (including in respect of all lines of the Diamond Business, whether in respect of successor flagship Diamond Funds or other investment products of the Diamond Business);

(h) the Business Services Platform;

(i) other than in respect of the Existing Diamond Flagship Funds, rights to 15% of the Promote Distributions generated by each Diamond Fund;

(j) all claims, judgments or causes of action to the extent related to any of the Diamond Assets; and

 

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(k) all counterclaims, set-offs, recoupment rights or defenses with respect to the Diamond Liabilities.

Diamond Business” means (a) the entirety of the business currently known as the Dyal Capital Partners division of Nephrite, which includes the business and operations related to sponsoring, offering and management of the Diamond Funds and any successor fund thereof, (b) the Diamond Transferred Companies and their respective business, operations and services and (c) the Business Services Platform. For the avoidance of doubt, the Diamond Business excludes (w) the Diamond Funds, in and of themselves, (x) any Subsidiary of the Diamond Funds, (y) the Excluded Diamond Assets and (z) any Specified Equity issued in connection with the Diamond Business.

Diamond Business Employee” means each employee of the Nephrite Group or its Affiliates listed on Section 3.15(a) of the Diamond Disclosure Letter, as will be updated by Nephrite and delivered to Opal Partners at least 20 days prior to the Closing Date, to (subject to the other terms and conditions of this Agreement) (a) remove any employee listed on Section 3.15(a) of the Diamond Disclosure Letter as of the date of this Agreement whose employment with the Nephrite Group has terminated following the date of this Agreement but prior to the date of such delivery and (b) add any employee who (i) is the replacement of an employee contemplated by the preceding clause (a) whose employment commenced after the date of this Agreement, (ii) is the functional equivalent of an employee set forth listed on Section 3.15(a) of the Diamond Disclosure Letter as of the date of this Agreement whose employment commenced after the date of this Agreement or (iii) whose employment commenced after the date of this Agreement and who primarily devotes their business time to the Diamond Business.

Diamond Business Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Organization; Authority; Enforceability), Section 3.2 (Capitalization and Related Matters), and Section 3.14 (Brokerage).

Diamond Capital Holdings” means Dyal Capital Holdings LLC.

Diamond Cash Consideration” means the result equal to (a) $1,100,000,000 minus (b) the Buyer Share Redemption Amount minus (c) 50% of the Available Cash Shared Shortfall Amount minus (d) the absolute value of the Diamond Closing Deficit (if any).

Diamond Closing Adjustment Amount” means the result, whether positive or negative, equal to (a) the Diamond Estimated Closing Net Working Capital minus (b) the Diamond Estimated Indebtedness Amount. A positive Diamond Closing Adjustment Amount is a “Diamond Closing Excess,” and a negative Diamond Closing Adjustment Amount is a “Diamond Closing Deficit.”

Diamond Closing Estimate Statement” has the meaning set forth in Section 2.5(d).

Diamond Closing Net Working Capital” means the Diamond Net Working Capital as of immediately following the Diamond Reorganization.

Diamond Disclosure Letter” means the Disclosure Letter delivered by Nephrite concurrently with the execution and delivery of this Agreement.

 

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Diamond Earnout Consideration” means $550,000,000.

Diamond Employee Benefit Plan” means each Employee Benefit Plan (a) that is maintained, sponsored or contributed to (or required to be contributed to) by any Diamond Transferred Company or (b) under or with respect to which the Nephrite Group (solely to the extent related to the Diamond Business) has any Liability in respect of any current or former Diamond Business Employee or consultant of the Diamond Business, in such capacity.

Diamond Estimated Closing Net Working Capital” means the estimated Diamond Closing Net Working Capital as set forth in the Diamond Closing Estimate Statement.

Diamond Estimated Indebtedness Amount” means the estimated Diamond Indebtedness Amount as set forth in the Diamond Closing Estimate Statement.

Diamond Final Adjustment Amount” means the result, whether positive or negative, equal to (a) the Diamond Closing Net Working Capital minus (b) the Diamond Indebtedness Amount plus (c) the absolute value of the Diamond Closing Deficit (if any). A positive Diamond Final Adjustment Amount is a “Diamond Final Excess,” and a negative Diamond Final Adjustment Amount is a “Diamond Final Deficit.”

Diamond Finance Fund” means the following entities taken as a whole: Dyal Finance Investors (US) LP; DFF (US Unlevered) Holdings LP; DFF (US Levered) Holdings LP; Dyal Finance Investors (US Unlevered) LP; Dyal Finance Investors (US Levered) LP; Dyal Finance Investors (US Unlevered CA) LP; and Dyal Finance Investors (US Levered CA) LP, in each case, together with any alternative investment vehicles, master or feeder funds and blockers formed by the Diamond Business in connection therewith.

Diamond Financial Statements” has the meaning set forth in Section 3.4(a).

Diamond Fund Documentation” means, with respect to each Diamond Fund, all organizing documents, including its memorandum and articles of incorporation, limited partnership agreement or other constitutional documents and form of subscription documents (including investor side letters), in each case, that as of the date of this Agreement, are in effect and material to such Diamond Fund.

Diamond Fund I” means the following entities taken as a whole: Diamond Capital Partners (A) LP; Diamond Capital Partners (B) LP; Diamond Investment Partners LP; Diamond US Investors LP; Diamond NJ Investors LP; Diamond Offshore Investors LP; and Diamond Offshore Investors II LP, in each case, together with any alternative investment vehicles, master or feeder funds and blockers formed by the Diamond Business in connection therewith.

Diamond Fund II” means the following entities taken as a whole: Diamond Capital Partners II (A) LP; Diamond Capital Partners II (B) LP; Diamond II Investment Partners LP; Diamond II US Investors LP; Diamond II NJ Investors LP; Diamond II Offshore Investors LP; and Diamond II Pension Investors LP, in each case, together with any alternative investment vehicles, master or feeder funds and blockers formed by the Diamond Business in connection therewith.

 

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Diamond Fund III” means the following entities taken as a whole: Diamond Capital Partners III (A) LP; Diamond Capital Partners III (B) LP; Diamond III US Investors LP; Diamond III Offshore Investors LP; and Diamond III Pension Investors LP, in each case, together with any alternative investment vehicles, master or feeder funds and blockers formed by the Diamond Business in connection therewith.

Diamond Fund IV” means the following entities taken as a whole: Dyal Capital Partners IV (A) LP; Dyal Capital Partners IV (B) LP; Dyal IV US Investors LP; Dyal IV Offshore Investors LP; Dyal IV Pension Investors LP; Dyal IV Cayman Aggregator LP; Dyal Cayman Offshore IV LP; and Dyal U.S. IV LLC, in each case, together with any alternative investment vehicles, master or feeder funds and blockers formed by the Diamond Business in connection therewith.

Diamond Fund V” means the following entities taken as a whole: Diamond Capital Partners V (A) LP; Diamond Capital Partners V (B) LP; Diamond V Offshore Investors LP; Diamond V Pension Investors LP; and Diamond V US Investors LP, in each case, together with any alternative investment vehicles, master or feeder funds and blockers formed by the Diamond Business in connection therewith.

Diamond Funds” means those entities listed on Section 1.1(a) of the Diamond Disclosure Letter.

Diamond Indebtedness” means the aggregate principal amount of any indebtedness for borrowed money of the Diamond Transferred Companies, and guarantees by the Diamond Transferred Companies of any indebtedness for borrowed money of any other Person other than the Diamond Transferred Companies, excluding any Intercompany Indebtedness.

Diamond Indebtedness Amount” means, without duplication of any amounts included in the Diamond Closing Net Working Capital, the amount of Diamond Indebtedness as of immediately following the Diamond Reorganization.

Diamond Insurance Plans” has the meaning set forth in Section 3.24.

Diamond Liability” means all Liabilities to the extent relating to or arising from the Diamond Business or any Diamond Assets (but excluding any Excluded Diamond Assets), including all Liabilities relating to the conduct or ownership of the Diamond Business or any Diamond Assets prior to, on or following the Closing and regardless of whether such Liability existed or arises prior to, on or following the Closing, other than Retained Diamond Liabilities, Income Taxes and Nephrite Indemnified Taxes.

Diamond Marks” means (a) Dyal, Dyal Capital Partners and Dyal Homecourt Partners, (b) any other Trademarks owned by the Nephrite Group and used primarily or exclusively in the Diamond Business as set forth on Section 3.11(a) of the Diamond Disclosure Letter, and (c) any name, mark or design incorporating, referencing, combining, or confusingly similar to, any of the foregoing terms or designs.

 

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Diamond Material Adverse Effect” means an event, change, circumstance, occurrence, fact, development or effect, individually or in the aggregate, that would reasonably be expected to (x) be materially adverse to the business, assets, properties, financial condition or results of operation of the Diamond Business, taken as a whole, or (y) prevent or materially delay the ability of Nephrite to consummate the transactions contemplated by this Agreement; provided that none of the following shall constitute a “Diamond Material Adverse Effect”: (a) events, changes, circumstances, occurrences, facts, developments or effects that are the result of factors generally affecting the industries or jurisdictions in which the Diamond Business operates or participates; (b) changes in general economic conditions affecting the national, regional or world economy; (c) any national or international political conditions in or affecting any jurisdiction in which the Diamond Business conduct business (including the outcome of the 2020 United States presidential election or the 2020 special elections for the United States Senators from the State of Georgia); (d) any strike, embargo, labor disturbance, riot, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire, other weather-related or meteorological event, pandemic (including the COVID-19 pandemic and any COVID-19 Measures), epidemic, disease outbreak or other natural disaster or act of god; (e) the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States, or any United States territories, possessions or diplomatic or consular offices or upon any United States military installation, equipment or personnel; (f) changes in GAAP or in applicable Law or in interpretations thereof by courts or other Governmental Entities, in each case, after the date of this Agreement; (g) any adverse event, change, circumstance, occurrence, fact, development or effect caused by any announcement, pendency or consummation of the transactions contemplated by this Agreement (except this clause (g) shall not apply with respect to any representation or warranty that is intended to address the consequences of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated by this Agreement); (h) actions taken or omitted at the written request of Opal Group and the Buyer, with the prior written consent of Opal Group and the Buyer or any action expressly required by this Agreement or any action omitted as a result of requesting a consent required under this Agreement from Opal Group and the Buyer if Opal Group or the Buyer denies such consent; or (i) any failure of the Diamond Business to meet any forecasts or revenue, earnings, or fundraising or other projections; provided that the underlying cause of the Diamond Business’s failure to meet such forecasts or revenue, earnings, or fundraising or other projections shall be taken into account to the extent not otherwise excluded under this Agreement; provided that, with respect to clause (a), clause (b), clause (c), clause (d), clause (e) or clause (f) above, such events, changes, circumstances, occurrences, facts, developments or effects may be taken into account to the extent they disproportionately adversely affect the Diamond Business, taken as a whole, relative to other businesses in the industries in which the Diamond Business operates or participates.

Diamond Material Contracts” has the meaning set forth in Section 3.10(a).

Diamond Net Working Capital” means the difference (which may be positive or negative) between (a) the sum of cash and current receivables (including for payments on behalf of or due from Diamond Funds) of Diamond Transferred Companies on a consolidated basis minus (b) current operating expenses of Diamond Transferred Companies reasonably expected to arise in the period after the Closing, and accrued anticipated bonuses and other expenses of Diamond Transferred Companies (including for this purpose all such liabilities in respect of Transferred Employees) in respect of the periods ending on or prior to the Closing (including the portion of any period that includes the Closing Date), in each case calculated consistent with the Unaudited Diamond Financial Statements and in a manner consistent with the sample working capital statement attached hereto as Section 1.1(f) of the Opal Disclosure Letter.

 

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Diamond Pre-Closing Income Taxes” means (a) all Income Taxes (or the non-payment thereof) of any Diamond Transferred Company or with respect to the Diamond Business for any Pre-Closing Tax Period, (b) all Income Taxes of any member (other than a Diamond Transferred Company) of an affiliated, consolidated, combined or unitary group of which any Diamond Transferred Company (or any predecessor of any Diamond Transferred Company) is or was a member prior to the Closing, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or non-U.S. Law, and (c) all Income Taxes of any Person (other than a Diamond Transferred Company) imposed on any Diamond Transferred Company as a transferee or successor, by Contract (other than Ordinary Course Tax Sharing Agreements), or pursuant to any Law, which Income Taxes relate to an event or transaction occurring before the Closing.

Diamond Principals” means Michael Rees, Sean Ward and Andrew Laurino.

Diamond Privacy and Security Policies” has the meaning set forth in Section 3.12(a).

Diamond Prohibited Affiliate Transactions” means any Diamond Affiliate Arrangement, other than (a) any Permitted Affiliate Transaction and (b) the transactions contemplated by this Agreement or the Ancillary Agreements.

Diamond Related Business Records” means all books, records, ledgers, financial statements, electronic mail archives, Client information (including in respect of investors in any Client) and files and other information (whether in written or electronic form) that do not exclusively relate to the Diamond Assets and the Diamond Funds, in each case to the extent relating to the Diamond Assets and the Diamond Funds

Diamond Reorganization” has the meaning set forth in Section 2.1(a).

Diamond RIA Subsidiary” means NB Alternatives Advisers LLC, a Delaware limited liability company, NB Dyal Advisors LLC and NB Dyal Advisors IV LLC, as applicable.

Diamond Seller Cash Allocation Percentage” means the percentage for each of the Diamond Sellers identified by Nephrite in writing as its respective “Diamond Seller Cash Allocation Percentage” at least two Business Days prior to the Closing Date; provided, that the aggregate Diamond Seller Cash Allocation Percentage for all Diamond Sellers shall not exceed 100%. Notwithstanding the foregoing, the Diamond Seller Cash Allocation Percentage shall be 0% for the Diamond Principals and for Diamond SLP.

Diamond Seller Equity Allocation Percentage” means the percentage for each of the Diamond Sellers identified by Nephrite in writing as its respective “Diamond Seller Equity Allocation Percentage” at least two Business Days prior to the Closing Date; provided, that the aggregate Diamond Seller Equity Allocation Percentage for all Diamond Sellers shall not exceed 100%.

 

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Diamond Sellers” means Nephrite and one or more subsidiaries of Nephrite, including the entities named on Section 1.1(b) of the Diamond Disclosure Letter (including, for the avoidance of doubt, Diamond SLP).

Diamond SLP” means Dyal Capital SLP LP.

Diamond Total Pre-Earnout Consideration” means $6,682,500,000.

Diamond Track Record” means the investment history and performance record of the Diamond Business and any subcomponent thereof, along with all relevant supporting materials.

Diamond Transferred Company” means Diamond Capital Holdings, NB Dyal GP Holdings LLC, Dyal UK Limited, each of their respective successors and each of their direct and indirect Subsidiaries. For the avoidance of doubt, no Diamond Fund nor any of their respective Subsidiaries shall be considered a Diamond Transferred Company.

Disclosure Letters” means Buyer’s Disclosure Letter, Diamond Disclosure Letter and Opal Disclosure Letter.

Disqualification Event” has the meaning set forth in Section 3.17(e).

Domestication” has the meaning set forth in the Recitals.

DPA” means the Defense Production Act of 1950.

Earnout Termination Date” has the meaning set forth in Section 2.17(a).

Electing Opal Units” means Opal Group Class A Units, Opal Group Sponsor B Units or Opal Carry Units, as applicable, (a) which are owned by any Opal Group Blocker that has made a Valid Opal Group Blocker Election or (b) with respect to which the holder thereof has made a Valid Opal Group Partnership Election. Notwithstanding the foregoing, no Opal Group Class A Units, Opal Group Sponsor B Units or Opal Carry Units shall be Electing Opal Units for purposes of Section 2.3(b) to the extent the holder thereof (or any holder of any Opal Group Blocker that is the holder thereof) is in material breach at the Closing of any representation, warranty, covenant or agreement set forth in the Opal Group Holder Election Form or any document or agreement executed in connection with the making of a Valid Opal Group Blocker Election or Valid Opal Group Partnership Election (including covenants and agreements to be performed at the Closing).

Employee Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each equity, phantom equity, or equity-based compensation, retirement, pension, savings, profit sharing, bonus, incentive, severance, separation, employment, individual consulting or individual independent contractor, change in control, retention, deferred compensation, vacation, paid time off, medical, dental, life or disability, retiree or post-termination health or welfare, salary continuation, fringe or other compensatory or benefit plan, program, policy, arrangement or Contract.

Environmental Laws” means all Laws concerning public or worker health and safety with respect to exposure to Hazardous Substances, pollution, or protection of the environment.

 

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Equity Financing Sources” means Persons that have entered into Subscription Agreements to purchase for cash the Buyer Class A Common Stock from the Buyer pursuant to a PIPE Financing on or prior to the date of this Agreement.

Equity Securities” means with respect to any Person, all (a) units, capital stock, partnership interests, or other equity interests (including classes, groups, or series thereof having such relative rights, powers, or obligations as may from time to time be established by the issuer thereof or the governing body of its Affiliate, as the case may be, including rights, powers, or duties different from, senior to or more favorable than existing classes, groups, and series of units, stock, and other equity interests and including any so-called “profits interests”), or securities or agreements providing for profit participation features, equity appreciation rights, phantom equity, or similar rights to participate in profits or revenues, (b) warrants, options, or other rights to purchase or otherwise acquire, or contracts or commitments that could require the issuance of, securities described in the foregoing clause of this definition, and (c) obligations, evidences of indebtedness, or other securities or interests convertible or exchangeable into securities described in the foregoing clauses of this definition.

ERISA” means the Employee Retirement Income Security Act of 1974.

Escrow Agent” means a nationally-recognized escrow agent reasonably agreed upon by the Buyer, Opal Group and Nephrite prior to the Closing Date.

Escrow Agreement” means an escrow agreement, in form to be reasonably agreed upon by the Buyer, Opal Feeder, Nephrite and the Escrow Agent prior to the Closing Date.

Escrow Amount” means $10,000,000.

Escrow Fund” means, at any given time after the Closing, the funds remaining in the one or more accounts in which the Escrow Agent has deposited the Escrow Amount in accordance with the Escrow Agreement, including remaining interest or other amounts actually earned thereon (if any).

Exchange” has the meaning given to such term in the Exchange Agreement.

Exchange Agreement” means the Exchange Agreement in the form attached to this Agreement as Exhibit J.

Excluded Diamond Assets” means the assets set forth on Section 1.1(c) of the Diamond Disclosure Letter.

Executed Employment Agreement” has the meaning set forth in the Recitals.

Existing Buyer Class A Common Stock” means the Class A ordinary shares of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Amended and Restated Memorandum and Articles of Association.

 

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Existing Buyer Class B Common Stock” means the Class B ordinary shares of the Buyer, par value $0.0001 per share, authorized pursuant to the Buyer Amended and Restated Memorandum and Articles of Association.

Existing Buyer Preferred Shares” has the meaning set forth in Section 7.2(a).

Existing Buyer Public Securities” means the Existing Buyer Public Units, the Existing Buyer Class B Common Stock and the Existing Buyer Public Warrants.

Existing Buyer Public Units” means the units issued in the Buyer’s initial public offering (including overallotment units acquired by the Buyer’s underwriter) consisting of one share of Existing Buyer Class A Common Stock and one-third of one Existing Buyer Public Warrant.

Existing Buyer Public Warrant” means one whole warrant that was included as part of the Existing Buyer Public Units, entitling the holder thereof to purchase one share of the Existing Buyer Class A Common Stock at an exercise price of $11.50.

Existing Diamond Flagship Funds” means Diamond Fund I, Diamond Fund II, Diamond Fund III, Diamond Fund IV and Diamond Fund V.

Existing Opal Carry LP Agreement” means the Amended and Restated Agreement of Limited Partnership of Opal Carry, dated as of September 3, 2020.

Existing Opal Feeder LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Opal Feeder, dated as of September 30, 2019.

Existing Opal Group LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of Opal Group, dated as of September 3, 2020.

Existing Opal Opportunistic Carry LPA” means the Amended and Restated Agreement of Limited Partnership of Opal Opportunistic Carry, dated as of July 28, 2020.

Extended Outside Date” has the meaning set forth in Section 13.1(c).

Fall-Away Rights” has the meaning set forth in Section 10.31.

Family Members” means, with respect to any natural person, (a) (i) the spouse and lineal descendants (whether natural or adopted) of such person, (ii) any spouse of any of the individuals described in clause (i), and (iii) a trust solely for the benefit of any individuals described in the foregoing clauses (i) through (ii); and (b) any siblings or parents of any of the individuals described in clause (a)(i) through (ii); provided that, with respect to any representation or warranty related to a Family Member, clause (b) shall be limited to the Knowledge of Nephrite or Opal (as applicable).

Federal Trade Commission Act” means the Federal Trade Commission Act of 1914.

FIC Assets” means the Opal Group FIC Assets and Opal Feeder FIC Assets, collectively.

FIC Subsidiaries” means Opal Feeder FIC, Opal Group FIC Holdings and their respective Subsidiaries.

 

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Filing” means any registration, petition, statement, application, schedule, form, declaration, notice, notification, report, submission or other filing.

Final Allocation” has the meaning set forth in Section 12.6.

Final Determination” means, with respect to a dispute, an occurrence where (a) the parties to the dispute have reached an agreement in writing, (b) a court of competent jurisdiction shall have entered a final and non-appealable Order or judgment with respect to such dispute, or (c) an arbitration or like panel shall have rendered a final non-appealable determination with respect to disputes the parties have agreed to submit thereto.

Final Tax Basis Balance Sheet” has the meaning set forth in Section 12.6.

Financing Indemnified Persons” has the meaning set forth in Section 10.17(b).

FINRA” means the Financial Industry Regulatory Authority, Inc.

Foreign Person” means a “foreign person” as such term is defined in Section 721 of the DPA.

Forfeiture and Support Agreement” has the meaning set forth in the Recitals.

Form BD” has the meaning set forth in Section 5.23(c).

Fraud” means a knowing and intentional fraud committed by a Party in the making of a representation or warranty expressly set forth in this Agreement or any Ancillary Agreement or in any certificate delivered pursuant hereto or thereto, as applicable; provided that (a) such representation or warranty was materially false or materially inaccurate at the time such representation or warranty was made, (b) the Party making such representation or warranty had actual knowledge (and not imputed or constructive knowledge), without any duty of inquiry or investigation, that such representation or warranty was materially false or materially inaccurate when made, and (c) such Party had the specific intent to deceive another Party and induce such other Party to enter into this Agreement or consummate the transactions contemplated by this Agreement, as applicable. For the avoidance of doubt, (x) the term “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence or recklessness, and (y) only the Party to this Agreement who committed a Fraud shall be responsible for such Fraud and only to the Party alleged to have suffered from such alleged Fraud.

Future Diamond Funds” means, excluding Diamond Fund V and Diamond Finance Fund, any investment fund, limited partnership, limited liability company, corporation or other similar collective investment vehicle, separately managed account, fund of one, co-investment vehicle, acquisition vehicle (including special purposes acquisition vehicles) or similar contractual arrangement commencing investment activities after the date hereof, in each case that is managed by the Diamond Business.

GAAP” means United States generally accepted accounting principles, consistently applied.

 

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Governing Documents” means (a) in the case of a corporation, its certificate of incorporation (or analogous document) and bylaws; (b) in the case of a limited liability company, its certificate of formation (or analogous document) and limited liability company operating agreement; (c) in the case of a limited partnership, its certificate of limited partnership (or analogous document) and limited partnership agreement; or (d) in the case of a Person other than a corporation or limited liability company, the documents by which such Person (other than an individual) establishes its legal existence or which govern its internal affairs.

Governmental Entity” means any nation or government, any state, province, county, municipal or other political subdivision thereof, any entity exercising executive, legislative, tribal, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator or arbitral panel (in each case public or private), or other body or administrative, regulatory, Self-Regulatory Organization or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

GP Minority Equity Investments Strategy” means the investment strategy of the Existing Diamond Flagship Funds of acquiring minority stakes of Equity Securities in investment management businesses or fund sponsors.

Hazardous Substance” means any waste, substance, or material defined or regulated as “hazardous,” “toxic,” a “pollutant,” or a “contaminant,” or with words of similar meaning and regulatory effect, under, or for which liability may be imposed pursuant to, Environmental Laws.

HK Diamond Business Employees” has the meaning set forth on Section 1.1(d) of the Diamond Disclosure Letter.

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

Inactive Employee” has the meaning given to such term in Section 10.15(d).

Income Tax Returns” means Tax Returns relating to Income Taxes.

Income Taxes” means Taxes (a) imposed on, or with reference to, the net income or gross receipts of the person on whom such Tax is imposed (or its direct or indirect owners), or (b) imposed on, or with reference to, multiple bases including the net income or gross receipts of the person on whom such Tax imposed (or its direct or indirect owners). For the avoidance of doubt, “Income Taxes” includes net-basis U.S. federal, state, local, and non-U.S. income taxes (including the New York City Unincorporated Business Tax) and net or gross-basis withholding tax imposed on any partnership or other pass-through entity in respect of allocations or distributions to its direct or indirect owners (including under Code Sections 1441, 1442, 1445, 1446 or any similar provision of state, local or non-U.S. law) but does not include payroll, employment, withholding to lessors, employees or other service providers, sales, use, commercial rent, value added, property or similar Taxes.

Indebtedness” means, with respect to a Party, without duplication: (a) all indebtedness for borrowed money or indebtedness issued or incurred in substitution or exchange for indebtedness for borrowed money; (b) all indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security; (c) all indebtedness for borrowed money of any Person for

 

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which such Party has guaranteed payment; (d) all capitalized Lease obligations or obligations required to be capitalized in accordance with GAAP; (e) any Liabilities in respect of deferred purchase price for property or services with respect to which such Person is liable, contingently or otherwise, as obligor or otherwise for additional purchase price (excluding any purchase commitments for capital expenditures or otherwise incurred in the Ordinary Course of Business); (f) reimbursement obligations under any drawn letters of credit; and (g) obligations under derivative financial instruments, including hedges, currency and interest rate swaps and other similar instruments, in each case excluding any Intercompany Indebtedness.

Indemnified Party” has the meaning set forth in Section 14.5(a).

Indemnifying Party” has the meaning set forth in Section 14.5(a).

Intellectual Property Rights” means all intellectual property rights in any jurisdiction throughout the world, whether registered or unregistered, including the following: (a) inventions (whether or not patentable or reduced to practice), all improvements thereto and all patents and industrial designs (including utility model rights, design rights, and industrial property rights), patent and industrial design applications and registrations, and patent disclosures, together with all reissues, continuations, continuations-in-part, revisions, divisionals, extensions, and reexaminations in connection therewith; (b) trademarks, service marks, trade dress, logos, slogans, trade names, business names, Internet domain names, social media identifiers, and all other indicia of origin, all applications and registrations in connection therewith, and all goodwill associated with any of the foregoing (“Trademarks”); (c) copyrights, mask works and designs, database rights, and moral rights, and all applications, registrations, and renewals in connection therewith; (d) trade secrets and know-how, processes, procedures, confidential business information and other proprietary information and rights; (e) rights of privacy and publicity, including rights to the use of names, likenesses, images, voices, signatures, and biographical information of real persons; and (f) rights in Software.

Intended Tax Treatment” has the meaning set forth in Section 12.5.

Intercompany Indebtedness” means (a) in the case of the Diamond Transferred Companies, any Liabilities solely between or among Diamond Transferred Companies and (b) in the case of the Opal Transferred Companies, any Liabilities solely between or among Opal Transferred Companies.

Investment Adviser” has the meaning set forth in Section 5.26(c).

Investment Advisers Act” means the Investment Advisers Act of 1940.

Investment Advisory Services” means investment management or investment advisory services, including any subadvisory services, or any other services that involve acting as an “investment adviser” within the meaning of the Investment Advisers Act, and performing ancillary services and activities related or incidental thereto.

Investment Company Act” means the Investment Company Act of 1940.

Investor Rights Agreement” has the meaning set forth in the Recitals.

 

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Key Professionals” means, collectively, Marc Lipschultz, Doug Ostrover and Michael Rees.

Knowledge” (a) as used in the phrase “to the Knowledge of Nephrite” or phrases of similar import means the actual knowledge of any of the individuals listed in Section 1.1(e) of the Diamond Disclosure Letter, (b) as used in the phrase “to the Knowledge of Opal Group,” “to the Knowledge of Opal Feeder,” or “to the Knowledge of Opal Partners” or phrases of similar import, in each case, means the actual knowledge of any of the individuals listed in Section 1.1(e) of the Opal Disclosure Letter, and (c) as used in the phrase “to the Knowledge of the Buyer” or phrases of similar import means the actual knowledge of the individuals listed in Section 1.1(e) of the Buyer’s Disclosure Letter.

Latest Balance Sheet Date” has the meaning set forth in Section 3.4(a)(ii).

Latest Diamond Balance Sheet” has the meaning set forth in Section 3.4(a)(ii).

Latest Opal Balance Sheet” has the meaning set forth in Section 5.4(a)(ii).

Laws” means all laws, acts, statutes, constitutions, treaties, ordinances, codes, rules, Orders and regulations of a Governmental Entity, including common law.

Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures, or other interest in real property held by the Nephrite Group (solely to the extent related to the Diamond Business) or the Opal Family (solely to the extent related to the Opal Business) (as applicable).

Leases” means all leases, subleases, licenses, concessions, and other agreements (written or oral) pursuant to which the Nephrite Group (solely to the extent related to the Diamond Business) or the Opal Family (solely to the extent related to the Opal Business) holds any Leased Real Property.

Liability” or “Liabilities” means any and all debts, liabilities and obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable.

Liens” means, with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, licenses, rights of priority, easements, covenants, restrictions and security interests thereon and any transfer restrictions including rights of first refusal, rights of first offer and preemptive rights.

Losses” means any and all damages, losses, charges, liabilities, claims, demands, actions, suits, proceedings, payments, judgments, settlements, assessments, deficiencies, taxes, interest, fines, penalties and costs and expenses (including expenses of investigation and reasonable and documented out-of-pocket legal fees, costs and expenses sustained or incurred by an Indemnified Party).

LTIP” has the meaning set forth in Section 10.7.

 

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Material Leases” means all Leases for each Leased Real Property which provides for a current monthly base rent allocable to the Diamond Business or Opal Business, as applicable, in the case of shared leased real property of more than $150,000.

Merger Sub 1” means a Delaware limited liability company that is to be formed as a wholly owned subsidiary of Blue Owl Holdings and held prior to Closing exclusively for the purposes of consummating the transactions contemplated by this Agreement.

Merger Sub 2” means a Delaware limited liability company that is to be formed as a wholly owned subsidiary of Blue Owl Carry and held prior to Closing exclusively for the purposes of consummating the transactions contemplated by this Agreement.

Misplaced Diamond Assets” has the meaning set forth in Section 10.23(a).

Misplaced Opal Assets” has the meaning set forth in Section 10.23(b).

Name Change” has the meaning set forth in the Recitals.

Nephrite” has the meaning set forth in the Preamble.

Nephrite Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization; Authority; Enforceability); Section 4.2 (Capitalization); Section 4.5 (Brokerage) and Section 4.6 (Investment Intent).

Nephrite Group” means Nephrite and its Subsidiaries. Notwithstanding the foregoing, none of the Diamond Funds or any accounts, funds, vehicles or other client advised or sub-advised by the Nephrite Group (or any portfolio company or other investment thereof) shall be a member of the Nephrite Group for purposes of this Agreement. For the avoidance of doubt, following the Closing, the Diamond Transferred Companies shall cease to be part of the Nephrite Group.

Nephrite Indemnified Parties” has the meaning set forth in Section 14.1.

Nephrite Indemnified Persons” has the meaning set forth in Section 10.17(b).

Nephrite Indemnified Taxes” means (a) all Taxes (or the non-payment thereof) arising out of or resulting from the Diamond Reorganization, (b) all Taxes (or the non-payment thereof) of any member of the Nephrite Group with respect to the conduct of any business of the Nephrite Group other than the Diamond Business or the ownership of assets of the Nephrite Group other than the Diamond Assets for any taxable period or portion thereof, (c) any Taxes imposed on or with respect to the Excluded Diamond Assets for any taxable period or portion thereof, and (d) all Diamond Pre-Closing Income Taxes. For the avoidance of doubt, for purposes of clause (b) above, the Diamond Transferred Companies shall not be treated as members of the Nephrite Group to the extent relating to periods after the Closing.

Nephrite Indemnity Cap” has the meaning set forth in Section 14.7(b).

Nephrite Marks” means (a) Neuberger Berman and NB (b) any other Trademarks owned by the Nephrite Group, and (c) any name, mark or design incorporating, referencing, combining or confusingly similar to any of the foregoing terms or designs. Notwithstanding the foregoing, Nephrite Marks shall not include the Diamond Marks.

 

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Nephrite Parties” has the meaning set forth in Section 15.2(a).

Nephrite Restricted Personnel” means all employees of Nephrite or its controlled Affiliates, other than the Diamond Business Employees, hired prior to Closing (including for the avoidance of doubt prior to the date of this Agreement).

Non-Electing Opal Sellers” means any holder of Opal Group Class A Units, Opal Group Sponsor B Units or Opal Carry Units with respect to any such units that are not Electing Opal Units.

Non-Party Affiliate” has the meaning set forth in Section 15.14.

NYSE” has the meaning set forth in Section 7.8.

Offer Transferred Employees” has the meaning given to such term in Section 10.15(d).

Opal Acquired Business Records” means all books, records, ledgers, financial statements, electronic mail archives, Client information (including in respect of investors in any Client) and files and other information (whether in written or electronic form) relating to the Opal Assets and the Opal Funds, including the employment file and other records that relate to each Opal Principal and each Opal Group Employee and documents supporting or otherwise related to the Opal Track Record.

Opal Affiliate Arrangement” has the meaning set forth in Section 5.10(a)(i).

Opal Assets” means each of the assets, properties, rights and interests of the Opal Family, whether tangible or intangible, real, personal or mixed, to the extent primarily used or held for use in connection with the ownership and operation of the Opal Business, which shall include, for the avoidance of doubt, the following, in each case, solely to the extent primarily used or held for use in connection with the ownership and operation of the Opal Business:

(a) each Client Contract with respect to the Opal Business;

(b) each Opal Material Contract;

(c) the Opal Track Record;

(d) the Opal Acquired Business Records;

(e) the Opal Transferred Companies;

(f) all Intellectual Property Rights of the Opal Family primarily or exclusively used or held for use by the Opal Business;

(g) rights to all management fees and other fees earned by the Opal Business (including in respect of all lines of the Opal Business, whether in respect of successor flagship Opal Funds or other investment products of the Opal Business);

(h) rights to the Promote Distributions generated by the Opal Funds;

 

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(i) all claims, judgments or causes of action to the extent related to any of the Opal Assets; and

(j) all counterclaims, set-offs, recoupment rights or defenses with respect to the Opal Liabilities.

Notwithstanding the foregoing or anything to the contrary herein, “Opal Assets” shall not include, in each case other than (and “Opal Assets” shall include) the Opal Transferred Companies: (i) the FIC Assets or (ii) the assets, properties, rights and interests of (A) Opal Feeder (other than its interests in Opal Group), (B) Opal Partners or (C) ORCP AH LLC, a Delaware limited liability company or its subsidiaries.

Opal Blocker Seller Representative” means for each Opal Group Blocker making a Valid Opal Group Blocker Election, the person identified as such in the Opal Group Blocker Merger Agreement for such Opal Group Blocker.

Opal Broker-Dealer FINRA Approval” has the meaning set forth in Section 10.11(e).

Opal Broker-Dealer Subsidiary” means Owl Rock Capital Securities LLC, a Delaware limited liability company.

Opal Business” means the business and operations related to sponsoring, offering and management of the Opal Funds and any successor funds thereof, including the Opal Transferred Companies and their respective business, operations and service. For the avoidance of doubt, the Opal Business excludes (v) the right to 85% of Promote Distributions generated by the Opal Funds (other than the the BDCs) (subject to dilution in the event of Specified Equity issuances), (w) the Opal Funds, in and of themselves (as opposed to control of the Opal Funds (which, other than with respect to the BDCs (which are each controlled by a board of directors), the Opal Business does include)), (x) any Subsidiary of any Opal Funds, (y) the FIC Assets (other than cash) and (z) any Specified Equity issued in connection with the Opal Business.

Opal Business Fundamental Representations” means the representations and warranties set forth in Section 5.1 (Organization; Authority; Enforceability); Section 5.2 (Capitalization and Related Matters); and Section 5.14 (Brokerage).

Opal Carry” means Owl Rock Capital Group Carry AIV, L.P., a Delaware limited partnership.

Opal Carry Aggregator” means Owl Rock Carry Aggregator, L.P., a Delaware limited partnership to be formed in connection with the Opal Reorganization for the purpose of holding unallocated employee carried interest and performance fees in respect of existing or future Opal Funds and any other parallel entity formed with a substantially similar purpose of the Opal Carry Aggregator.

Opal Carry Equity Consideration” means a portion of the Opal Equity Consideration equal to the Blue Owl Carry Percentage thereof.

 

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Opal Carry Reorganization” means (a) with respect to carried interest (but not performance fees or incentive allocation), (i) the formation of Opal Carry Aggregator, 15% of the limited partnership interests of which shall be owned by Opal Carry and the remainder of which shall be owned by Opal Employee Carry, with Opal Carry GP, LLC as the general partner of Opal Carry Aggregator, (ii) the contribution by Opal Carry and Opal Employee Carry of all of their respective limited partnership interests of Opal Opportunistic Carry to Opal Carry Aggregator, and (iii) the assignment by Opal Group of all right, title and interest of it and its Subsidiaries (if any) in and to the carried interest (but not performance fees or incentive allocation) arising in respect of all of the existing and future Opal Funds to Opal Carry Aggregator (including that, as a result of such assignment, any such carried interest currently payable to Opal Group by Opal Funds are instead payable directly to Opal Carry Aggregator), with the resulting ownership of Opal Carry Aggregator being 85% by Opal Employee Carry (or its designees) and 15% directly or indirectly by Blue Owl Carry and (b) with respect to performance fees or incentive allocation (except with respect to the BDCs and, for the avoidance of doubt, not carried interest), the assignment, directly or indirectly, by Opal Group of all right, title and interest of it and its Subsidiaries (if any) in and to 85% of all performance fees or incentive allocation (except with respect to the BDCs and, for the avoidance of doubt, not carried interest) arising in respect of all of the existing and future Opal Funds to an entity controlled by an Affiliate of PubCo.

Opal Carry Surviving LP Agreement” has the meaning set forth in Section 2.3(b)(ii).

Opal Cash Consideration” means the result equal to (a) $350,000,000 minus (b) 50% of the Available Cash Shared Shortfall Amount minus (c) the Escrow Amount minus (d) the absolute value of the Opal Closing Deficit (if any). Notwithstanding the foregoing sentence, in no event shall the Opal Cash Consideration be less than $0.00 for purposes of this Agreement.

Opal Closing Adjustment Amount” means the result, whether positive or negative, equal to (a) $355,900,000 plus (b) the Opal Estimated Closing Net Working Capital minus (c) the Opal Estimated Indebtedness Amount. A positive Opal Closing Adjustment Amount is an “Opal Closing Excess,” and a negative Opal Closing Adjustment Amount is an “Opal Closing Deficit.”

Opal Closing Estimate Statement” has the meaning set forth in Section 2.5(c).

Opal Closing Net Working Capital” means the Opal Net Working Capital as of immediately following the Opal Reorganization.

Opal Common Unit Consideration” means a number of each of (a) Blue Owl Holdings Common Units, (b) Blue Owl Carry Common Units and (c) Applicable Vote Only Shares equal to (and in lieu of) the number of the Buyer Class A Shares and the Buyer Class E Shares to which a holder of Opal Group Class A Units, Opal Group Sponsor B Units or Opal Carry Units is entitled in respect of each Opal Group Class A Unit, Opal Group Sponsor B Unit or Opal Carry Unit held by such holder pursuant to Section 2.3(b) pursuant to a Valid Opal Group Partnership Election. The portion of the Blue Owl Holdings Common Units and Blue Owl Carry Common Units received in lieu of the Buyer Class E Shares shall be Seller Earnout Units.

Opal Company” has the meaning set forth in Section 5.2(a).

Opal Disclosure Letter” means the Disclosure Letter delivered by Opal Group concurrently with the execution and delivery of this Agreement.

 

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Opal Employee Benefit Plan” means each Employee Benefit Plan (a) that is maintained, sponsored or contributed to (or required to be contributed to) by any Opal Transferred Company or (b) under or with respect to which the Opal Family (solely to the extent related to the Opal Business) has any Liability in respect of any current or former Opal Group Employee or consultant of the Opal Business, but excluding any Opal PEO Plan.

Opal Employee Carry” means Opal Employee Carry, L.P., a Delaware limited partnership.

Opal Equity Consideration” means the result equal to (a) $5,117,500,000, minus (b) the amount of any Opal Special Liabilities, plus (c) 50% of the Available Cash Shared Shortfall Amount. Notwithstanding the foregoing sentence, if the Opal Cash Consideration is $0.00, then the Parties shall adjust the Opal Equity Consideration in good faith such that the Opal Sellers bear the Escrow Amount and any Opal Closing Deficit.

Opal Estimated Closing Net Working Capital” means the estimated Opal Closing Net Working Capital as set forth in the Opal Closing Estimate Statement.

Opal Estimated Indebtedness Amount” means the estimated Opal Indebtedness Amount as set forth in the Opal Closing Estimate Statement.

Opal Family” means Opal Partners and its Subsidiaries. Notwithstanding the foregoing, none of the Opal Funds (or any portfolio company or other investment thereof) shall be a member of the Opal Family for purposes of this Agreement. For the avoidance of doubt, following the Closing, the Opal Transferred Companies shall cease to be part of the Opal Family.

Opal Feeder” has the meaning set forth in the Preamble.

Opal Feeder FIC” means Owl Rock Feeder FIC LLC, a Delaware limited liability company.

Opal Feeder FIC Assets” means “FIC Assets” as defined in the Existing Opal Feeder LLC Agreement. The membership interests of Opal Feeder FIC are Opal Feeder FIC Assets.

Opal Final Adjustment Amount” means the result, whether positive or negative, equal to (a) $355,900,000 plus (b) the Opal Closing Net Working Capital minus (c) the Opal Indebtedness Amount plus (d) the absolute value of the Opal Closing Deficit (if any). A positive Opal Final Adjustment Amount is an “Opal Final Excess,” and a negative Opal Final Adjustment Amount is an “Opal Final Deficit.”

Opal Financial Statements” has the meaning set forth in Section 5.4(a).

Opal Fund” means each Opal SMA Client, BDC and Opal Private Fund.

Opal Fund Documentation” means, with respect to each Opal Fund, all organizing documents, including its memorandum and articles of incorporation, limited partnership agreement or other constitutional documents and form of subscription documents (including investor side letters), in each case, that as of the date of this Agreement, are in effect and material to such Opal Fund.

 

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Opal Fundamental Representations” means the representations and warranties set forth in Section 6.1 (Organization; Authority; Enforceability); Section 6.2 (Capitalization); Section 6.5 (Brokerage); Section 6.6 (Investment Intent); Section 8.1 (Organization; Authority; Enforceability); and Section 8.4 (Brokerage).

Opal Group” has the meaning set forth in the Preamble.

Opal Group Additional Equity Consideration” means $450,000,000.

Opal Group Blocker” means a “Blocker” as defined in the Existing Opal Group LLC Agreement.

Opal Group Blocker Merger” means a merger of a wholly owned merger subsidiary of Blue Owl GP that is taxed as a corporation for U.S. federal income Tax purposes with and into an Opal Group Blocker.

Opal Group Blocker Merger Agreement” means an agreement in substantially the form attached to this Agreement as Exhibit K, as such form may be amended with respect to any Opal Group Blocker as consented to in writing by Opal Group, Nephrite and the Buyer (in each case, such consent not to be unreasonably withheld, delayed or conditioned).

Opal Group Class A Member” means a “Class A Member” (as defined in the Existing Opal Group LLC Agreement) of Opal Group.

Opal Group Class A Offset Amount” has the meaning set forth in Section 2.3(d).

Opal Group Class A Unit Pro Rata Share” means the percentage determined by dividing (a) the number of Opal Group Class A Units issued and outstanding immediately prior to the Opal Group Merger by (b) the number of Opal Group Class A Units and Opal Group Sponsor B Units issued and outstanding immediately prior to the Opal Group Merger.

Opal Group Class A Units” means “Class A Units” as defined in the Existing Opal Group LLC Agreement.

Opal Group Earnout Capital Contributions” means “Earnout Capital Contributions” as defined in the Existing Opal Group LLC Agreement.

Opal Group Earnout Notice” means the “Earnout Notice” as defined in the Existing Opal Group LLC Agreement.

Opal Group Employee” means each employee of Opal Group or its Subsidiaries.

Opal Group Equity Consideration” means the result equal to (a) the Opal Equity Consideration minus (b) the Opal Carry Equity Consideration.

Opal Group FIC Assets” means “FIC Assets” as defined in the Existing Opal Group LLC Agreement. The membership interests of Opal Group FIC Holdings are Opal Group FIC Assets.

 

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Opal Group FIC Holdings” means Owl Rock Capital FIC Holdings, LLC, a Delaware limited liability company.

Opal Group FIC Holdings Amount” means the sum of (a) the amount of cash held by Opal Group FIC Holdings immediately prior to the Opal Group Merger, plus (b) without duplication, the amount of any cash contributed to Opal Group prior to the Opal Group Merger as Opal Group Earnout Capital Contributions, plus (c) the Opal Group Class A Offset Amount.

Opal Group FIC Units” means “FIC Units” as defined in the Existing Opal Group LLC Agreement.

Opal Group Holder Election Deadline” means the date set forth in the information statement provided to the holders of Opal Group Class A Units in connection with providing the Opal Group Holder Election Form, as the same may be extended by Opal Partners as provided therein.

Opal Group Holder Election Form” means an Opal Group Holder Election Form distributed by Opal after the date of this Agreement in order to allow each holder of Opal Group Class A Units, Opal Group Sponsor B Units and Opal Carry Units to make, if such holder determines, a Valid Opal Group Blocker Election or Valid Opal Group Partnership Election.

Opal Group Merger” has the meaning set forth in Section 2.3(a).

Opal Group Pre-Additional Consideration” means the sum of (a) the Opal Group Equity Consideration plus (b) the Opal Cash Consideration.

Opal Group Sponsor B Unit Pro Rata Share” means 100% minus the Opal Group Class A Unit Pro Rata Share.

Opal Group Sponsor B Units” means “Sponsor B Units” as defined in the Existing Opal Group LLC Agreement.

Opal Group Surviving LLC Agreement” has the meaning set forth in Section 2.3(a)(ii).

Opal Indebtedness” means the aggregate principal amount of any indebtedness for borrowed money of the Opal Transferred Companies, and guarantees by the Opal Transferred Companies of any indebtedness for borrowed money of any other Person other than the Opal Transferred Companies, excluding any Intercompany Indebtedness and any Opal Special Liabilities.

Opal Indebtedness Amount” means, without duplication of any amounts included in the Opal Closing Net Working Capital, the amount of Opal Indebtedness as of immediately following the Opal Reorganization.

Opal Indemnified Party” has the meaning set forth in Section 14.2.

Opal Indemnified Persons” has the meaning set forth in Section 10.17(b).

 

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Opal Indemnified Taxes” means (a) all Taxes (or the non-payment thereof) arising out of or resulting from the Opal Reorganization and (b) all Opal Pre-Closing Income Taxes.

Opal Insurance Plans” has the meaning set forth in Section 5.25.

Opal Liability” means all Liabilities to the extent relating to or arising from the Opal Business or any Opal Assets, including all Liabilities relating to the conduct or ownership of the Opal Business or any Opal Assets prior to, on or following the Closing and regardless of whether such Liability existed or arises prior to, on or following the Closing, other than Retained Opal Liabilities, Income Taxes and Opal Indemnified Taxes. Without limiting the reduction to the Opal Equity Consideration with respect thereto, Opal Special Liabilities shall be excluded from “Opal Liabilities” for all purposes of this Agreement.

Opal Material Adverse Effect” means an event, change, circumstance, occurrence, fact, development or effect, individually or in the aggregate, that would reasonably be expected to (x) be materially adverse to the business, assets, properties, financial condition or results of operation of the Opal Business, taken as a whole, or (y) prevent or materially delay the ability of Opal Group to consummate the transactions contemplated by this Agreement; provided that none of the following shall constitute an “Opal Material Adverse Effect”: (a) events, changes, circumstances, occurrences, facts, developments or effects that are the result of factors generally affecting the industries or jurisdictions in which the Opal Business operates or participates; (b) changes in general economic conditions affecting the national, regional or world economy; (c) any national or international political conditions in or affecting any jurisdiction in which the Opal Business conduct business (including the outcome of the 2020 United States presidential election or the 2020 special elections for the United States Senators from the State of Georgia); (d) any strike, embargo, labor disturbance, riot, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire, other weather-related or meteorological event, pandemic (including the COVID-19 pandemic and any COVID-19 Measures), epidemic, disease outbreak or other natural disaster or act of god; (e) the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States, or any United States territories, possessions or diplomatic or consular offices or upon any United States military installation, equipment or personnel; (f) changes in GAAP or in applicable Law or in interpretations thereof by courts or other Governmental Entities, in each case, after the date of this Agreement; (g) any adverse event, change, circumstance, occurrence, fact, development or effect caused by any announcement, pendency or consummation of the transactions contemplated by this Agreement (except this clause (g) shall not apply with respect to any representation or warranty that is intended to address the consequences of the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated by this Agreement); (h) actions taken or omitted at the written request of Nephrite and the Buyer, with the prior written consent of Nephrite and the Buyer or any action expressly required by this Agreement or any action omitted as a result of requesting a consent required under this Agreement from Nephrite and the Buyer if Nephrite or the Buyer denies such consent; or (i) any failure of the Opal Business to meet any forecasts or revenue, earnings, or fundraising or other projections; provided that the underlying cause of the Opal Business’s failure to meet such forecasts or revenue, earnings, or fundraising or other projections shall be taken into account to the extent not otherwise excluded under this Agreement; provided that, with respect to clause (a), clause (b), clause (c), clause (d), clause (e) or clause (f)

 

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above, such events, changes, circumstances, occurrences, facts, developments or effects may be taken into account to the extent they disproportionately adversely affect the Opal Business, taken as a whole, relative to other businesses in the industries in which the Opal Business operates or participates.

Opal Material Contracts” has the meaning set forth in Section 5.10(a).

Opal Net Working Capital” means the difference (which may be positive or negative) between (a) the sum of cash and current receivables (including for payments on behalf of or due from Opal Funds) of Opal Group on a consolidated basis minus (b) current operating expenses of Opal Group reasonably expected to arise in the period after the Closing, and accrued anticipated bonuses and other expenses of Opal Group in respect of the periods ending on or prior to the Closing (including the portion of any period that includes the Closing Date), in each case calculated consistent with the Unaudited Opal Financial Statements and in a manner consistent with the sample working capital statement attached hereto as Section 1.1(f) of the Opal Disclosure Letter.

Opal Opportunistic Carry” means Owl Rock Opportunistic Carry, L.P., a Delaware limited partnership.

Opal Parties” has the meaning set forth in Section 15.2(a).

Opal Partners” has the meaning set forth in the Preamble.

Opal PEO Plan” means Employee Benefit Plan maintained solely by a PEO for the benefit of any current or former Opal Group Employee and under which no member of the Opal Family is a participating employer.

Opal Pre-Closing Income Taxes” means (a) all Income Taxes (or the non-payment thereof) of any Opal Transferred Company or with respect to the Opal Business for any Pre-Closing Tax Period, (b) all Income Taxes of any member (other than an Opal Transferred Company) of an affiliated, consolidated, combined or unitary group of which any Opal Transferred Company (or any predecessor of any Opal Transferred Company) is or was a member prior to the Closing, including pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar state, local, or non-U.S. Law, and (c) all Income Taxes of any Person (other than an Opal Transferred Company) imposed on any Opal Transferred Company as a transferee or successor, by Contract (other than Ordinary Course Tax Sharing Agreements), or pursuant to any Law, which Income Taxes relate to an event or transaction occurring before the Closing.

Opal Principals” means Doug Ostrover, Marc Lipschultz, Craig Packer and Alan Kirshenbaum.

Opal Privacy and Security Policies” has the meaning set forth in Section 5.12(a).

Opal Private Funds” means those entities listed on Section 1.1(a)(i) of the Opal Disclosure Letter.

 

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Opal Pro Rata Portion” means, (a) with respect to Opal Feeder, the Opal Group Sponsor B Unit Pro Rata Share, and (b) with respect to the Opal Group Class A Members (collectively), the Opal Group Class A Unit Pro Rata Share.

Opal Prohibited Affiliate Transactions” means any Opal Affiliate Arrangement, other than (a) any Permitted Affiliate Transaction and (b) the transactions contemplated by this Agreement or the Ancillary Agreements, any Opal Affiliate Arrangements.

Opal Reorganization” has the meaning set forth in Section 2.1(b).

Opal RIA Subsidiaries” means each of Owl Rock Capital Advisors LLC, a Delaware limited liability company, Owl Rock Capital Private Fund Advisors LLC, a Delaware limited liability company, Owl Rock Diversified Advisors LLC, a Delaware limited liability company, and Owl Rock Technology Advisors LLC, a Delaware limited liability company.

Opal Sellers” means Opal Feeder and each Opal Group Class A Member.

Opal SMA Clients” means those entities listed on Section 1.1(a)(ii) of the Opal Disclosure Letter.

Opal Special Liabilities” means any Liabilities of any Opal Transferred Company under the Contract set forth on Section 1.1(h) of the Opal Disclosure Letter, as such Contract may be amended or modified prior to Closing in accordance with this Agreement. For the avoidance of doubt, Opal Special Liabilities will be determined without duplication of any amounts included in the Opal Indebtedness Amount or the Opal Net Working Capital.

Opal Track Record” means the investment history and performance record of the Opal Business and any subcomponent thereof, along with all relevant supporting materials.

Opal Transferred Company” means (a) Opal Group and its successors and its and their direct and indirect Subsidiaries, (b) Opal Broker-Dealer Subsidiary and its successors and (c) Opal Carry (as constituted following the Opal Reorganization) and its direct and indirect Subsidiaries. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, none of the following shall be considered an Opal Transferred Company for purpose of this Agreement: (x) any Opal Fund or any of their respective Subsidiaries, (y) Opal Partners and its Subsidiaries other than those expressly listed in clause (a) and clause (b) and (z) the FIC Assets.

Order” means any order, writ, judgment, injunction, decree, ruling or award entered by or with any Governmental Entity.

Ordinary Course of Business” means, with respect to any Person, any action taken or not taken by such Person in the ordinary course of business consistent with past practice.

Ordinary Course Tax Sharing Agreement” means any written commercial agreement entered into in the Ordinary Course of Business of which the principal subject matter is not Tax but which contains customary Tax gross-up or Tax indemnification provisions, including any credit agreement, employment agreement, employee award agreement, or other similar agreement containing such provisions.

 

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Other Diamond Assets” has the meaning set forth in Section 10.23(a).

Other Opal Assets” has the meaning set forth in Section 10.23(b).

Other Representative” means (a) with respect to Tax Returns, Tax Proceedings, or other Tax matters of the Diamond Business and the Diamond Transferred Companies or with respect to any Taxes or Tax matters which are the subject of indemnification under Section 14.3, Opal Partners, and (b) with respect to Tax Returns, Tax Proceedings, or other Tax matters of the Opal Business and the Opal Transferred Companies or with respect to any Taxes or Tax matters which are the subject of indemnification under Section 14.4, Nephrite.

Outside Date” has the meaning set forth in Section 13.1(c).

Owned Intellectual Property” means all Intellectual Property Rights owned or purported to be owned by the Nephrite Group (solely to the extent related to the Diamond Business), the Opal Family (solely to the extent related to the Opal Business) or the Buyer, as applicable.

Partner Manager” means, with respect to the Diamond Business, the investment management businesses or fund sponsors in which an Existing Diamond Flagship Fund owns Equity Securities.

Party” or “Parties” has the meaning set forth in the Preamble.

PCAOB” means the Public Company Accounting Oversight Board.

PEO” means any professional employer organization or manpower agency designated by Opal.

Per Opal Carry Unit Equity Consideration” means the amount determined by dividing (a) the Opal Carry Equity Consideration by (b) the number of Opal Carry Units issued and outstanding immediately prior to the Opal Carry Merger.

Per Opal Group Class A Unit Cash Consideration” means the amount determined by dividing (a) the Opal Cash Consideration by (b) the number of Opal Group Class A Units issued and outstanding immediately prior to the Opal Group Merger.

Per Opal Group Class A Unit Equity Consideration” means the amount determined by dividing (a) the excess of (i) the product of the Opal Group Class A Unit Pro Rata Share multiplied by the Opal Group Pre-Additional Consideration minus (ii) the Opal Cash Consideration by (b) the number of Opal Group Class A Units issued and outstanding immediately prior to the Opal Group Merger.

Per Opal Group Class A Unit Additional Consideration” means the amount determined by dividing (a) the product of (i) the Opal Group Class A Unit Pro Rata Share multiplied by (ii) Opal Group Additional Consideration by (b) the number of Opal Group Class A Units issued and outstanding immediately prior to the Opal Group Merger.

 

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Per Opal Group Sponsor B Unit Equity Consideration” means the amount determined by dividing (a) the excess of (i) the product of the Opal Group Sponsor B Unit Pro Rata Share multiplied by the Opal Group Pre-Additional Consideration by (b) the number of Opal Group Sponsor B Units issued and outstanding immediately prior to the Opal Group Merger.

Per Opal Group Sponsor B Unit Additional Consideration” means the amount determined by dividing (a) the product of (i) the Opal Group Sponsor B Unit Pro Rata Share multiplied by (ii) Opal Group Additional Consideration by (b) the number of Opal Group Sponsor B Units issued and outstanding immediately prior to the Opal Group Merger.

Per Opal Group Unit Cash Consideration” means, without limiting or amending the payment of the Opal Group Earnout Capital Contributions to Opal Group, the quotient determined by dividing the Opal Cash Consideration by the number of Opal Group Class A Units issued and outstanding as of immediately prior to the effective time of the Opal Group Merger.

Per Share Price” means $10.00 per share.

Permit” means all licenses, memberships, registrations, certifications, accreditations, permits, bonds, franchises, approvals, authorizations, consents, or orders of, notifications to or filings with any Governmental Entity.

Permitted Affiliate Transactions” means Tax Distributions and any item set forth on Section 3.22 of the Diamond Disclosure Letter and Section 5.22 of the Opal Disclosure Letter.

Permitted Liens” means with respect to the assets and property of the Nephrite Group (solely to the extent related to the Diamond Business) or Opal Group (solely to the extent related to the Opal Business), as applicable: (a) statutory Liens for current Taxes or other governmental charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings and, in either case, for which appropriate reserves have been established in accordance with GAAP (to the extent such reserves are required by GAAP); (b) mechanics’, materialmens’, carriers’, workers’, repairers’, and similar statutory Liens arising or incurred in the Ordinary Course of Business for amounts which are not due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP (to the extent such reserves are required by GAAP) and which shall be paid in full and released at the Closing; (c) zoning, entitlement, building, and other land use regulations imposed by Governmental Entities having jurisdiction over the Leased Real Property that are not violated by the current use or occupancy of such Leased Real Property or the operation of the business thereon; (d) covenants, conditions, restrictions, easements, permits, rights of way, encroachments, minor defects and other similar matters of record affecting title to the Leased Real Property that do not or would not materially impair the occupancy or use of such Leased Real Property in the operation of the Diamond Business or Opal Business, as applicable; (e) Liens securing obligations under capital leases; (f) Securities Liens; (g) Liens securing payment, or any other obligations, of the applicable Person (including with respect to Indebtedness of such Person existing as of the date of this Agreement or entered into after the date of this Agreement in accordance with the terms of this Agreement), that shall be extinguished at or prior to the Closing; (h) any other Liens that are not, individually or in the aggregate, material to the applicable Person; and (i) those items set forth on

 

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Section 1.1(d) of the Diamond Disclosure Letter or Section 1.1(d) of the Opal Disclosure Letter and items that are not material to the Diamond Business, taken as a whole; or the Opal Business, taken as a whole, as applicable. With respect to any other Person, “Permitted Liens” means any Liens of the type described in clauses (e), (f) and (g) of the preceding sentence.

Person” means any natural person, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.

Personal Information” means any information that identifies or, alone or in combination with other information, would reasonably be capable of identifying an individual, and any other personal information that is subject to any Data Protection Law.

PIPE Financing” means purchases of Buyer Class A Shares for an aggregate amount up to the PIPE Investment Amount at a price per share of $10, consummated on or before the Closing Date, in accordance with Section 7.16.

PIPE Investment Amount” has the meaning set forth in Section 7.16(a).

Pre-Closing Period” has the meaning set forth in Section 9.1(a).

Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the portion of any Straddle Period through and including the Closing Date (determined on the basis of an interim closing of the books immediately prior to the Closing).

Proceeding” means any action (by any private right of action of any Person or by or before any Governmental Entity), suit, litigation, claim, charge, complaint, audit, investigation, inquiry, arbitration, mediation, administrative or other proceeding (including any administrative, criminal, arbitration, or mediation proceeding) by or before any Governmental Entity.

Process” or “Processing” means the creation, collection, use (including for the purposes of sending telephone calls, text messages and emails), storage, maintenance, processing, recording, distribution, transfer, transmission, receipt, import, export, protection (including safeguarding, security measures and notification in the event of a breach of security), access, disposal or disclosure or other activity regarding Personal Information (whether electronically or in any other form or medium).

Promote Distributions” means any direct or indirect distributions, payments, allocations or accruals in respect of any carried interest, incentive fees, promoted interest, performance fee or similar rights of participation or profit-sharing (net of any applicable expenses, deductions or withholdings borne pro rata by all recipients of such Promote Distributions, as determined by PubCo and its applicable subsidiaries) with respect to the earnings, increases in net asset value, profits or gains generated in respect of (i) any Opal Funds or Diamond Funds or their respective Subsidiaries or (ii) to the extent not constituting management, advisory, closing fees, investment banking fees, placement fees, commitment fees, breakup fees, litigation proceeds from transactions not consummated, monitoring fees, consulting fees, directors’ fees or similar fees to any of the foregoing or proceeds in respect of capital invested by and on behalf of Persons other than the Diamond Transferred Companies or the Opal Transferred Companies, any other existing and future advisory clients of the Diamond Transferred Companies or the Opal Transferred Companies, whether private credit strategies, technology strategy and business development companies and excluding, for these purposes, performance-based fees on business development companies (i.e., Part I/A)).

 

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Proxy Statement/Prospectus” has the meaning set forth in Section 10.12(c).

Registration Statement” means the Registration Statement on Form S-4 to be filed with the SEC, including any post-effective amendments and supplements thereto, and all exhibits to and all material incorporated by reference in, such Registration Statement, by the Buyer under the Securities Act with respect to the shares of the Buyer Capital Stock to be issued under this Agreement.

Regulatory Documents” means, with respect to a Person, all Filings (including the current Form ADV of the Diamond RIA Subsidiary, the Opal RIA Subsidiaries, as applicable, and the current Form BD(s) of the Opal Broker-Dealer Subsidiary), together with any amendments required to be made with respect thereto, filed, or required to be filed, by such Person with any applicable Governmental Entity pursuant to applicable Law, including the Securities Laws and the applicable rules and regulations of any Governmental Entity.

Related Person” means, with respect to any Person, (a) any Affiliate of such Person, (b) any Person that beneficially owns at least 10% of the outstanding Equity Securities of such Person, or (c) any parent, child, sibling or spouse who resides with, or is a dependent of, any Person described in clauses (a) and (b) above.

Required Vote” means the vote of the Buyer Stockholders as set forth in the Registration Statement to the extent required to approve the Buyer Stockholder Voting Matters, as determined in accordance with applicable Law and the Buyer Certificate of Incorporation.

Requisite Diamond Fund Approval” has the meaning set forth in Section 10.1(b).

Requisite Opal Fund Approval” has the meaning set forth in Section 10.2(a).

Requisite Opal SMA Approval” has the meaning set forth in Section 10.2(d).

Restricted Person” means any person or entity identified on the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List or the U.S. Department of State’s Debarred List or Nonproliferation Sanctions List.

Retained Diamond Liability” means the Liabilities set forth on Section 1.1(g) of the Diamond Disclosure Letter.

Retained Opal Business” means the FIC Assets and the business of ORCP AH LLC, a Delaware limited liability company, and its subsidiaries.

“Retained Opal Liability” means any and all Liabilities to the extent arising out of or relating to (i) the FIC Assets or (ii) ORCP AH LLC, a Delaware limited liability company or its subsidiaries..

 

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Sanctioned Country” means, at any time, a country or territory which is itself the subject or target of any country-wide or territory-wide Sanctions (at the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).

Sanctioned Person” means any Person that is the target of any Sanctions, including (a) any Person listed on any Sanctions-related list of designated or Restricted Persons maintained by a Governmental Entity of the United States (including the U.S. Department of Treasury’s Office of Foreign Assets Control and the U.S. Department of State), Canada, the United Kingdom, the United Nations Security Council, the European Union, any European Union Member State, or any other relevant jurisdiction; (b) organized, resident or located in a Sanctioned Country; or (c) in the aggregate, 50% or more owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a) or (b).

Sanctions” means all Laws and Orders relating to economic, financial, or trade sanctions administered or enforced by the United States (including by OFAC and the U.S. Department of State), Canada, the United Kingdom, the United Nations Security Council, the European Union, any European Union Member State, or any other relevant Governmental Entity.

SEC” means the United States Securities and Exchange Commission.

Section 6226 Election” has the meaning set forth in Section 12.8.

Securities Act” means the Securities Act of 1933.

Securities Exchange Act” means the Securities Exchange Act of 1934.

Securities Laws” means the Securities Act, the Securities Exchange Act, the Investment Company Act, the Investment Advisers Act, state “blue sky,” securities and investment advisory laws, all applicable foreign securities laws and, in each case, the rules of each applicable Self-Regulatory Organization relating to securities.

Securities Liens” means Liens arising out of, under or in connection with (a) applicable federal, state and local securities Laws and (b) restrictions on transfer, hypothecation or similar actions contained in any Governing Documents.

Self-Regulatory Organization” means a self-regulatory organization, including any “self-regulatory organization” as such term is defined in Section 3(a)(26) of the Securities Exchange Act, any “self-regulatory organization” as such term is defined in CFTC Rule 1.3, and any other U.S. or non-U.S. securities exchange, futures exchange, futures association, commodities exchange, clearinghouse or clearing organization.

Seller” or “Sellers” means the Diamond Sellers and the Opal Sellers.

Seller Earnout Securities” means, (a) with respect to each Opal Seller that has made a Valid Opal Group Partnership Election and each Diamond Seller, Seller Earnout Units and (b) with respect to each Opal Seller that has not made a Valid Opal Group Partnership Election, Seller Earnout Shares, as further detailed in Section 2.17. For the avoidance of doubt, a “Seller Earnout Security” shall refer to either (x) one Seller Earnout Share or (y) one Seller Earnout Unit.

 

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Seller Earnout Shares” means Buyer Series E-1 Shares and Buyer Series E-2 Shares, as applicable, issued as “Seller Earnout Shares” pursuant to Section 2.17.

Seller Earnout Units” means Blue Owl Carry Series E-1 Seller Earnout Units, Blue Owl Carry Series E-2 Seller Earnout Units, Blue Owl Holdings Series E-1 Seller Earnout Units and Blue Owl Holdings Series E-2 Seller Earnout Units, in each case issued in lieu of Buyer Class E Shares as provided therein and subject to the terms applicable to “Seller Earnout Units” pursuant to Section 2.17. For the avoidance of doubt, a “Seller Earnout Unit” shall collectively refer to either (x) one Blue Owl Holdings Series E-1 Seller Earnout Unit and one Blue Owl Carry Series E-1 Seller Earnout Unit (collectively, a “Series E-1 Seller Earnout Unit”) or (y) one Blue Owl Holdings Series E-2 Seller Earnout Unit and one Blue Owl Carry Series E-2 Seller Earnout Unit (collectively, a “Series E-2 Seller Earnout Unit”), each issued in lieu of Buyer Class E Shares as provided therein and subject to the terms applicable to “Seller Earnout Units” pursuant to Section 2.17.

Shared Diamond Reorganization Contract” has the meaning set forth in Section 10.25(a).

Sherman Act” means the Sherman Antitrust Act of 1890.

Signing Form 8-K” has the meaning set forth in Section 10.12(b).

Signing Press Release” has the meaning set forth in Section 10.12(b).

Skadden” has the meaning set forth in Section 15.15.

Software” means all computer software, applications, and programs (and all versions, releases, fixes, upgrades and updates thereto, as applicable), including software compilations, development tools, compilers, files, scripts, manuals, design notes, programmers’ notes, architecture, application programming interfaces, mobile applications, algorithms, data, databases, and compilations of data, comments, user interfaces, menus, buttons, icons, and other items and documentation related thereto or associated therewith as well as any foreign language versions, fixes, upgrades, updates, enhancements, new versions, previous versions, new releases and previous releases thereof, in each case, whether in source code, object code or human readable form.

Specified Equity” means any Equity Securities issued by (i) any Subsidiary of the Buyer, (ii) any PubCo Fund (as defined in the Investor Rights Agreement) or (iii) any Subsidiary of any Opal Carry Aggregator (or any successors thereto) or any Opal Performance Fee Aggregator (as defined in the Investor Rights Agreement) (or any successors thereto) to any Person (other than, directly or indirectly, to a Key Professional or his Affiliates or (solely in the case of the immediately following clauses (a) and (c)) any employee, manager or officer of the Buyer or any of its Subsidiaries or his or her Affiliates) (a) as a rebate or incentive to a third party investor that is not a Related Party (as defined in the Investor Rights Agreement) making a capital commitment in any fund, business development company or account sponsored or managed by the Buyer or any of its Subsidiaries, including a seed or foundation investor, (b) to new hires or reassigned employees who are primarily dedicated to a new business line not previously engaged in by PubCo or its Subsidiaries (and, with respect to any reassigned employees, for which a replacement hire is made for such Person’s former position within a reasonable period of time), or (c) to a third party that is not a Related Party in connection with a bona fide arm’s length joint venture or bona fide arm’s length arrangement with a third party service provider.

Sponsor” means Altimar Sponsor, LLC, a Delaware limited liability company.

Sponsor Related Party Transaction” has the meaning set forth in Section 7.19.

 

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Straddle Period” means any taxable period that begins on or before (but does not end on) the Closing Date.

Subscription Agreement” means a Contract executed by an Equity Financing Source on or before the date of this Agreement with respect to the PIPE Financing.

Subsidiaries” of any Person means any entity (a) of which 50% or more of the outstanding share capital, voting securities or other voting equity interests are owned, directly or indirectly, by such Person, (b) of which such Person is entitled to elect, directly or indirectly, at least 50% of the board of directors (or managers) or similar governing body of such entity or (c) if such entity is a limited partnership or limited liability company, of which such Person or one of its Subsidiaries is a general partner or managing member or has the power to direct the policies, management or affairs. Notwithstanding the foregoing, none of the Diamond Funds, the Opal Funds, any FIC Subsidiary, or the Excluded Diamond Assets, or any accounts, funds, vehicles or other client advised or sub-advised by the Nephrite Group or the Opal Family (as applicable) (or any portfolio company or other investment of any of the foregoing) shall be a Subsidiary of any member of the Nephrite Group or Opal Family, respectively, for purposes of this Agreement.

Tax” or “Taxes” means all United States federal, state and local, non-U.S., and other net or gross income, net or gross receipts, net or gross proceeds, payroll, employment, excise, severance, stamp, occupation, windfall or excess profits, profits, customs, capital stock, withholding, social security, unemployment, disability, real property, personal property (tangible and intangible), sales, use, commercial rent, transfer, value added, alternative or add-on minimum, capital gains, user, leasing, lease, natural resources, ad valorem, franchise, gaming license, capital, estimated, goods and services, fuel, interest equalization, registration, recording, premium, turnover, environmental or other taxes, charges, duties, fees, levies or other governmental charges of any kind whatsoever, including all interest, penalties, assessments and additions imposed with respect to the foregoing, imposed by (or otherwise payable to) any Governmental Entity, and, in each case, whether disputed or not, whether payable directly or by withholding and whether or not requiring the filing of a Tax Return.

Tax Accounting Firm” has the meaning set forth in Section 12.6.

Tax Basis Balance Sheet” has the meaning set forth in Section 12.6.

Tax Distributions” means customary distributions by any Diamond Transferred Company or Opal Transferred Company that are intended to enable the direct or indirect owners of any such entity to pay applicable Income Taxes with respect to income or gains allocated in respect of their ownership interests in such entity, including distributions intended to permit the payment of quarterly estimated Taxes and distributions in respect of the actual or reasonably estimated income or gains of each such entity that are attributable the Pre-Closing Tax Period.

Tax Positions” has the meaning set forth in Section 12.7.

Tax Proceeding” means any audit, examination, claim or similar Proceeding with respect to Taxes, Tax matters, or Tax Returns.

Tax Receivable Agreement” has the meaning set forth in the Recitals.

 

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Tax Returns” means all United States federal, state or local and all non-U.S. returns, declarations, reports, claims for refund, information returns, elections, disclosures, statements, or other documents (including any related or supporting schedules, attachments, statements or information, and including any amendments thereof) filed or required to be filed with a Taxing Authority in connection with, or relating to, Taxes.

Tax Sharing Agreement” means any agreement or arrangement (including any provision of a Contract) pursuant to which any Person is or may be obligated to indemnify any Person for, or otherwise pay, any Tax of or imposed on another Person, or indemnify, or pay over to, any other Person any amount determined by reference to actual or deemed Tax benefits, Tax assets, or Tax savings, excluding, for the avoidance of doubt, the Tax Receivable Agreement.

Taxing Authority” means any Governmental Entity having jurisdiction over the assessment, determination, collection, administration or imposition of any Tax.

Third-Party Claim” has the meaning set forth in Section 14.5(b).

Transaction Expenses” means all costs, fees and expenses incurred by the Parties or their Affiliates in connection with or as a result of the agreements and transactions contemplated by this Agreement and the consummation (or the preparation for the consummation) of the transactions contemplated by this Agreement, including (i) all brokers’ or finders’ fees, (ii) deferred financing fees, (iii) fees and expenses of legal counsel, advisors, investment bankers, accountants, auditors, experts and other representatives and consultants, and (iv) all obligations of the Diamond Transferred Companies, the Opal Transferred Companies or the Buyer that arise, or are triggered or become due or payable, as a direct or indirect result of the consummation (whether alone or in combination with any other event or circumstance) of the transactions contemplated by this Agreement, in the case of this clause (iv) to the extent payable to any person other than the Parties or any employees of or consultants to the Diamond Business or the Opal Business. For the avoidance of doubt, Opal Special Liabilities are not Transaction Expenses.

Transaction Expenses Overage” means the amount, if any, by which (a) the amount of incurred but unpaid or unreimbursed Transaction Expenses as of the Closing exceeds (b) $150,000,000.

Transfer Regulations” means any applicable Law which provides for the automatic transfer of employment in the event of a transfer of a business or services. For the avoidance of doubt, the Transfer Regulations include the Transfer of Undertakings Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (and its amendments) (collectively referred to as the “Transfer of Undertakings Directive”) and the laws of any European Union Member State and the United Kingdom implementing such Transfer of Undertakings Directive, such as the United Kingdom’s Transfer of Undertakings (Protection of Employment) Regulations 2006.

Transfer Taxes” means all transfer, documentary, sales, use, stamp, registration, notarial fees and other similar Taxes and fees incurred in connection with the transactions contemplated by this Agreement.

 

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Transferred Companies” means the Diamond Transferred Companies and the Opal Transferred Companies.

“Transferred Companies Indemnified Persons” has the meaning set forth in Section 10.14(a).

Transferred Employees” has the meaning given to such term in Section 10.15(d).

Treasury Regulations” means the United States Treasury Regulations promulgated under the Code, as such regulations may be amended from time to time.

Trust Account” means the account established by the Buyer holding the Trust Amount for the benefit of its public shareholders.

Trust Agreement” means the Investment Management Trust Agreement, dated as of October 22, 2020, by and between the Buyer and the Trustee.

Trust Amount” has the meaning set forth in Section 7.4.

Trust Distributions” has the meaning set forth in Section 15.10.

Trustee” means Continental Stock Transfer & Trust Company.

Unaudited Diamond Financial Statements” has the meaning set forth in Section 3.4(a)(ii).

Unaudited Opal Financial Statements” has the meaning set forth in Section 5.4(a)(ii).

Valid Opal Group Blocker Election” means a written Opal Group Holder Election Form executed and delivered by a holder of Opal Group Class A Units and Opal Carry Units that is an Opal Group Blocker electing, effective immediately prior to consummation of the Opal Group Merger, to consummate an Opal Group Blocker Merger and, as consideration therefor, have an authorized representative (on behalf of the equityholders of such Opal Group Blocker) receive the portion of the Opal Cash Consideration and the number of the Buyer Class A Shares and the Buyer Class E Shares which such Opal Group Blocker would otherwise receive in respect of each Opal Group Class A Unit and Opal Carry Unit owned by such Opal Group Blocker in accordance with Section 2.3(b) and satisfying all requirements in the Opal Group Holder Election Form with respect to the making of such election, including execution and delivery effective as of the Closing of counterparts to each of the Investor Rights Agreement, the Tax Receivables Agreement, and the Opal Group Blocker Merger Agreement, providing for the consent of (and waiver of appraisal or similar rights) shareholders of the Opal Group Blocker (in each case if required), consenting to the transactions contemplated by this Agreement (including for all purposes of the Existing Opal Group LLC Agreement and the Existing Opal Carry LP Agreement), and acknowledging and agreeing to the payment of the Opal Group Earnout Capital Contributions in accordance with the terms of this Agreement or otherwise in form and substance reasonably satisfactory to Opal Partners.

 

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Valid Opal Group Partnership Election” means a written Opal Group Holder Election Form executed and delivered by a holder of Opal Group Class A Units, Opal Group Sponsor B Units or Opal Carry Units electing to receive as part of the Opal Group Merger a portion of the Opal Cash Consideration and Opal Common Unit Consideration in respect of each Opal Group Class A Unit or Opal Group Sponsor B Unit and, in each case, Opal Carry Unit in accordance with Section 2.3(b) and satisfying all requirements in the Opal Group Holder Election Form with respect to the making of such election, including execution and delivery effective as of the Closing of a counterpart to each of the Investor Rights Agreement, the Exchange Agreement, the Tax Receivables Agreement, the A&R Blue Owl Holdings LP Agreement, and the A&R Blue Owl Carry LP Agreement, consenting to the transactions contemplated by this Agreement (including for all purposes of the Existing Opal Group LLC Agreement and the Existing Opal Carry LP Agreement), acknowledging and agreeing to the payment of the Opal Group Earnout Capital Contributions in accordance with the terms of this Agreement and designating a Person to serve as such Opal Group Blocker’s “Opal Group Blocker Representative” for purposes of this Agreement, or otherwise in form and substance reasonably satisfactory to Opal Partners.

Volume Weighted Average Share Price” means the volume-weighted average share price of the Buyer Class A Shares as displayed on the Buyer’s page on Bloomberg (or any successor service) in respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such trading day.

WARN Act” means the U.S. Worker Adjustment and Retraining Notification Act of 1988 and any similar applicable Law, collectively.

Article II

PURCHASE AND SALE TRANSACTIONS

Section 2.1 Diamond and Opal Reorganizations. Subject to the terms and conditions set forth in this Agreement:

(a) Diamond Reorganization. Subject to Section 2.15, in connection with the Closing, Nephrite shall take, or cause to be taken, the actions set forth on Section 2.1 of the Diamond Disclosure Letter (the “Diamond Reorganization”), including by executing and delivering any documents, certificates, instruments and other papers that are reasonably necessary for the consummation of the transactions contemplated by the Diamond Reorganization (it being agreed that pursuant to the Diamond Reorganization, all Diamond Assets shall be transferred to (or continue to be held by), and all Diamond Liabilities shall be assumed by (or otherwise continue to be the obligations of), the Diamond Transferred Companies or Owl Rock Capital Advisors LLC), in all cases, on the terms and subject to the conditions of this Agreement. Subject to Section 10.1, the Diamond Reorganization (taken together with the transactions contemplated by Section 2.4), will include the contribution, assignment or other transfer of direct or indirect ownership of 100% of the non-economic general partner interests in the Diamond Funds or 100% of the interests in the non-economic general partners of the Diamond Funds, such that, following the Diamond Reorganization, Buyer shall control the Diamond Funds.

 

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(b) Opal Reorganization. Subject to the terms and conditions of this Agreement, Opal Group, Opal Feeder, Opal Partners and the other Persons specified below shall take, or cause to be taken, the following actions (the “Opal Reorganization”) (including by executing and delivering any documents, certificates, instruments and other papers) that are reasonably necessary for the consummation of the transactions contemplated by the Opal Reorganization (it being agreed that pursuant to the Opal Reorganization, all Opal Assets shall be transferred to (or continue to be held by), and all Opal Liabilities shall be assumed by (or otherwise continue to be the obligations of), the Opal Transferred Companies), in all cases, on the terms and subject to the conditions of this Agreement:

(i) At any time after the date of this Agreement and at least 20 Business Days prior to Closing, Opal Group shall, in accordance with Section 3.3(c) of the Existing Opal Group LLC Agreement, deliver an Opal Group Earnout Notice to each Opal Group Class A Member providing that, subject to consummation of the Closing, each Opal Group Class A Member will be obligated to pay to Opal Group the aggregate Opal Group Earnout Capital Contributions committed to be contributed by each such Opal Group Class A Member. Opal Group shall also deliver to each Opal Group Class A Member an Opal Group Holder Election Form, together with an information statement, informing it that it may, prior to the Opal Group Holder Election Deadline, elect to make a Valid Opal Group Blocker Election or Valid Opal Group Partnership Election. In connection with the Opal Group Earnout Notice and prior to the Closing, Opal Group shall issue to Opal Partners 1,500,000 FIC Units in accordance with the Existing Opal Group LLC Agreement.

(ii) At any time prior to (but effective as of immediately prior to) the Closing, Opal Group and Opal Carry shall consummate the Opal Carry Reorganization.

(iii) Prior to the Closing, Opal Carry shall take actions consistent with the Existing Opal Carry LPA such that each economic interest of each partner of Opal Carry is represented by “units” (the “Opal Carry Units”) in the same aggregate proportion as the interests of Opal Carry are held immediately prior to such action.

(iv) Subject to Section 10.11(e), at or prior to (but effective as of immediately prior to) the Closing, Opal Partners shall, for no additional consideration, cause all of the issued and outstanding Equity Securities of Opal Broker-Dealer Subsidiary to be contributed to Opal Group.

(v) At any time prior to the Closing, Opal Partners may, in its capacity as managing member of Opal Feeder, cause Opal Feeder FIC to use Opal Feeder FIC Assets to purchase all or a portion of the Opal Group FIC Assets from Opal Group FIC Holdings for an amount in cash determined by Opal Partners.

(c) Notwithstanding the foregoing, each of Nephrite, on the one hand, and Opal Group, Opal Feeder and Opal Partners, on the other hand, may make, or cause to be made, modifications to the contemplated actions under the Diamond Reorganization or the Opal Reorganization, as applicable, with the prior written consent of the other (not to be unreasonably withheld, conditioned or delayed), respectively, in each case so long as such modifications, individually or in the aggregate, would not reasonably be expected to impede, impair or delay in any material respect the consummation of the transactions contemplated by this Agreement.

 

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(d) For the avoidance of doubt, the obligations of Nephrite Group in respect of the transfer of the Diamond Assets (whether as part of the Diamond Reorganization or otherwise) and the Opal Family in respect of the transfer of the Opal Assets (whether as part of the Opal Reorganization or otherwise) shall be limited by and subject to the specific terms and conditions of this Agreement (including Sections 10.1, 10.2 and 10.4) and, for the avoidance of doubt, (i) except where the receipt of any third party consent is an express condition to Closing under Section 2.9, the transfer of any Diamond Asset or Opal Asset that is subject to the consent or approval of a third party shall not constitute a condition to Closing and (ii) without limiting Section 10.25 but subject to (and without limiting) Section 10.23, no member of the Nephrite Group or Opal Family shall be obligated to transfer any Diamond Asset or Opal Asset in the absence of any required consent.

Section 2.2 Buyer Domestication. Subject to receipt of the Required Vote, immediately prior to the Closing, Buyer shall cause the Domestication to become effective, including by (a) filing with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication, in form and substance reasonably acceptable to Buyer, Nephrite and Opal Group, together with the Buyer Certificate of Incorporation, in each case, in accordance with the provisions thereof and the DGCL, (b) completing and making and procuring all those filings required to be made with the Registrar of Companies of the Cayman Islands under Cayman Law in connection with the Domestication, and (c) obtaining a certificate of de-registration from the Registrar of Companies of the Cayman Islands. Immediately prior to the Closing, Buyer shall cause the Buyer Bylaws to be adopted until thereafter amended in accordance with the provisions thereof, the Buyer Certificate of Incorporation and the DGCL. In accordance with the Applicable Organization Law, the Domestication shall provide that at the effective time of the Domestication, by virtue of the Domestication, and without any action on the part of any Buyer Stockholder, (i) each Class A ordinary share of Buyer outstanding at the effective time of the Domestication shall as a result of the Domestication be one share of Buyer Class A Common Stock, (ii) each Class B ordinary share of Buyer outstanding at the effective time of the Domestication shall as a result of the Domestication be one share of Buyer Class F Common Stock and (iii) each warrant to purchase Class A ordinary shares of Buyer outstanding immediately at the effective time of the Domestication shall from and following the effective time of the Domestication continue to have, and be subject to, the same terms and conditions as were applicable to such warrant immediately prior to the effective time of the Domestication; provided that following the effective time of the Domestication such warrant shall be exercisable for a number shares of Buyer Class A Common Stock equal to the number of Class A ordinary shares for which it would have been exercisable immediately prior to the effective time of the Domestication, subject to any further adjustment required by the terms of the warrant which may result from events occurring subsequent to the effective time of the Domestication. For the avoidance of doubt, the Parties acknowledge that (A) pursuant to Section 4.3(h) of the Buyer Certificate of Incorporation, shares of Buyer Class F Common Stock automatically convert into shares of Buyer Class A Common Stock upon the closing of a Business Combination, (B) the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements will constitute a Business Combination within the meaning of the Buyer Certificate of Incorporation, and (C) the number of shares of Buyer Class A Common Stock issued upon conversion of shares of Buyer Class F Common Stock outstanding at the time of the Closing shall be subject to the limitation and agreement set forth in the Forfeiture and Support Agreement.

 

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Section 2.3 Contribution of Opal Business. Subject to the satisfaction or waiver of the conditions to the Closing set forth in Section 2.9, Section 2.10, Section 2.11 and Section 2.12 (other than those that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions), at the Closing, but prior to the transactions contemplated by Section 2.4, the following steps shall occur in the following sequence, in each case contingent upon the other steps occurring:

(a) Blue Owl Holdings and Opal Group shall cause to be executed and filed with the Secretary of State for the State of Delaware a certificate of merger, to be effective as of the time of filing (the “Opal Group Merger Effective Time”), to cause Merger Sub 1 to merge with and into Opal Group (the “Opal Group Merger”), with the effects as of the Opal Group Merger Effective Time that:

(i) the separate existence of Merger Sub 1 shall cease and the Opal Group Merger shall have the effects set forth in Section 18-209 of the Delaware Limited Liability Company Act;

(ii) the limited liability company agreement in substantially the form attached to this Agreement as Exhibit L, shall be adopted as the limited liability company agreement of the surviving company (the “Opal Group Surviving LLC Agreement”);

(iii) each officer or manager of Opal Group as of immediately prior to the Opal Group Merger Effective Time shall be an officer or manager, as applicable, of the surviving company;

(iv) each Opal Group FIC Unit (including each Opal Group FIC Unit issued in accordance with Section 2.1(b) but excluding any Opal Group FIC Unit owned by Blue Owl GP as a result of the Opal Group Blocker Mergers in accordance with Section 2.3(c)(i)) shall convert into the right to receive from Blue Owl GP (which amount shall be contributed by the Buyer to Blue Owl GP immediately prior to the effectiveness of the Opal Group Merger (x) an amount in cash determined by dividing (i) an amount equal to the Opal Group FIC Holdings Amount by (ii) the total number of Opal Group FIC Units issued and outstanding immediately prior to the Opal Group Merger and (y) the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement and, as of the Opal Group Merger Effective Time, all Opal Group FIC Units (including any Opal Group FIC Units owned by Blue Owl GP as a result of the Opal Group Blocker Mergers in accordance with Section 2.3(c)(i)) shall be cancelled; provided, that for avoidance of doubt, the Opal Group FIC Assets shall remain the property of Opal Group;

(v) each Opal Group Class A Unit (other than any Opal Group Class A Unit that is an Electing Opal Unit) shall convert into the right to receive from Blue Owl GP (which consideration shall be contributed by the Buyer to Blue Owl GP immediately prior to the effectiveness of the Opal Group Merger, as applicable), (w) an amount of cash equal to the Per Opal Group Unit Cash Consideration, (x) a number of the Buyer Class A Shares determined by dividing the Per Opal Group Class A Unit Equity Consideration by the Per Share Price, (y) a number of the Buyer Class E Shares equal to the Per Opal Group Class A Unit Additional Consideration divided by the Per Share Price, and (z) the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement;

 

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(vi) each Opal Group Sponsor B Unit (other than any Opal Group Sponsor B Unit that is an Electing Opal Unit) shall convert into the right to receive from Blue Owl GP (which consideration shall be contributed by the Buyer to Blue Owl GP immediately prior to the effectiveness of the Opal Group Merger, as applicable) (x) a number of the Buyer Class B Shares determined by dividing the Per Opal Group Sponsor B Unit Equity Consideration by the Per Share Price, (y) a number of the Buyer Class E Shares equal to the Per Opal Group Sponsor B Unit Additional Consideration divided by the Per Share Price, and (z) the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement;

(vii) each Electing Opal Unit shall convert into the right to receive the consideration specified for such Electing Opal Unit in Section 2.3(c); and

(viii) the managing member interest of Blue Owl Holdings in Merger Sub 1 shall be the sole Equity Securities in the surviving company.

(b) Blue Owl Carry and Opal Carry shall cause to be executed and filed with the Secretary of State for the State of Delaware a certificate of merger, to be effective as of the time of filing (the “Opal Carry Merger Effective Time”), to cause Merger Sub 2 to merge with and into Opal Carry (the “Opal Carry Merger”), with the effects as of the Opal Carry Merger Effective Time that:

(i) the separate existence of Merger Sub 2 shall cease and the Opal Carry Merger has the effects set forth in Section 17-211 of the Delaware Limited Partnership Act;

(ii) the limited partnership agreement in substantially the form attached to this Agreement as Exhibit M, shall be adopted as the limited partnership agreement of the surviving entity (the “Opal Carry Surviving LP Agreement”);

(iii) each officer or manager of Opal Carry as of immediately prior to the effective time of the Opal Carry Merger shall be an officer or manager, as applicable, of the surviving company;

(iv) each Opal Carry Unit (other than any Opal Carry Unit that is an Electing Opal Carry Unit) shall convert into the right to receive from Blue Owl GP (which consideration shall be contributed by the Buyer to Blue Owl GP immediately prior to the effectiveness of the Opal Carry Merger, as applicable) (x) a number of the Buyer Class A Shares determined by dividing the Per Opal Carry Unit Equity Consideration by the Per Share Price and (y) the right to receive certain payments to be made by the Buyer under the Tax Receivable Agreement; and

(v) the general partner interest of Blue Owl GP and limited partner interest of Blue Owl Carry in Merger Sub 2 shall be the sole Equity Securities in the surviving company.

(c) Notwithstanding Section 2.3(a) and Section 2.3(b), to the extent that a Valid Opal Group Blocker Election or Valid Opal Group Partnership Election is made, then:

 

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(i) with respect to the Electing Opal Units held by Opal Group Blockers that are subject to a Valid Opal Group Blocker Election:

(1) as of immediately prior to the Opal Group Merger Effective Time and Opal Carry Merger Effective Time, a Subsidiary of the Blue Owl GP shall merge with and into such Opal Group Blocker in an Opal Group Blocker Merger and, to the extent that such Opal Group Blocker Merger has been effective, the holders of Equity Securities of such Opal Group Blocker shall be entitled to receive from Blue Owl GP in such Opal Group Blocker Merger (subject to the Opal Group Holder Election Form delivered in connection with the Valid Opal Group Blocker Election and Section 2.1(b)) (x) the aggregate portion of the Opal Cash Consideration, the aggregate number of the Buyer Class A Shares and the aggregate number of the Buyer Class E Shares that the Opal Group Blocker would have received in respect of its Opal Group Class A Units and Opal Carry Units in accordance with Section 2.3(a) and Section 2.3(b) in the absence of such Valid Opal Group Blocker Election and (y) the right to receive certain payments to be made by the Buyer under the Tax Receivable Agreement; provided that to the extent agreed by Opal Group and provided in the Opal Group Blocker Merger Agreement, to the extent Opal Group Blocker also owns Opal Group FIC Units, the holders of such Opal Group Blocker shall also be entitled to receive from Blue Owl GP the aggregate consideration payable in respect of such Opal Group FIC Units owned by such Opal Group Blocker in accordance with Section 2.3(a)(iv); and

(2) as of the Opal Group Merger Effective Time and Opal Carry Merger Effective Time, the Opal Group FIC Units, Opal Group Class A Units, and Opal Carry Units owned by Blue Owl GP either directly or indirectly (through any Opal Group Blockers that are acquired by Blue Owl GP as a result of any Opal Group Blocker Mergers) shall convert into an aggregate number of Blue Owl GP Units and an aggregate number Blue Owl Carry GP Units determined equal to the sum of (1) the quotient determined by dividing (A) the aggregate portion of the Opal Cash Consideration paid as a result of all Opal Group Blocker Mergers by (B) the Per Share Price plus (2) the aggregate number of Buyer Class A Shares issued as a result of all Opal Group Blocker Mergers.

(ii) with respect to the Electing Opal Units of holders of Opal Group Class A Units that are subject to a Valid Opal Group Partnership Election, as a result of the Opal Group Merger and Opal Carry Merger, each holder thereof shall be entitled to receive (subject to the Opal Group Holder Election Form delivered in connection with the Valid Opal Group Partnership Election and Section 2.1(b)) (x) in respect of each Opal Group Class A Unit held by such holder an amount of cash from Blue Owl GP (which amount shall be contributed by the Buyer to Blue Owl GP immediately prior to the effectiveness of the Merger) equal to the Per Opal Group Unit Cash Consideration and the right to receive certain payments to be made by the Blue Owl GP under the Tax Receivable Agreement and (y) from Blue Owl Holdings and Blue Owl Carry, as applicable, in respect of each Opal Group Class A Unit or Opal Carry Unit held by such holder, the Opal Common Unit Consideration (which shall include Seller Earnout Units) in respect of such Opal Group Class A Unit or Opal Carry Unit, as applicable; and

 

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(iii) with respect to the Electing Opal Units of the holders of Opal Group Sponsor B Units that are subject to a Valid Opal Group Partnership Election, as a result of the Opal Group Merger, each holder thereof shall receive from Buyer, Blue Owl Holdings and Blue Owl Carry, as applicable, in respect of each Opal Group Sponsor B Unit and Opal Carry Unit held by such holder the Opal Common Unit Consideration (which shall include Seller Earnout Units) in respect of such Opal Group Sponsor B Unit or Opal Carry Unit, as applicable. By its execution and delivery of this Agreement, Opal Feeder agrees that it shall timely make a Valid Opal Group Partnership Election in respect of its Opal Group Sponsor B Units and Opal Carry Units and shall not take (or, as applicable, refrain from taking) actions that would cause such Opal Group Sponsor B Units and Opal Carry Units to cease to be Electing Opal Units as of the Closing.

(d) Notwithstanding the foregoing provisions of this Section 2.3, unless the Opal Group Earnout Capital Contributions are contributed prior to Closing in accordance with the Opal Group Earnout Notice, any portion of the Opal Cash Consideration to which a holder of Opal Group Class A Units is entitled in respect thereof shall be reduced by an aggregate amount equal to the Opal Group Earnout Capital Contributions that otherwise would have been required to be paid directly by such holder (the “Opal Group Class A Offset Amount”). For purposes of applying Sections 3.3, 3.4 and 5.1 of the Existing Opal Group LLC Agreement (but not for Tax purposes), any Opal Group Class A Offset Amount that reduces the Opal Cash Consideration shall be treated for purposes of such Sections of the Existing Opal Group LLC Agreement in the same manner as a distribution by Opal Group. For the avoidance of doubt, from and after the Closing, any amount of cash held by Opal Group FIC Holdings shall no longer be a FIC Asset hereunder and shall be distributable by Opal Group FIC Holdings to Opal Group (as a wholly owned Subsidiary of Blue Owl Holdings) to be used by Opal Group or Blue Owl Holdings, as applicable, from and after the Closing as it determines, including to pay Transaction Expenses.

(e) Notwithstanding Section 2.1 and the foregoing provisions of this Section 2.3, as Opal Group shall include with the Opal Group Holder Election Form to each Opal Seller a letter of transmittal in customary form and providing for execution and delivery by such Opal Seller of such letter of transmittal (together with an IRS Form W-9 or other similar tax documentation required for such Opal Seller) a condition precedent to such Opal Seller (but solely with respect to such Opal Seller, and not any other Opal Seller) receiving its payments under this Agreement at the Closing. To the extent that any Opal Seller has not returned such letter of transmittal and any necessary tax form on or prior to the Closing Date , the Buyer and Blue Owl GP may retain such payment until such letter of transmittal and tax form are returned, at which point such Opal Seller shall be paid by the Buyer and Blue Owl GP the consideration to which such Opal Seller is entitled as determined in accordance with this Agreement without interest.

Section 2.4 Contribution of Diamond Business. Subject to the satisfaction or waiver of the conditions to the Closing set forth in Section 2.9, Section 2.10, Section 2.11 and Section 2.12 (other than those that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions), at the Closing and immediately following the consummation of the transactions contemplated by Section 2.3:

(a) Nephrite shall, and shall cause the Diamond Sellers to, contribute, assign, transfer and convey to Blue Owl Holdings, and Buyer shall cause Blue Owl Holdings to accept, the Equity Securities in Diamond Capital Holdings held by such Diamond Seller immediately following the consummation of the Diamond Reorganization, which, in the aggregate, shall constitute all of the Equity Securities of Diamond Capital Holdings.

 

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(b) Each of Nephrite and Buyer shall cause the transactions contemplated by Section 2.4(b) of the Diamond Disclosure Letter to be consummated.

(c) Each of Nephrite and Buyer shall cause the transactions contemplated by Section 2.4(c) of the Diamond Disclosure Letter to be consummated.

(d) Nephrite shall, and shall cause the Diamond Sellers set forth on Section 2.4(d) of the Diamond Disclosure Letter to, contribute, assign, transfer and convey to Blue Owl Carry, and Buyer shall cause Blue Owl Carry or its applicable Subsidiary to accept, the rights of Diamond Sellers to Promote Distributions generated by Future Diamond Funds; provided that Promote Distributions comprised of incentive fees or other amounts not constituting “carried interest”, along with, subject to Section 10.29, Promote Distributions in respect of Diamond Financing Fund, shall instead be included in the rights or assets transferred to Blue Owl Holdings or a Subsidiary thereof in accordance with Section 2.4(b).

Section 2.5 Closing Statements.

(a) Available Closing Date Cash. At least two Business Days prior to the Closing, the Buyer shall prepare and deliver to the other Parties a certificate, duly executed by an executive officer of the Buyer, setting forth in reasonable detail the Buyer’s good faith calculation (and attaching reasonable supporting details to enable a review of such statement by the other Parties) of Available Closing Date Cash.

(b) Opal Group Capitalization. At least two Business Days prior to the Closing, Opal Group shall prepare and deliver to Nephrite and the Buyer a certificate, duly executed by an executive officer of Opal Group (the “Opal Consideration Statement”), setting forth (i) the identity of each Opal Group Blocker that has made a Valid Opal Group Blocker Election (the “Electing Opal Group Blocker”), together for each such Electing Opal Group Blocker with (A) the number of Opal Group Class A Units, Opal Group Sponsor B Units, Opal Group FIC Units, Opal Carry Units and held by such Electing Opal Group Blocker, (B) the identity of such Electing Opal Group Blocker’s Opal Blocker Seller Representative and (C) the accounts designated by such Opal Blocker Seller Representative for payment to the holders of Equity Securities in such Electing Opal Group Blocker, (ii) the identity of each Opal Seller that has delivered a Valid Opal Group Partnership Election (the “Electing Opal Group Continuing Sellers” and, together with the Electing Opal Group Blocker, the “Electing Opal Sellers”) and the number of Opal Group Class A Units or Opal Group Sponsor B Units, the number of Opal Group FIC Units and the number of Opal Carry Units held by such Electing Opal Group Continuing Seller, and (iii) the identity of each Opal Seller that is not an Electing Opal Seller (the “Non-Electing Opal Sellers”) and the number of Opal Group Class A Units or Opal Group Sponsor B Units, the number of Opal Group FIC Units and the number of Opal Carry Units held by each such Non-Electing Opal Seller. The Parties acknowledge and agree that the Buyer, Nephrite and their respective Affiliates shall have no liability whatsoever with respect to the information or calculations set forth in (or any inaccuracies in) the Opal Consideration Statement.

(c) Opal Closing Adjustment Amount. At least two Business Days prior to the Closing, Opal Feeder shall prepare and deliver to Nephrite and Buyer a certificate (the “Opal Closing Estimate Statement”), duly executed by an executive officer of Opal Group, setting forth

 

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in reasonable detail Opal Feeder’s good faith estimates (and attaching reasonable supporting details to enable a review of such statement by the other Parties) of the Opal Estimated Closing Net Working Capital, the Opal Estimated Indebtedness Amount and the resulting calculation of the Opal Closing Adjustment Amount. Absent fraud or manifest error, the Opal Closing Adjustment Amount as set forth in the Opal Closing Estimate Statement shall be used to calculate the issuances and payments to the Opal Sellers at Closing, subject to the Opal Sellers’ indemnification obligations under Section 14.4(b) with respect to any Opal Final Deficit.

(d) Diamond Closing Adjustment Amount. At least two Business Days prior to the Closing, Nephrite shall prepare and deliver to Opal Feeder and Buyer a certificate (the “Diamond Closing Estimate Statement”), duly executed by an executive officer of Nephrite, setting forth in reasonable detail Nephrite’s good faith estimates (and attaching reasonable supporting details to enable a review of such statement by the other Parties) of the Diamond Estimated Closing Net Working Capital, the Diamond Estimated Indebtedness Amount and the resulting calculation of the Diamond Closing Adjustment Amount. Absent fraud or manifest error, the Diamond Closing Adjustment Amount as set forth in the Diamond Closing Estimate Statement shall be used to calculate the issuances and payments to the Diamond Sellers at Closing, subject to the Diamond Sellers’ indemnification obligations under Section 14.3 with respect to any Diamond Final Deficit.

(e) Third Party Invoices. At least two Business Days prior to the Closing Date, each of Opal Group, Nephrite and the Buyer shall deliver to the other copies of all invoices for their respective Transaction Expenses (whether payable on, prior to, or after the Closing, including any invoices with respect to Transaction Expenses previously paid by such Parties or their respective Affiliates), in each case together with any IRS Form W-9 or other Tax forms reasonably requested by the Buyer in connection with the payment of such Transaction Expenses.

Section 2.6 Closing Issuances. Subject to the satisfaction or waiver of the conditions to the Closing set forth in Section 2.9, Section 2.10, Section 2.11 and Section 2.12 (other than those that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions):

(a) Diamond Sellers. In each case subject to Section 2.6(d):

(i) in consideration for the contribution contemplated by Section 2.4(a), (A) Blue Owl Holdings shall (x) issue to each Diamond Seller a number of Blue Owl Holdings Common Units (excluding Seller Earnout Units) determined by multiplying (I) the applicable Diamond Seller Equity Allocation Percentage by (II) the quotient determined by dividing the Diamond Total Pre-Earnout Consideration minus the absolute value of the Diamond Closing Deficit (if any), by the Per Share Price (the “Nephrite Issued Blue Owl Holdings Units”) (and in addition shall issue to each Diamond Seller a number of Seller Earnout Units equal to the Diamond Seller Equity Allocation Percentage for such Diamond Seller, multiplied by the Diamond Earnout Consideration, divided by the Per Share Price, with such Seller Earnout Units divided equally between Blue Owl Holdings Series E-1 Seller Earnout Units and Blue Owl Holdings Series E-2 Seller Earnout Units) and (y) make appropriate book entries evidencing the issuance to such Person of such Blue Owl Holdings Common Units, and (B) the Buyer shall (x) issue to each Diamond Seller a number of

 

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Buyer Class C Shares and Buyer Class D Shares equal in the aggregate to the number of Blue Owl Holdings Common Units (excluding Seller Earnout Units) issued in clause (A)(x) above (net of the number of Blue Owl Holdings Common Units transferred pursuant to Section 2.6(a)(iii)) to such Diamond Seller (it being agreed that Diamond SLP shall receive Buyer Class D Shares and the other Diamond Sellers shall receive Buyer Class C Shares on account of the Blue Owl Holdings Common Units issued to it clause (A)(x) above), and (y) make appropriate book entries evidencing the issuance to such Persons of such Buyer Class C Shares and Buyer Class D Shares.

(ii) in consideration for the contribution contemplated by Section 2.4(d), Blue Owl Carry shall (x) issue to each Diamond Seller a number of Blue Owl Carry Common Units (excluding Seller Earnout Units) equal in the aggregate to the number of Blue Owl Holdings Common Units issued in Section 2.6(a)(i) (the “Nephrite Issued Blue Owl Carry Units”) (and in addition shall issue Blue Owl Carry Series E-1 Seller Earnout Units and Blue Owl Carry Series E-2 Seller Earnout Units to each Diamond Seller equal to the number of Seller Earnout Units of each series issued by Blue Owl Holdings in Section 2.6(a)(i)) and (y) make appropriate book entries evidencing the issuance to each such Person of such Blue Owl Carry Common Units.

(iii) Immediately following the consummation of the transactions contemplated by Section 2.6(a)(i) and Section 2.6(a)(ii), Blue Owl GP shall pay each Diamond Seller (x) cash in an amount equal to the Diamond Cash Consideration, multiplied by the Blue Owl Holdings Percentage, multiplied by the Diamond Seller Cash Allocation Percentage for such Diamond Seller, in exchange for a number of Blue Owl Holdings Common Units (excluding Seller Earnout Units) determined by multiplying (A) the applicable Diamond Seller Cash Allocation Percentage by (B) the quotient determined by dividing the Diamond Cash Consideration by the Per Share Price, and (y) cash in an amount equal to the Diamond Cash Consideration, multiplied by the Blue Owl Carry Percentage, multiplied by the Diamond Seller Cash Allocation Percentage for such Diamond Seller, in exchange for a number of Blue Owl Carry Common Units (excluding Seller Earnout Units) equal to the number of Blue Owl Holdings Common Units exchanged in clause (x) above. In addition, as additional consideration for the units transferred to Blue Owl GP as described in the preceding sentence, the applicable Diamond Seller(s) shall receive the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement.

(b) Opal Sellers. In each case subject to Section 2.6(d):

(i) In respect of each Electing Opal Group Blocker’s Electing Opal Units, the Buyer shall (1) issue to the Persons designated by the applicable Opal Blocker Seller Representative in the proportions designated by the applicable Opal Blocker Seller Representative (x) the aggregate number of Buyer Class A Shares to which such Electing Opal Group Blocker would otherwise be entitled in the absence of the applicable Valid Opal Group Blocker Election, as determined under Section 2.3, and (y) the number of Seller Earnout Shares to which each holder of Equity Securities of such Electing Opal Group Blocker is entitled as determined under Section 2.3, in each case based on the Opal Consideration Statement, and (2) make appropriate book entries evidencing the issuance to such Persons of such Buyer Class A Shares and Seller Earnout Shares.

 

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(ii) In respect of each Electing Opal Seller’s Opal Group Class A Units or Opal Group Sponsor B Units and, in either case, Opal Carry Units, (1) each of Blue Owl Holdings and Blue Owl Carry shall (x) issue to such Electing Opal Seller the number of Blue Owl Holdings Common Units and Blue Owl Carry Common Units, as applicable, to which such Electing Opal Seller is entitled under Section 2.3 based on the Opal Consideration Statement (which Blue Owl Holdings Common Units and Blue Owl Carry Common Units shall include Seller Earnout Units) and (y) make appropriate book entries evidencing the issuance to such Electing Opal Seller of such Blue Owl Holdings Common Units and Blue Owl Carry Common Units, as applicable, and (2) the Buyer shall (x) issue to such Electing Opal Seller its Applicable Vote Only Shares and (y) make appropriate book entries evidencing the issuance to such Persons of such Applicable Vote Only Shares.

(iii) In respect of each Non-Electing Opal Seller’s Opal Group Class A Units or Opal Group Sponsor B Units and, in either case, Opal Carry Units, the Buyer shall (1) issue to such Non-Electing Opal Seller (x) the number of Buyer Class A Shares to which such Opal Seller is entitled under Section 2.3 and (y) the number of Seller Earnout Shares to which such Non-Electing Opal Seller is entitled under Section 2.3, in each case based on the Opal Consideration Statement, and (2) make appropriate book entries evidencing the issuance to such Non-Electing Opal Seller of such Buyer Class A Shares and Seller Earnout Shares.

(c) GP. Each of Blue Owl Holdings and Blue Owl Carry shall issue, and the Buyer and Blue Owl GP shall cause to be issued, such number of Blue Owl Holdings GP Units and Blue Owl Carry GP Units, respectively, such that (after taking into account the transactions described in Section 2.6(a)(iii) and the Opal Group Blocker Mergers) the total number of Blue Owl GP Units owned by the Blue Owl GP (including indirectly through any Opal Group Blockers acquired by Blue Owl GP pursuant to any Opal Group Blocker Merger) following the issuances under Section 2.6(a) and Section 2.6(b) is equal to the aggregate sum of the number of the Buyer Class A Shares, the Buyer Class B Shares and the Buyer Class E Shares outstanding as of such time (and after giving effect to the Buyer Stockholder Redemption, the PIPE Financing, the transactions contemplated by the Forfeiture and Support Agreement and the issuance of Buyer Class A Shares to Opal Sellers pursuant to Section 2.3; provided, that any Blue Owl Holdings GP Units and Blue Owl Carry GP Units issued in respect of Buyer Class E Shares shall be Seller Earnout Units).

(d) Notwithstanding the foregoing provisions of this Section 2.6, no fractional shares of Buyer Capital Stock or fractional Blue Owl Holdings Common Units or Blue Owl Carry Common Units shall be issued under this Section 2.6, and no certificates or scrip for any such fractional Equity Securities shall be issued, and such fractional Equity Securities shall not entitle the owner thereof to vote or to any rights as a holder of the Buyer Capital Stock or Blue Owl Holdings Common Units or Blue Owl Carry Common Units, as applicable. Any Person who would otherwise be entitled to receive a fraction of a share of Buyer Capital Stock or a fraction of a Blue Owl Holdings Common Unit and a fraction of a Blue Owl Carry Common Unit under this Section 2.6 (after taking into account all Equity Securities held immediately prior to the Closing by such

 

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holder) shall, in lieu of such fraction of a share or unit and upon surrender of such holder’s Stock Certificate(s) or Book-Entry Common Shares, be paid in cash an amount equal to the amount of such fraction multiplied by the Per Share Price. Notwithstanding the foregoing, no amount shall be payable under this Section 2.6 in respect of a fraction of a share of the Buyer Class C Common Stock or the Buyer Class D Common Stock.

(e) The Parties acknowledge and agree that the Diamond Sellers in the aggregate are intended to receive 55%, and the Opal Sellers in the aggregate are intended to receive 45%, respectively, of the aggregate consideration to be received by all Sellers under this Agreement (whether in the form of cash, economic shares of the Buyer, or Blue Owl Units), in each case prior to any adjustment as provided in this Agreement for, in the case of the Diamond Sellers, the Diamond Closing Adjustment Amount, the Opal Special Liabilities, and in the case of the Opal Sellers, the Opal Closing Adjustment Amount, the Escrow Amount, and any consideration payable in respect of FIC Units. Accordingly, the provisions of Sections 2.3, 2.4, 2.5 and this Section 2.6 (and the defined terms used in such provisions) are intended to determine the form and allocation of, on the one hand, such 55% as between the various Diamond Sellers, and, on the other hand, such 45% as between the various Opal Sellers. In addition, the Parties acknowledge and agree that, immediately following the Closing, Blue Owl Holdings and Blue Owl Carry shall be held in identical proportions (such that each partner in Blue Owl Holdings and Blue Owl Carry holds the same number of units in each such entity), and that the number of Blue Owl Units held directly or indirectly by the Buyer (including through Blue Owl GP or any Opal Group Blocker acquired by Blue Owl GP pursuant to any Opal Group Blocker Merger) shall equal the number of economic shares of Buyer that are outstanding. Notwithstanding anything to the contrary in Sections 2.3, 2.4, 2.5 or this Section 2.6, this Agreement shall be interpreted consistently with the intent described in this Section 2.6(e).

Section 2.7 Closing Payments. Subject to the satisfaction or waiver of the conditions to the Closing set forth in Section 2.9, Section 2.10, Section 2.11 and Section 2.12 (other than those that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions), the Buyer shall, subject to the other terms and conditions of this Agreement, contribute all Available Closing Date Cash to Blue Owl GP and Blue Owl GP shall (i) pay the Escrow Amount to the Escrow Agent to be held in accordance with the Escrow Agreement and pay amounts at Closing in accordance with this Agreement and (ii) contribute such amounts to Blue Owl Holdings and Blue Owl Carry to pay Transaction Expenses (and, to the extent settled in cash, Opal Special Liabilities) and to provide for working capital for general corporate purposes.

Section 2.8 Closing Transactions.

(a) Closing Date. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place (a) by conference call and by exchange of signature pages by email, fax or other electronic transmission as promptly as practicable (and in any event no later than 9:00 a.m. eastern time on the third (3rd) Business Day) after the conditions set forth in Section 2.9, Section 2.10, Section 2.11 and Section 2.12 have been satisfied, or, if permissible, waived in writing by the Party entitled to the benefit of the same (other than those conditions which by their terms are required to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or (b) such other date and time as the Parties mutually agree (the date upon which the Closing occurs, the “Closing Date”).

 

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(b) Closing Deliverables.

(i) Buyer. At or prior to the Closing, the Buyer shall deliver, or cause to be delivered, to the other Parties, the following:

(1) evidence reasonably satisfactory to Nephrite and Opal of the adoption by the Company of the LTIP;

(2) counterparts to the Tax Receivable Agreement, duly executed by the Buyer, Blue Owl Holdings and Blue Owl Carry;

(3) counterparts to the Investor Rights Agreement, duly executed by the Buyer, Blue Owl Holdings and Blue Owl Carry;

(4) a duly executed A&R Blue Owl GP LLC Agreement;

(5) a counterpart to the A&R Blue Owl Holdings LP Agreement, duly executed by Blue Owl GP;

(6) a counterpart to the A&R Blue Owl Carry LP Agreement, duly executed by Blue Owl GP.

(ii) Nephrite. At or prior to the Closing, Nephrite shall deliver, or cause to be delivered, to the other Parties, the following:

(1) a counterpart to the Tax Receivable Agreement, duly executed by the applicable Diamond Sellers;

(2) a counterpart to the Investor Rights Agreement, duly executed by the applicable Diamond Sellers;

(3) a counterpart to the A&R Blue Owl Holdings LP Agreement, duly executed by the applicable Diamond Sellers;

(4) a counterpart to the A&R Blue Owl Carry LP Agreement, duly executed by the applicable Diamond Sellers;

(5) a counterpart to the Exchange Agreement, duly executed by the applicable Diamond Sellers;

(6) a duly completed and executed IRS Form W-9, dated as of the Closing Date, with respect to each Diamond Seller.

(iii) Opal. At or prior to the Closing, Opal Group, Opal Feeder and Opal Partners shall deliver, or cause to be delivered, to the other Parties, the following:

(1) counterparts to the Tax Receivable Agreement, duly executed by Opal Feeder and each other applicable Electing Opal Seller (or in the case of any Electing Opal Group Blocker, its Opal Group Blocker Representative);

 

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(2) counterparts to the Investor Rights Agreement, duly executed by Opal Feeder, each other Electing Opal Seller, Opal Partners and each Opal Principal;

(3) counterparts to the A&R Blue Owl Holdings LP Agreement, duly executed by Opal Feeder and each other applicable Electing Opal Seller;

(4) counterparts to the A&R Blue Owl Carry LP Agreement, duly executed by Opal Feeder and each other applicable Electing Opal Seller;

(5) counterparts to the Exchange Agreement, duly executed by Opal Feeder and each other applicable Electing Opal Seller; and

(6) a duly completed and executed certificate from each of Opal Group and Opal Carry, in each case dated as of the Closing Date, in accordance with Treasury Regulation Section 1.1445-11T(d)(2) certifying that (x) fifty percent (50%) or more of the value of the gross assets of Opal Group or Opal Carry (as applicable) do not consist of U.S. real property interests (within the meaning of Code Section 897) or (y) ninety percent (90%) or more of the value of the gross assets of Opal Group or Opal Carry (as applicable) do not consist of U.S. real property interests (within the meaning of Code Section 897), plus any cash or cash equivalents.

Section 2.9 Conditions to the Obligations of Each Party. The obligation of each Party to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or written waiver, as of the Closing Date, of each of the following conditions:

(a) Hart-Scott-Rodino Act. The waiting period applicable to the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated.

(b) Governmental Consents. The consents required from Governmental Entities set forth on Section 2.9(b) of the Opal Disclosure Letter and Section 2.9(b) of the Diamond Disclosure Letter shall have been obtained or, to the extent permitted by Law, waived in writing by each of the Parties.

(c) No Orders or Illegality. There shall not be any applicable Law in effect that makes the consummation of the transactions contemplated by this Agreement illegal or any Order in effect preventing the consummation of the transactions contemplated by this Agreement.

(d) Required Vote. The Required Vote shall have been obtained.

(e) Diamond Reorganization. The Diamond Reorganization shall have been effectuated on the terms described in Section 2.1.

(f) Opal Reorganization. The Opal Reorganization shall have been effectuated on the terms described in Section 2.1.

 

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(g) Key Professionals. (i) Each Key Professional shall have not repudiated his or her Executed Employment Agreement, and such Executed Employment Agreement shall remain in full force and effect and (ii) each Key Professional shall be a full-time employee in good standing of the Buyer or one of its Subsidiaries (for this purpose, assuming the Closing occurs) and shall not have given notice that such Key Professional intends to terminate his or her employment following the Closing.

(h) Opal Client Consents. (i) The consent of each BDC set forth on Section 2.9(h) of the Opal Disclosure Letter shall have been obtained in accordance with Section 9.2 and shall remain in full force and effect and (ii) the Requisite Opal Fund Approval from each Opal Private Fund set forth on Section 2.9(h) of the Opal Disclosure Letter shall have been obtained and shall remain in full force and effect.

(i) Diamond Fund Consents. The Requisite Diamond Fund Approval from each Diamond Fund set forth on Section 2.9(i) of the Diamond Disclosure Letter shall have been obtained and shall remain in full force and effect.

(j) Listing. The Buyer Class A Common Stock being issued in connection with the transactions contemplated by this Agreement, including the PIPE Financing, shall have been approved for listing on the NYSE, subject only to official notice of issuance.

Section 2.10 Conditions to Obligations of the Buyer. The obligations of the Buyer to consummate the transactions to be performed by the Buyer in connection with the Closing is subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

(a) Representations and Warranties.

(i) The representations and warranties of Nephrite and Opal Feeder set forth in Article III and Article V of this Agreement (other than the Diamond Business Fundamental Representations and the Opal Business Fundamental Representations) and of Nephrite, Opal Feeder and Opal Partners set forth in Article IV and Article VI and Article VIII of this Agreement (other than the Nephrite Fundamental Representations and Opal Fundamental Representations), in each case, without giving effect to any materiality or Diamond Material Adverse Effect or Opal Material Adverse Effect (as applicable) qualifiers contained therein (other than in respect of any defined term containing ‘Material Contract’), shall be true and correct as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have either a Diamond Material Adverse Effect or an Opal Material Adverse Effect; and

(ii) (A) each Diamond Business Fundamental Representation, Opal Business Fundamental Representation, Nephrite Fundamental Representation and Opal Fundamental Representation that is qualified by materiality, Diamond Material Adverse Effect (in the case of the Diamond Business Fundamental Representations and the Nephrite

 

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Fundamental Representations) or Opal Material Adverse Effect (in the case of the Opal Business Fundamental Representations and the Opal Fundamental Representations) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date); and (B) each other Diamond Business Fundamental Representation, Opal Business Fundamental Representation, Nephrite Fundamental Representation and Opal Fundamental Representation shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all material respects as of such date).

(b) Performance and Obligations of Nephrite, Opal Group, Opal Feeder and Opal Partners. None of Nephrite, Opal Group, Opal Feeder and Opal Partners shall be in material breach of any covenant or agreement contained in this Agreement that Nephrite, Opal Group, Opal Feeder and Opal Partners, as applicable, was required to perform or comply with prior to the Closing.

(c) Material Adverse Effect. Since the date of this Agreement, there shall have been no Diamond Material Adverse Effect or Opal Material Adverse Effect.

(d) Officers Certificates. (A) Nephrite shall deliver to the Buyer a duly executed certificate on behalf of Nephrite, dated as of the Closing Date, certifying that the conditions set forth in Section 2.10(a) and Section 2.10(b) (in each case, solely in respect of Nephrite and the Diamond Business) have each been satisfied and (B) Opal Group shall deliver to the Buyer a duly executed certificate on behalf of itself, Opal Feeder and Opal Partners, dated as of the Closing Date, certifying that the conditions set forth in Section 2.10(a) and Section 2.10(b) (in each case, solely in respect of Opal Group, Opal Feeder and Opal Partners and the Opal Business) have each been satisfied.

(e) PIPE Investment. The PIPE Financing providing equity financing to the Buyer in an amount not less than $750,000,000 solely for purposes of consummating the transactions contemplated by this Agreement shall have been consummated or will be consummated concurrently with the Closing.

Section 2.11 Conditions to Obligations of Nephrite. The obligation of Nephrite to consummate, or cause the consummation of, the transactions to be performed by Nephrite or its Subsidiaries, as applicable, in connection with the Closing is subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

(a) Buyer Domestication. The Domestication shall have been completed.

(b) Representations and Warranties.

(i) The representations and warranties of the Buyer set forth in Article VII of this Agreement (other than the Buyer Fundamental Representations), in each case, without giving effect to any materiality or Buyer Material Adverse Effect qualifiers contained therein, shall be true and correct as of the date of this Agreement and as of the

 

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Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Buyer Material Adverse Effect;

(ii) (A) each Buyer Fundamental Representation that is qualified by materiality or Buyer Material Adverse Effect shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date); and (B) each other Buyer Fundamental Representation shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all material respects as of such date);

(iii) The representations and warranties of Opal Feeder (on behalf of the Opal Business) set forth in Article V of this Agreement (other than the Opal Business Fundamental Representations) and the representations and warranties of Opal Feeder and Opal Partners set forth in Article VI and Article VIII of this Agreement (other than the Opal Fundamental Representations), in each case, without giving effect to any materiality or Opal Material Adverse Effect (as applicable) qualifiers contained therein (other than in respect of the defined term ‘Material Contract’), shall be true and correct as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have an Opal Material Adverse Effect; and

(iv) (A) each Opal Business Fundamental Representation and Opal Fundamental Representation that is qualified by materiality or Opal Material Adverse Effect shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date); and (B) each other Opal Business Fundamental Representation and Opal Fundamental Representation shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all material respects as of such date).

(c) Performance and Obligations of the Buyer. The Buyer shall not be in material breach of any covenant or agreement contained in this Agreement that the Buyer was required to perform or comply with prior to the Closing.

 

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(d) Performance and Obligations of Opal Group, Opal Feeder and Opal Partners. None of Opal Group, Opal Feeder and Opal Partners shall be in material breach of any covenant or agreement contained in this Agreement that Opal Group, Opal Feeder and Opal Partners, as applicable, was required to perform or comply with prior to the Closing.

(e) Material Adverse Effect. Since the date of this Agreement, there shall have been no Buyer Material Adverse Effect or Opal Material Adverse Effect.

(f) Buyer Officers Certificate. The Buyer shall deliver to Nephrite a duly executed certificate from an officer of the Buyer, dated as of the Closing Date, certifying that the conditions set forth in Section 2.11(b)(i), Section 2.11(b)(ii) and Section 2.11(c), and the condition set forth in Section 2.11(e) with respect to Buyer Material Adverse Effect, have been satisfied.

(g) Opal Officers Certificate. Opal Group shall deliver to Nephrite a duly executed certificate on behalf of itself, Opal Feeder and Opal Partners, dated as of the Closing Date, certifying that the conditions set forth in Section 2.11(b)(iii), Section 2.11(b)(iv) and Section 2.11(d), as applicable, and the condition set forth in Section 2.11(e) with respect to an Opal Material Adverse Effect, have each been satisfied.

(h) Available Closing Date Cash. Available Closing Date Cash shall not be less than $1,300,000,000.

(i) Buyer Governing Documents. The Buyer Certificate of Incorporation shall have been filed with the Secretary of State of the State of Delaware, and the Buyer shall have adopted the Buyer Bylaws.

Section 2.12 Conditions to Obligations of Opal. The obligations of Opal Group, Opal Feeder and Opal Partners to consummate the transactions to be performed by Opal Group, Opal Feeder and Opal Partners in connection with the Closing are subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

(a) Buyer Domestication. The Domestication shall have been completed.

(b) Representations and Warranties.

(i) The representations and warranties of the Buyer set forth in Article VII of this Agreement (other than the Buyer Fundamental Representations), in each case, without giving effect to any materiality or Buyer Material Adverse Effect qualifiers contained therein, shall be true and correct as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Buyer Material Adverse Effect;

(ii) (A) each Buyer Fundamental Representation that is qualified by materiality or Buyer Material Adverse Effect shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date); and (B) each other Buyer

 

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Fundamental Representation shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all material respects as of such date);

(iii) The representations and warranties of Nephrite (on behalf of the Diamond Business) set forth in Article III of this Agreement (other than the Diamond Business Fundamental Representations) and the representations and warranties of Nephrite set forth in Article IV of this Agreement (other than the Nephrite Fundamental Representations), in each case, without giving effect to any materiality or Diamond Material Adverse Effect (as applicable) qualifiers contained therein (other than in respect of the defined term ‘Material Contract’), shall be true and correct as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Diamond Material Adverse Effect; and

(iv) (A) each Diamond Business Fundamental Representation and Nephrite Fundamental Representation that is qualified by materiality or Diamond Material Adverse Effect shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all respects as of such date); and (B) each other Diamond Business Fundamental Representation and Nephrite Fundamental Representation shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all material respects as of such date).

(c) Performance and Obligations of the Buyer. The Buyer shall not be in material breach of any covenant or agreement contained in this Agreement that the Buyer was required to perform or comply with prior to the Closing.

(d) Performance and Obligations of Nephrite. Nephrite shall not be in material breach of any covenant or agreement contained in this Agreement that Nephrite was required to perform or comply with prior to the Closing.

(e) Material Adverse Effect. Since the date of this Agreement, there shall have been no Buyer Material Adverse Effect or Diamond Material Adverse Effect.

(f) Buyer Officers Certificate. The Buyer shall deliver to Opal a duly executed certificate from an officer of the Buyer, dated as of the Closing Date, certifying that the conditions set forth in Section 2.12(b)(i), Section 2.12(b)(ii) and Section 2.12(c), and the condition set forth in Section 2.12(e) with respect to Buyer Material Adverse Effect, have each been satisfied.

 

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(g) Nephrite Officers Certificate. Nephrite shall deliver to Opal a duly executed certificate on behalf of Nephrite, dated as of the Closing Date, certifying that the conditions set forth in Section 2.12(b)(iii), Section 2.12(b)(iv) and Section 2.12(d), and the condition set forth in Section 2.12(e) with respect to Diamond Material Adverse Effect, have each been satisfied.

(h) Available Closing Date Cash. Available Closing Date Cash shall not be less than $1,300,000,000.

(i) Buyer Governing Documents. The Buyer Certificate of Incorporation shall have been filed with the Secretary of State of the State of Delaware, and the Buyer shall have adopted the Buyer Bylaws.

Section 2.13 Frustration of Closing Conditions. None of Nephrite, Opal Group, Opal Feeder, Opal Partners or the Buyer may rely on the failure of any condition set forth in Section 2.9, Section 2.10, Section 2.11 or Section 2.12 to be satisfied if such failure was caused by such Party’s failure (or in the case of Opal Group, Opal Feeder or Opal Partners, any of Opal Group, Opal Feeder or Opal Partners’ respective failure) to act as required by this Agreement to cause such closing conditions to be satisfied.

Section 2.14 Waiver of Closing Conditions. Upon the occurrence of the Closing, any condition set forth in this Section 2.14 that was not satisfied as of the Closing shall be deemed to have been waived as of and from the Closing.

Section 2.15 Delayed Transfer. Conditioned on the transactions listed in Section 2.8 having occurred and immediately following the Closing, Nephrite and the Buyer shall procure that the applicable member of the Nephrite Group and the relevant Subsidiary of the Buyer enter into, and duly execute, such agreements and supplemental documents thereto as are required for the applicable member of the Nephrite Group to (i) sell and transfer the legal and beneficial title to (x) 99% of the entire issued share capital of Diamond Limited UK to Diamond Capital Holdings and (y) 1% of the entire issued share capital of Diamond Limited UK to Opal UK Holdings Limited; and (ii) for the HK Diamond Business Employees to be transferred to such Subsidiary of the Buyer as nominated by the Buyer with the prior written consent of Nephrite (which consent shall not be unreasonably withheld, conditioned or delayed).

Section 2.16 Post-Closing True-Ups.

(a) Within 90 days following the Closing Date, the Buyer shall prepare and deliver to Nephrite and Opal Feeder (i) an unaudited consolidated balance sheet of Diamond Transferred Companies as of immediately following the Diamond Reorganization (the “Diamond Closing Balance Sheet”), (ii) an unaudited consolidated balance sheet of the Opal Transferred Companies as of immediately following the Opal Reorganization (the “Opal Closing Balance Sheet”) and (iii) a statement (the “Post-Closing Statement”) setting forth the Buyers’ calculations of the Diamond Final Adjustment Amount (and its constituent components) and the Opal Final Adjustment Amount (and its constituent components), respectively. The Diamond Closing Balance Sheet shall be prepared on a consolidated basis for the Diamond Transferred Companies in accordance with GAAP applied on a basis consistent with the methodologies, practices, estimation techniques, assumptions and principles used in the preparation of the Diamond

 

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Financial Statements and Opal Closing Balance Sheet shall be prepared on a consolidated basis for the Opal Transferred Companies in accordance with GAAP applied on a basis consistent with the methodologies, practices, estimation techniques, assumptions and principles used in the preparation of the Opal Financial Statements and, in each case of the Diamond Closing Balance Sheet and the Opal Closing Balance Sheet, in a manner consistent with the sample working capital statement attached hereto as Section 1.1(f) of the Opal Disclosure Letter. During the 20 days immediately following Nephrite’s and Opal Feeder’s respective receipt of the Diamond Closing Balance Sheet, Opal Closing Balance Sheet and the Post-Closing Statement, subject to execution and delivery of a customary hold harmless letter in favor of the Person(s) preparing such work papers, Nephrite and Opal Feeder shall be permitted to review such working papers relating to the Diamond Closing Balance Sheet, Opal Closing Balance Sheet and the Post-Closing Statement. The Diamond Closing Balance Sheet, Opal Closing Balance Sheet and the Post-Closing Statement shall become final and binding upon the parties 20 days following Nephrite and Opal Feeder’s receipt thereof unless either of the same gives written notice of its disagreement (each a “Notice of Disagreement”) to the other and the Buyer prior to such date. Any Notice of Disagreement shall (x) specify in reasonable detail the nature and amount of any disagreement so asserted, and (y) only include disagreements based on mathematical errors or based on the Diamond Closing Balance Sheet, Opal Closing Balance Sheet or Closing Statement not being prepared in accordance with this Agreement.

(b) If a timely Notice of Disagreement is received by the Buyer, as applicable, then the Diamond Closing Balance Sheet, the Opal Closing Balance Sheet and the Post-Closing Statement (as revised in accordance with clause (i) or (ii) below) shall become final and binding upon the parties on the earlier of (i) the date Nephrite, Opal Feeder and the Buyer resolve in writing any and all differences they have with respect to any matter specified in any Notice of Disagreement and (ii) the date any matters properly in dispute are finally resolved in writing by the Accounting Firm. During the 30 days immediately following the delivery of a Notice of Disagreement, Nephrite, Opal Feeder and the Buyer shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in any Notice of Disagreement, and all such discussions related thereto shall (unless otherwise agreed by Nephrite, Opal Feeder and the Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. At the end of such 30-day period, Nephrite, Opal Feeder and the Buyer shall submit to an accounting firm mutually agreed upon by Nephrite, Opal Feeder and the Buyer (the “Accounting Firm”), who shall act as an expert and not as an arbitrator, for review and resolution of any and all matters (but only such matters) which remain in dispute and which were properly included in any Notice of Disagreement. Nephrite, Opal Feeder and the Buyer shall instruct the Accounting Firm to make a final determination of the items included in the Diamond Closing Balance Sheet, the Opal Closing Balance Sheet and the Post-Closing Statement (to the extent such amounts are in dispute) in accordance with the guidelines and procedures set forth in this Agreement. Nephrite, Opal Feeder and the Buyer will cooperate with the Accounting Firm during the term of its engagement. Nephrite, Opal Feeder and the Buyer shall instruct the Accounting Firm not to, and the Accounting Firm shall not, assign a value to any item in dispute greater than the greatest value for such item assigned by the Buyer in the Diamond Closing Balance Sheet, Opal Closing Balance Sheet and the Post-Closing Statement or by Nephrite or Opal Feeder in an applicable Notice of Disagreement, or less than the smallest value for such item assigned by the Buyer in the Diamond Closing Balance Sheet, Opal Closing Balance Sheet and the Post-Closing Statement or by Nephrite or Opal Feeder in an applicable Notice of Disagreement. Opal

 

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Feeder, Nephrite and the Buyer shall also instruct the Accounting Firm to, and the Accounting Firm shall, make its determination based solely on written submissions (which written submissions shall be limited to the remaining items in dispute set forth in the Notice of Disagreement) submitted by each of Opal Feeder, Nephrite and the Buyer (which the Accounting Firm shall forward to Opal Feeder, Nephrite and/or the Buyer, as applicable), and such written submissions shall be in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The Diamond Closing Balance Sheet, the Opal Closing Balance Sheet, the Post-Closing Statement and the resulting Diamond Final Adjustment Amount and Opal Final Adjustment Amount shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution in writing to Opal Feeder, Nephrite and the Buyer (which final resolution shall be requested by the parties to be delivered not more than 45 days following submission of such disputed matters), and such resolution by the Accounting Firm shall not be appealable. The fees and expenses of the Accounting Firm pursuant to this Section 2.16 shall be borne by the Buyer.

(c) Following the Final Determination of the Diamond Final Adjustment Amount, (i) if there is any Diamond Final Excess, the Diamond Final Excess shall be distributed in immediately available funds to such account(s) as may be designated in writing by Nephrite, and (ii) if there is any Diamond Final Deficit, Nephrite shall indemnify the Buyer Indemnified Parties against such Diamond Final Deficit in accordance with Section 14.3.

(d) Following the Final Determination of the Opal Final Adjustment Amount, (i) if there is any Opal Final Excess, the Opal Final Excess shall be available to satisfy any indemnification claims against the Opal Group Class A Members in accordance with Section 14.7(c), and (ii) if there is any Opal Final Deficit, Opal Feeder and the Opal Group Class A Members shall indemnify the Buyer Indemnified Parties against such Opal Final Deficit in accordance with Section 14.4(b).

Section 2.17 Earnout.

(a) Seller Earnout Securities. Upon the Closing (for the avoidance of doubt, following the transactions contemplated by the Forfeiture and Support Agreement), on the Closing Date, the Seller Earnout Securities will be subject to (x) restrictions on transfer, as more fully described in Section 2.17(b)(iv), the Buyer Certificate of Incorporation, the Investor Rights Agreement and the A&R Blue Owl Operating Agreements, as applicable, and (y) forfeiture in the event such Seller Earnout Securities are not earned in accordance with Section 2.17(c) on or prior to the fifth anniversary of the Closing Date (the “Earnout Termination Date”).

(b) Procedures Applicable to the Seller Earnout Securities.

(i) At the Closing, (x) the Buyer shall place the restrictive legends, in substantially the form set forth in Section 2.17(b)(i)(1), on the certificates or book entries representing the Seller Earnout Shares, and (y) the Blue Owl Companies shall place the restrictive legends, in substantially the form set forth in Section 2.17(b)(i)(2), on their respective certificates or book entries representing the Seller Earnout Units (as applicable):

 

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(1) “THESE SECURITIES ARE SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH IN THE BUSINESS COMBINATION AGREEMENT, DATED DECEMBER 23, 2020 (THE “COMBINATION AGREEMENT”), BY AND AMONG BLUE OWL CAPITAL INC., A DELAWARE CORPORATION FORMERLY KNOWN AS ALTIMAR ACQUISITION CORPORATION (THE “CORPORATION”), OWL ROCK CAPITAL GROUP LLC, OWL ROCK CAPITAL FEEDER LLC, OWL ROCK CAPITAL PARTNERS LP, AND NEUBERGER BERMAN GROUP LLC, AS THE SAME MAY BE AMENDED, RESTATED OR AMENDED & RESTATED FROM TIME TO TIME, AND NO TRANSFER OF THESE SECURITIES WILL BE VALID OR EFFECTIVE UNTIL THE CONDITIONS CONTAINED IN THE COMBINATION AGREEMENT, IF ANY, HAVE BEEN FULFILLED.”

(2) “THESE SECURITIES ARE SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH IN THE BUSINESS COMBINATION AGREEMENT, DATED DECEMBER 23, 2020 (THE “COMBINATION AGREEMENT”), BY AND AMONG BLUE OWL CAPITAL INC., A DELAWARE CORPORATION FORMERLY KNOWN AS ALTIMAR ACQUISITION CORPORATION (THE “CORPORATION”), OWL ROCK CAPITAL GROUP LLC, OWL ROCK CAPITAL FEEDER LLC, OWL ROCK CAPITAL PARTNERS LP, AND NEUBERGER BERMAN GROUP LLC, AS THE SAME MAY BE AMENDED, RESTATED OR AMENDED & RESTATED FROM TIME TO TIME, AND NO TRANSFER OF THESE SECURITIES WILL BE VALID OR EFFECTIVE UNTIL THE CONDITIONS CONTAINED IN THE COMBINATION AGREEMENT, IF ANY, HAVE BEEN FULFILLED.”

(ii) Promptly upon the occurrence of any Triggering Event, or as soon as practicable after the Sponsor, the Buyer, Blue Owl Holdings or Blue Owl Carry becomes aware of the occurrence of such Triggering Event or receives written notice of a Triggering Event from Opal Partners or Nephrite, the Buyer shall prepare and deliver, or cause to be prepared and delivered, in consultation with Opal Partners and Nephrite, a mutually agreeable written notice to the Sellers (each, a “Blue Owl Earnout Notice”), which Blue Owl Earnout Notice shall set forth in reasonable detail the Triggering Event giving rise to the Seller Earnout Securities becoming earned, and the number of Seller Earnout Securities that are so earned.

(iii) Promptly following the later of (x) the date of delivery of an Earnout Notice and (y) the date on which the Lock Up Period (as defined in the Buyer Certificate of Incorporation or the A&R Blue Owl Operating Agreements, as applicable) expires with respect to the applicable Seller Earnout Security, the Buyer (with respect to the Seller Earnout Shares that have been earned) and the Blue Owl Companies (with respect to the Seller Earnout Units that have been earned) shall cause the restrictive legends set forth in Section 2.17(b)(i) to be removed from certificates or book entries representing such Seller Earnout Shares or Seller Earnout Units, as applicable.

 

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(iv) Subject to, and without limitation of, the terms of the Buyer Certificate of Incorporation, the Buyer Bylaws, the Investor Rights Agreement, the A&R Blue Owl Operating Agreements and the Exchange Agreement, as applicable, the holders of the Seller Earnout Securities shall not (A) directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, any of the Seller Earnout Shares or Seller Earnout Units or (B) Exchange any Seller Earnout Units pursuant to the Exchange Agreement (the restrictions in clauses (A) and (B), the “Earnout Restrictions”), in each case, until the date on which the relevant Triggering Event(s) has been satisfied as described in Section 2.17(c) below, and thereafter, such Seller Earnout Shares and Seller Earnout Units shall continue to be subject to the terms and restrictions of the Buyer Certificate of Incorporation, the Buyer Bylaws, the Investor Rights Agreement, the A&R Blue Owl Operating Agreements and the Exchange Agreement, as applicable, including any applicable Lock Up Period thereunder; provided, that, notwithstanding the foregoing, the holders of the Seller Earnout Securities may transfer such Seller Earnout Securities to their Permitted Transferees pursuant to a Permitted Transfer (in each case, as defined in the Investor Rights Agreement).

(v) For the avoidance of doubt, no additional shares of the Buyer Capital Stock, Blue Owl Holdings Common Units or Blue Owl Carry Common Units will subject to the Earnout Restrictions in this Section 2.17, and upon the earlier of (i) all of the Seller Earnout Securities becoming earned in accordance with this Section 2.17, and (ii) the Earnout Termination Date, the provisions of this Section 2.17 shall no longer have any force or effect. Notwithstanding the foregoing, any Seller Earnout Securities that are not earned in accordance with the terms of Section 2.17 as of the end of the day on the Earnout Termination Date shall be automatically forfeited to the Buyer, with respect to the Seller Earnout Shares, and Blue Owl Holdings or Blue Owl Carry (as applicable), with respect to the Seller Earnout Units, in each case without any further action by any Person, and cancelled and retired and the Sellers shall not have any rights with respect thereto.

(c) Triggering Events. The Seller Earnout Securities shall be earned, and as a result no longer subject to the Earnout Restrictions, as follows (each such event, a “Triggering Event”):

(i) with respect to any Buyer Series E-1 Share or Series E-1 Seller Earnout Unit, the earlier to occur of the following:

(1) the Volume Weighted Average Share Price equals or exceeds $12.50 per share for any 20 consecutive trading days following the Closing; and

(2) if PubCo or the Blue Owl Companies are consummating a merger, consolidation, tender offer, exchange offer or business combination or sale of all or substantially all of its assets and (x) the consideration payable per Buyer Class A Share or (y) the aggregate consideration payable per Blue Owl Holdings Common Unit and Blue Owl Carry Common Unit (taken as a whole), as applicable, exceeds $12.50 per share or per unit; and

(ii) with respect to any Buyer Series E-2 Share or Series E-2 Seller Earnout Unit, the earlier to occur of the following:

 

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(1) the Volume Weighted Average Share Price equals or exceeds $15.00 per share for any 20 consecutive trading days following the Closing; and

(2) if PubCo or the Blue Owl Companies are consummating a merger, consolidation, tender offer, exchange offer or business combination or sale of all or substantially all of its assets and (x) the consideration payable per Buyer Class A Share or (y) the aggregate consideration payable per Blue Owl Holdings Common Unit and Blue Owl Carry Common Unit (taken as a whole), as applicable, exceeds $15.00 per share or per unit.

(d) Achievement of Multiple of Triggering Events. For the avoidance of doubt, if the condition for more than one Triggering Event is met pursuant to Section 2.17(c), (i) the Seller Earnout Securities earned in connection with each such Triggering Event shall be earned and no longer subject to the Earnout Restrictions accordance with this Section 2.17, and shall be cumulative with the Seller Earnout Securities earned prior to such time in connection with the satisfaction of any other Triggering Event (if any) and (ii) in no event shall the Sellers or any other Person be entitled to a number of Seller Earnout Securities, as applicable, which is greater than the number of Seller Earnout Securities, as applicable, issued upon the Closing in accordance with this Agreement.

(e) Adjustments. If the Buyer, Blue Owl Holdings or Blue Owl Carry at any time combines or subdivides (by any stock split, stock dividend, recapitalization, reorganization, merger, amendment of the Certificate of Incorporation, amendment of the A&R Blue Owl Holdings LP Agreement, amendment of the A&R Blue Owl Carry LP Agreement, scheme, arrangement or otherwise or extraordinary dividend resulting from an asset sale or leveraged recapitalization), each of the applicable per share prices in Section 2.17(c) shall be equitably adjusted by the Buyer in good faith to take into account such stock split, stock dividend, recapitalization, reorganization, merger, amendment of the Certificate of Incorporation, amendment of the A&R Blue Owl Holdings LP Agreement, amendment of the A&R Blue Owl Carry LP Agreement, scheme, arrangement or extraordinary dividend or other applicable transaction.

Section 2.18 Withholding. Each of the Parties and the Blue Owl Companies shall be entitled to deduct and withhold from any amount payable pursuant to this Agreement such amounts as such Person is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or non-U.S. Tax Law; provided, however, that such Person shall use commercially reasonable efforts to notify any applicable payee prior to the making of such deduction or withholding and shall reasonably cooperate with such payee to determine whether any such deduction or withholding (other than any deduction or withholding required by reason of such payee’s failure to comply with the last sentence of this Section 2.18) are required under applicable Law and to obtain any available exemption or reduction of, or otherwise minimize to the extent permitted by applicable Law, such deduction and withholding. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made. Without limiting Section 2.8(b)(ii)(6) and Section 2.8(b)(iii)(6), each payee shall promptly provide any applicable Party or the Blue Owl Companies (or other applicable withholding agent) with any applicable Tax forms and certifications (including IRS Form W-9 or the applicable version of IRS Form W-8) reasonably requested and shall promptly provide an update of any such Tax form or certificate previously delivered if the same has become incorrect or has expired.

 

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Article III

REPRESENTATIONS AND WARRANTIES REGARDING THE DIAMOND BUSINESS

As an inducement to Opal Group, Opal Feeder, Opal Partners and the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, except as set forth in the applicable section of the Diamond Disclosure Letter, Nephrite represents and warrants to Opal Group, Opal Feeder, Opal Partners and the Buyer, as of the date of this Agreement and as of the Closing Date (except, with respect to such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, which shall be given as of such date), as follows:

Section 3.1 Organization; Authority; Enforceability. Each Diamond Transferred Company and each Diamond Fund, as applicable: (a) is duly organized or formed, validly existing, and in good standing (or the equivalent) under the Laws of its jurisdiction of organization or formation (or, if continued in another jurisdiction, under the Laws of its current jurisdiction of registration (as applicable)), (b) is qualified to do business and is in good standing (or the equivalent) in the jurisdictions in which the conduct of its business or locations of its assets and/or its leasing, ownership, or operation of properties makes such qualification necessary, except where the failure to be so qualified to be in good standing (or the equivalent) would not reasonably be expected to have a Diamond Material Adverse Effect and (c) has the requisite organizational power and authority to own, lease and operate its properties and to carry on its businesses as presently conducted. Correct and complete copies of the Governing Documents of each Diamond Transferred Company and each Diamond Fund, as in effect on the date of this Agreement, have been made available to Opal Group and the Buyer. Except as set forth on Section 3.1 of the Diamond Disclosure Letter, none of the Diamond Transferred Companies nor any Diamond Fund is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

Section 3.2 Capitalization and Related Matters.

(a) (i) Section 3.2(a)(i) of the Diamond Disclosure Letter sets forth each legal entity that comprises the Diamond Business as of the date of this Agreement (and that shall comprise the Diamond Business until the completion of the Diamond Reorganization), the beneficial owners of such legal entities and a description of the function of each such legal entity and noting whether such legal entity is a Diamond Transferred Company, (ii) Section 3.2(a)(ii) of the Diamond Disclosure Letter sets forth the entire authorized, issued, and outstanding Equity Securities of each Diamond Transferred Company (identifying each beneficial owner thereof, as of the date of this Agreement and as of immediately prior to the Closing), (iii) except as set forth in Section 3.2(a)(iii) of the Diamond Disclosure Letter, no Person is entitled to receive any management fees, Promote Distributions or other fees payable or other economics related to the Diamond Business other than a Diamond Transferred Company and (iv) except as set forth in Section 3.2(a)(iv) of the Diamond Disclosure Letter, all of the outstanding Equity Securities of each Diamond Transferred Company are duly authorized and validly issued and, to the extent such concepts are applicable, fully paid and non-assessable and have not been issued in violation of applicable Law or the Governing Documents of such Diamond Transferred Company. All Equity Securities of any Diamond Transferred Company held by the Nephrite Group are held free and clear of all Liens (other than Permitted Liens).

 

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(b) Except as set forth on Section 3.2(b) of the Diamond Disclosure Letter, no Diamond Transferred Company has any outstanding Equity Securities not held by the Nephrite Group or another Diamond Transferred Company.

(c) None of the Diamond Transferred Companies owns beneficially or of record any Equity Securities in any Person (other than one or more other Diamond Transferred Companies or Diamond Funds).

(d) There are no bonds, debentures, notes or other Indebtedness of any Diamond Transferred Company that grant to a third party the right to vote (or that are convertible into, or exchangeable for, securities having the right to vote) with the equity holders of the Diamond Transferred Companies on any matters. Except as set forth on Section 3.2(d) of the Diamond Disclosure Letter, there are no voting trusts, irrevocable proxies or other Contracts to which any Diamond Transferred Company is a party or is bound with respect to the voting or consent of any ownership interests of any Diamond Transferred Company. There are no outstanding stock appreciation or phantom stock rights with respect to any Diamond Transferred Company.

Section 3.3 No Breach.

(a) Except as set forth on Section 3.3 of the Diamond Disclosure Letter and except as required under the HSR Act, no Permit is required to be obtained or made by or with respect to the Diamond Transferred Companies or any of the Diamond Funds in connection with the execution, delivery and performance of this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated by this Agreement and thereby, other than the failure of which to be obtained or made would not, individually or in the aggregate, (x) be material to the Diamond Business, taken as a whole, or (y) reasonably be expected to prevent or materially delay the ability of Nephrite to consummate the transactions contemplated by this Agreement.

(b) The execution, delivery and performance of this Agreement and each Ancillary Agreement, the consummation of the transactions contemplated by this Agreement and thereby and the fulfillment of and compliance with the respective terms of this Agreement and thereof by Nephrite with respect to the Diamond Business do not and shall not (i) materially conflict with or result in a material breach or material violation of, (ii) constitute or result in a termination (or right of termination) or a material default (or give rise to any material right of cancellation, redemption, payment or acceleration) under (whether with or without the passage of time, the giving of notice or both), (iii) result in the creation of any Lien (other than Permitted Liens) upon any of the Diamond Assets pursuant to, or (iv) create any right to material payment or any other material right (concurrently or with the passage of time and/or upon the occurrence of one or more events or conditions) under any of the following:

(i) the Governing Documents of any Diamond Transferred Company;

 

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(ii) subject to the receipt of consents described in Section 3.3(a) or Section 10.1 of this Agreement, any Law to which any Diamond Transferred Company, any of the Diamond Funds or the Nephrite Group (solely to the extent related to the Diamond Business) is subject; or

(iii) any Diamond Material Contract (including, for the avoidance of doubt, any Diamond Fund Documentation and Client Contracts of any Diamond Fund).

Section 3.4 Financial Statements and Related Matters.

(a) Section 3.4(a) of the Diamond Disclosure Letter sets forth true, correct, and complete copies of the following financial statements (collectively, the “Diamond Financial Statements”):

(i) the audited combined financial statements of the Diamond Business as of December 31, 2019 and December 31, 2018, including the combined statements of assets, liabilities and members’ equity as of, and the related audited combined statements of revenue, expenses and members’ equity (deficit) and statements of operations and cash flows for, the fiscal year then ended (the “Audited Diamond Financial Statements”); and

(ii) the unaudited combined statement of financial position of the Diamond Business as of September 30, 2020 (such date, the “Latest Balance Sheet Date” and such statement, the “Latest Diamond Balance Sheet”), including the statements of assets, liabilities and members’ equity as of, and the related statements of revenue, expenses and members’ equity and cash flows for, the nine (9) month period then ended (the “Unaudited Diamond Financial Statements”).

(b) Each of the Diamond Financial Statements (including the notes thereto, if any) presents fairly in all material respects the financial position, results of operations and (in the case of the Audited Diamond Financial Statements) cash flows of the Diamond Business included and specified therein on a combined basis as of the dates thereof and for the periods covered thereby in accordance with GAAP, consistently applied throughout the periods covered thereby (subject, in the case of the Unaudited Diamond Financial Statements described in Section 3.4(a)(ii), to the absence of footnote disclosures and, in the case of the Latest Diamond Balance Sheet, normal year-end adjustments for recurring accruals that are not expected to be material).

(c) The Diamond Business has designed and maintains a system of internal controls over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) of the Securities Exchange Act, sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Diamond Business maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability and (iii) access to assets is permitted only in accordance with management’s general or specific authorization.

 

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Section 3.5 Absence of Undisclosed Liabilities. Except as set forth on Section 3.5 of the Diamond Disclosure Letter, the Diamond Business and Diamond Transferred Companies do not have any Liabilities of any kind or nature whatsoever (including Liabilities to reimburse Nephrite), whether known or unknown, accrued, contingent, absolute, determined, or determinable, whether otherwise due or to become due, and whether or not required to be included on a balance sheet prepared in accordance with GAAP, other than: (i) Liabilities to the extent set forth or reflected on the Latest Diamond Balance Sheet or disclosed in the notes thereto or in the notes to the other financial statements that are the subject of or disclosed in the notes thereto or in the notes to the other financial statements that are the subject of Section 3.4; (ii) Liabilities that have arisen after the Latest Balance Sheet Date in the Ordinary Course of Business (none of which is a material Liability resulting from noncompliance with any applicable Laws or Permits, breach of contract, breach of warranty, tort, infringement, misappropriation, dilution, claim, or lawsuit); (iii) Liabilities to the extent incurred in connection with the transactions contemplated by this Agreement; (iv) Indebtedness that will be accounted for in the Diamond Indebtedness Amount; and (v) other Liabilities that would not, individually or in the aggregate, reasonably be expected to result in a Diamond Material Adverse Effect.

Section 3.6 No Diamond Material Adverse Effect. Since the Latest Balance Sheet Date through the date of this Agreement, there has been no Diamond Material Adverse Effect.

Section 3.7 Absence of Certain Developments. Except as set forth on Section 3.7 of the Diamond Disclosure Letter or as expressly contemplated by this Agreement, since the Latest Balance Sheet Date, (a) the Diamond Business has operated in all material respects in the Ordinary Course of Business and (b) Nephrite has not taken (or has caused or permitted to be taken on its behalf) any action solely to the extent relating to the Diamond Business that would, if taken after the date of this Agreement, require the Buyer’s Consent under Section 9.1(a).

Section 3.8 Diamond Assets. As of the date of this Agreement, except as set forth on Section 3.8 of the Diamond Disclosure Letter, the Nephrite Group (including through leases, licenses, Contracts or other arrangements) has good and valid title to, a valid leasehold interest in or a valid license to use the Diamond Assets, whether tangible or intangible, used or held for use by it, located on its premises, shown on the Latest Diamond Balance Sheet (other than Diamond Assets acquired or disposed of thereafter in the Ordinary Course of Business), free and clear of all Liens (other than Permitted Liens). Subject to Section 2.15 and except as contemplated by Section 10.1, as of the completion of the Diamond Reorganization, a Diamond Transferred Company, including through leases, licenses, Contracts or other arrangements, shall have good and valid title to, a valid leasehold interest in or a valid license to use the Diamond Assets, whether tangible or intangible, used or held for use by it, located on its premises, shown on the Latest Diamond Balance Sheet (other than Diamond Assets acquired or disposed of thereafter in the Ordinary Course of Business), free and clear of all Liens (other than Permitted Liens).

Section 3.9 Tax Matters. Except as set forth on Section 3.9 of the Diamond Disclosure Letter:

(a) Each Diamond Transferred Company has filed all Income Tax Returns and other material Tax Returns required to be filed by it pursuant to applicable Laws (taking into account any validly obtained extensions of time within which to file). All Income Tax Returns

 

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and other material Tax Returns filed by each of the Diamond Transferred Companies are correct and complete in all material respects and have been prepared in material compliance with all applicable Laws. All material amounts of Taxes due and payable by each of the Diamond Transferred Companies (taking into account applicable extensions) and for which the applicable statute of limitations remains open have been paid (whether or not shown as due and payable on any Tax Return).

(b) Each Diamond Transferred Company has properly withheld or collected and paid to the applicable Taxing Authority all material amounts of Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and all material sales, use, ad valorem, value added, and similar Taxes and has otherwise complied in all material respects with all applicable Laws relating to the withholding, collection and payment of such Taxes.

(c) No written claim has been made by a Taxing Authority in a jurisdiction where a Diamond Transferred Company does not file a particular type of Tax Return, or pay a particular type of Tax, that such Diamond Transferred Company is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction, which claim has not been settled or resolved.

(d) No Diamond Transferred Company is currently or has been within the past five (5) years the subject of any Tax Proceeding with respect to any Taxes or Tax Returns of or with respect to any Diamond Transferred Company, no such Tax Proceeding is pending, and, to the Knowledge of Nephrite, no such Tax Proceeding has been threatened in writing, in each case, that has not been settled or resolved. No Diamond Transferred Company has commenced a voluntary disclosure proceeding in any jurisdiction that has not been resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against any Diamond Transferred Company have been fully paid, settled or withdrawn, and, to the Knowledge of Nephrite, no such deficiency has been threatened or proposed in writing against any Diamond Transferred Company.

(e) Except for extensions resulting from the extension of the time to file any applicable Tax Return, there are no outstanding agreements extending or waiving the statute of limitations applicable to any Tax or Tax Return with respect to any Diamond Transferred Company or extending a period of collection, assessment or deficiency for Taxes due from or with respect to any Diamond Transferred Company, which period (after giving effect to such extension or waiver) has not yet expired, and no written request for any such waiver or extension is currently pending. No Diamond Transferred Company is the beneficiary of any extension of time (other than a validly obtained extension of time not requiring the consent of the applicable Governmental Entity or other extension of time obtained in the Ordinary Course of Business) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, or other similar ruling or request has been granted or issued by, or is pending with, any Governmental Entity.

(f) No Diamond Transferred Company has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state or local or non-U.S. Tax Law).

 

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(g) Each Diamond Transferred Company is and at all times since its formation has been classified as a partnership or disregarded entity for U.S. federal income tax purposes.

(h) No Diamond Transferred Company will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) beginning after the Closing Date (determined with and without regard to the transactions contemplated by this Agreement) as a result of: (i) an installment sale transaction occurring on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a disposition occurring on or before the Closing Date reported as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii) any prepaid amounts received on or prior to the Closing Date or deferred revenue realized, accrued or received, in each case, outside the Ordinary Course of Business on or prior to the Closing Date; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; or (vi) as a result of application of Code Section 965 or any similar provision of U.S. state or local or non-U.S. Tax Law.

(i) No Diamond Transferred Company has deferred any “applicable employment taxes” under Section 2302 of the CARES Act, and the Diamond Transferred Companies have properly complied with all requirements for obtaining for all material credits that the Diamond Transferred Companies have claimed under Section 2301 of the CARES Act or any similar provision of U.S. state or local or non-U.S. Tax Law.

(j) There is no Lien for Taxes on any of the assets of any Diamond Transferred Company, other than Permitted Liens.

(k) No Diamond Transferred Company has any Liability for Taxes of any other Person (other than any Diamond Transferred Company or Diamond Fund) as a successor or transferee, by Contract, by operation of Law, or otherwise (other than pursuant to an Ordinary Course Tax Sharing Agreement). No Diamond Transferred Company is party to or bound by any Tax Sharing Agreement, except for any Ordinary Course Tax Sharing Agreement or any agreement by any Blue Owl Flow-Thru Companies to make customary tax distributions to its owners.

(l) The unpaid Taxes of the Diamond Transferred Companies do not materially exceed reserves for Tax Liabilities as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Diamond Transferred Companies in filing their Tax Returns.

(m) Each owner of Diamond Capital Holdings immediately prior to Closing is not a foreign person within the meaning of Code Section 1445 or Code Section 1446(f).

(n) No election has been made under Treasury Regulation Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Diamond Transferred Company. No Diamond Transferred Company has been subject to any Tax Proceeding for which it was eligible to make but did not make an election under Code Section 6226.

 

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(o) To the Knowledge of Nephrite, no Diamond Transferred Company has taken or agreed to take any action not contemplated by this Agreement and/or any related Ancillary Agreements that could reasonably be expected to prevent, impair or impede the Intended Tax Treatment.

Section 3.10 Diamond Material Contracts.

(a) Section 3.10 of the Diamond Disclosure Letter lists all of the following Contracts (other than Diamond Employee Benefit Plans) (such Contracts, together with the Client Contracts related to the Diamond Business and the Diamond Fund Documentation, the “Diamond Material Contracts”), to which any entity in the Nephrite Group is a party (solely to the extent such Contract relates to the Diamond Business), as of the date of this Agreement:

(i) other than Governing Documents of the Nephrite Group, any Contract between the Nephrite Group (other than the Diamond Transferred Companies), on the one hand, and any of the Diamond Transferred Companies, on the other hand, and any Contract between the Nephrite Group, on the one hand, and one or more of the Diamond Principals or one or more of the directors, officers or senior management employees of the Nephrite Group (solely to the extent entered into on behalf of or otherwise related to the Diamond Business), on the other hand (each such Contract, a “Diamond Affiliate Arrangement”);

(ii) each Material Lease;

(iii) any agreement with a deferred purchase price payment and any funding agreement, indenture, credit agreement, loan agreement, note mortgage, guarantee security agreement, or other Contract for financing or funding currently outstanding or available for draw after the date of this Agreement relating to the securing or borrowing of money, in each case, solely to the extent the Nephrite Group (solely to the extent relating to the Diamond Business) is an obligor or has material outstanding liabilities under the respective agreement;

(iv) any placement, agency, dealer, sales representative, distribution, investor referral (for which a fee is charged), solicitation, marketing, transfer agent, or similar Contract, in each case, with respect to the Diamond Funds;

(v) other than Governing Documents of the Nephrite Group, any joint venture, strategic alliance, distribution, partnership, or similar Contract, and any Contract involving a sharing of profits, expenses, or payments, in each case of the Diamond Business;

(vi) any Contract that is primarily a Contract of guarantee, support, indemnification (for the avoidance of doubt, excluding ordinary course indemnification obligations or indemnification related to breach of Contract and insurance policies), assumption, or endorsement of or any similar commitment with respect to Liabilities of any Person (other than such contracts of any Diamond Transferred Company related to obligations of any other Diamond Transferred Company);

 

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(vii) any material Contract with any Governmental Entity solely to the extent relating to the Diamond Business (other than a Contract relating to an investment by a Governmental Entity in a Diamond Fund);

(viii) other than Governing Documents of the Nephrite Group, any Contract that contains any restriction that has not expired on the Diamond Business’s or any Diamond Principal’s ability to invest in industry or engage in any business or in any geographic area or in competitors of specified Persons or binds the Diamond Business or any Diamond Principal to any non-competition, exclusive dealing or material non-solicitation obligations (other than (x) customary employee non-solicitation provisions, (y) nondisclosure and confidentiality obligations and agreements, in each case with respect to prospective or actual portfolio investments (z) any Contract with Diamond Funds, including acquisition agreements, equity or subscription agreements, registration rights agreements or shareholder agreements) or that obligates the Diamond Business or any Diamond Principal to conduct business with a third party on an exclusive basis;

(ix) other than this Agreement or any Ancillary Agreement, any Contract relating to the acquisition or disposition of any business or operations of the Diamond Business (whether by merger, sale of stock, sale of assets, or otherwise) as to which there are any ongoing material obligations;

(x) other than Governing Documents of the Nephrite Group, any Contract pursuant to which a third party would reasonably be expected to have a valid right to prevent, materially impair, or materially delay the consummation of the Closing;

(xi) any Contract that requires the Diamond Business to pay consideration or payments to unaffiliated third parties for goods or services in excess of $2,000,000 per year or $5,000,000 in the aggregate;

(xii) any Contract that requires the Diamond Business to pay any commission, finder’s fee, royalty or similar payment of more than $2,000,000 annually, other than in the Ordinary Course of Business (including relating to employee recruitment), in each case other than any placement agent or similar agreement;

(xiii) any Contract that obligates the Diamond Business to pay any earn-out or other similar deferred consideration in connection with an acquisition in excess of $5,000,000;

(xiv) any collective bargaining agreement or other Contract with any labor union, labor organization, works council or other employee representative (each a “CBA”); and

(xv) any fee or engagement letter or other similar Contract as it relates to the provision of services by a financial advisor that would result in any payments being due to a financial advisor in connection with this Agreement and the transactions contemplated by this Agreement or as to which there are any ongoing material obligations.

 

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Notwithstanding the foregoing provisions of this Section 3.10(a), “Diamond Material Contracts” shall not include (x) Contracts of Diamond Funds, or entities formed to hold portfolio investments, with respect to the acquisition, ownership, servicing or disposition of portfolio investments by Diamond Funds and/or such entities, (y) any Contracts with respect to any portfolio investment, including any Governing Documents of any portfolio investment, or (z) Contracts that solely relate to Excluded Diamond Assets or direct or indirect investments held, made, advised or managed by Excluded Diamond Assets.

(b) All of the Diamond Material Contracts are valid, binding, and enforceable, and in full force and effect in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights generally and to general principles of equity, except as will not result in a material loss to the Diamond Transferred Companies, taken as a whole. The Nephrite Group, solely to the extent related to the Diamond Business, has performed all material obligations required to be performed by it and is not in material default under or material breach of, nor in receipt of any claim of such default under or breach of, any Diamond Material Contract. To the Knowledge of Nephrite, no event has occurred that (with the passage of time or the giving of notice or both) would result in a material default under or material breach of, or permit the termination, modification, or acceleration of any material obligation under, any Diamond Material Contract. To the Knowledge of Nephrite, there are no oral Diamond Material Contracts. Nephrite has made available or delivered to Opal Group and the Buyer true and correct copies of all Diamond Material Contracts.

Section 3.11 Intellectual Property Rights. As of the date of this Agreement, except as set forth on Section 3.11 of the Diamond Disclosure Letter:

(a) Section 3.11(a) of the Diamond Disclosure Letter sets forth a true, correct and complete list of all Owned Intellectual Property that is registered, issued or subject of a pending application, in each case, solely to the extent related to the Diamond Business. All of the material registrations, issuances and applications set forth on Section 3.11(a) of the Diamond Disclosure Letter are valid, in full force and effect and have not expired or been cancelled, abandoned or otherwise terminated, and payment of all renewal and maintenance fees and expenses in respect thereof, and all filings related thereto, have been duly made.

(b) As of the date of this Agreement, the Nephrite Group (x) exclusively owns and possesses (free and clear of all Liens, except for Permitted Liens) the entire right, title and interest in and to, or has a valid, enforceable, and sufficient license to use, all Intellectual Property Rights used in or necessary for the conduct of the Diamond Business as presently conducted, (y) has the exclusive right (to the extent afforded by applicable Intellectual Property Rights Laws) to use the Diamond Track Record, and (z) has not granted any Person the right to use, and no other Person has the right to use the Diamond Track Record. As of immediately following the completion of the Diamond Reorganization, the Diamond Transferred Companies (x) shall exclusively own and possess (free and clear of all Liens, except for Permitted Liens) the entire right, title and interest in and to, or shall have a valid, enforceable, and sufficient license to use, all Intellectual Property Rights used in or necessary for the conduct of the Diamond Business as

 

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presently conducted, (y) shall have the exclusive right (to the extent afforded by applicable Intellectual Property Rights Laws) to use the Diamond Track Record, and (z) shall not have granted any Person the right to use, and no other Person has the right to use, the Diamond Track Record.

(c) As of the date of this Agreement, except as set forth on Section 3.11(c) of the Diamond Disclosure Letter, as of the date of this Agreement, (i) there are no (and, since January 1, 2018, there have not been any) Proceedings pending or threatened in writing against the Nephrite Group (solely to the extent related to the Diamond Business) asserting (A) any invalidity or unenforceability of, or challenging the ownership or scope of, any material Intellectual Property Rights included in the Diamond Assets or (B) any infringement, dilution, or misappropriation by the Nephrite Group (solely to the extent related to the Diamond Business) of the Intellectual Property Rights of any Person in the conduct of the Diamond Business, (ii) except as would not reasonably be expected to result in material Liability to the Diamond Business, taken as a whole, since January 1, 2018, the conduct of the Diamond Business has not infringed, misappropriated or diluted any Intellectual Property Rights of any other Person, and (iii) to the Knowledge of Nephrite, the Intellectual Property Rights included in the Diamond Assets have not been infringed, misappropriated or diluted by any other Person in any material respect.

(d) As of the date of this Agreement, except as would not reasonably be expected to materially impair the operation of the Diamond Business, taken as a whole, the Nephrite Group (solely to the extent related to the Diamond Business) has implemented policies and procedures reasonably designed to protect the confidentiality and value of any trade secrets that are included in the Diamond Assets or in the possession of the Diamond Transferred Companies, and to the Knowledge of Nephrite, such trade secrets have not been disclosed to any Person except pursuant to appropriate non-disclosure obligations.

(e) As of the date of this Agreement, except as would not reasonably be expected to materially impair the operation of the Diamond Business, taken as a whole, the Nephrite Group (solely to the extent related to the Diamond Business) has obtained from Diamond Business Employees and other employees of the Nephrite Group who have in the past been part of the Diamond Business who have contributed to the creation or development of any material Intellectual Property Rights for the Diamond Business, written agreements containing assignment to the Nephrite Group of all such Intellectual Property Rights.

Section 3.12 Data Security; Data Privacy.

(a) The Nephrite Group has established and implemented written policies, notices, records, logs and procedures and organizational, physical, administrative, and technical measures regarding privacy, cybersecurity, and data security covering the Diamond Business (collectively, the “Diamond Privacy and Security Policies”) that (i) are consistent in all material respects with all applicable Data Protection Laws and (ii) are appropriate to protect Personal Information and other data relating to the Diamond Business against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.

(b) The Nephrite Group has, where required by Data Protection Laws, entered into Contracts with its service providers and other material business relationships that meet the requirements of Data Protection Laws applicable to the Diamond Business.

 

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(c) The Nephrite Group (solely to the extent related to the Diamond Business) has materially aligned its cybersecurity practices applicable to the Diamond Business with relevant generally-applicable industry standards and carries out regular external and/or internal penetration tests and vulnerability assessments of its information technology systems and business environment designed to identify any cybersecurity threats and has remediated any and all material identified vulnerabilities.

(d) The Nephrite Group (solely to the extent related to the Diamond Business) has at all times complied with all of the Diamond Privacy and Security Policies in all material respects.

(e) In the past three (3) years, the Diamond Business has not: (i) suffered any actual or suspected material unauthorized access to Personal Information or cybersecurity incident; (ii) received any notices or requests from, or to the Knowledge of Nephrite, been subject to any investigations by, any Governmental Entity or other regulatory authority in relation to its Processing activities and compliance with Data Protection Laws; or (iii) received notice from individuals alleging non-compliance with Data Protection Laws.

Section 3.13 Litigation. Except as set forth on Section 3.13 of the Diamond Disclosure Letter or in respect of the Diamond Funds, there are no (and since January 1, 2018, there have not been any) Proceedings (i) seeking to revoke, reconsider the grant of, cancel, suspend or modify, or declare invalid any of the Permits necessary for the operation of the Diamond Business, (ii) pending or, to the Knowledge of Nephrite, threatened against any Diamond Transferred Company or the Nephrite Group (solely to the extent relating to the Diamond Business), at law or in equity, or before or by any Governmental Entity, including any Proceedings that seek to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated by this Agreement or by the Ancillary Agreements or (iii) any material Orders from any Governmental Entity with respect to the Diamond Business and the Nephrite Group has not been notified by any Governmental Entity in writing to the effect that such Governmental Entity is contemplating issuing or requesting any such material Order with respect to the Diamond Business, in each case, except as has not had or would not reasonably be expected to result in a Diamond Material Adverse Effect.

Section 3.14 Brokerage. Except as set forth on Section 3.14 of the Diamond Disclosure Letter, the Diamond Business does not have any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated by this Agreement or thereby, that would result in the obligation of the Diamond Business, any Diamond Transferred Company or any Party to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

Section 3.15 Labor Matters.

(a) To the extent permitted by applicable Law, Section 3.15(a) of the Diamond Disclosure Letter contains a complete and accurate list, setting forth the employee identification number of each Diamond Business Employee as of the date of this Agreement, including the following information: (i) job title; (ii) date of hire; (iii) full-time or part-time status; (iv) exempt or non-exempt classification; (v) work location; (vi) leave status (including type of leave, start date and anticipated return date (if known)); (vii) work authorization or permit details (including type

 

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of work authorization or permit, dates of validity, and sponsoring entity); (viii) accrued, but unused, paid-time-off; and (ix) employing entity), which list Nephrite shall update on the Closing Date. In addition, Nephrite has previously provided to the Opal Family’s senior management team, with regard to each Diamond Business Employee, (x) base annual salary or hourly wage rate (as applicable) and (y) any estimated or target annual incentive compensation, including bonus or commission opportunity. The Diamond Business Employees set forth on Section 3.15(a) of the Diamond Disclosure Letter have primarily or exclusively provided services to the Diamond Business during the past 12 months (or such shorter period of time in which the individual was employed by the Nephrite Group) and are sufficient in number and skill to operate the Diamond Business immediately after the Closing in substantially the same manner as it was conducted immediately prior to the Closing.

(b) None of the Diamond Transferred Companies or the Nephrite Group (solely with respect to the Diamond Business and the Diamond Business Employees) is party to or bound by any CBA or bargaining relationship with any labor union, works council, labor organization or employee representative and no Diamond Business Employees are represented by a labor union, works council, labor organization or employee representative with respect to their employment with the Diamond Business. To the Knowledge of Nephrite, no union organizing activities are underway or threatened with respect to Diamond Business Employees and no such activities have occurred since January 1, 2018 with respect to any employees providing services to the Diamond Business. There are no strikes, walkouts, work stoppages or slowdowns, lockouts, picketing, or other material labor disputes pending or, to the Knowledge of Nephrite, threatened against or affecting any Diamond Transferred Company or the Nephrite Group (solely with respect to the Diamond Business or the Diamond Business Employees), and no such disputes have occurred since January 1, 2018.

(c) The Diamond Transferred Companies and the Nephrite Group (solely with respect to the Diamond Business and the Diamond Business Employees) are, and since January 1, 2016 have been, in compliance in all material respects with all applicable Laws respecting labor, employment, and employment practices, including all applicable Laws respecting wages and hours, collective bargaining and other protected concerted activity, labor relations, employment discrimination, equal opportunity, safety and health, COVID-19, harassment and retaliation, paid time off, employee leave, disability rights and benefits, whistleblowers, immigration status, layoffs and reductions in force, workers’ compensation, and the payment and withholding of employment-related Taxes. Except as would not result in a material Liability for any Diamond Transferred Company or the Diamond Business, each of the Diamond Transferred Companies and the Nephrite Group (solely with respect to Diamond Business Employees, former employees who provided services to the Diamond Business, and individual service providers currently providing or who previously provided services to the Diamond Business) has fully and timely paid all wages, salaries, bonuses, commissions, wage premiums, fees, expense reimbursements, severance, and other compensation that have come due and payable to past and current employees and independent contractors providing services to the Diamond Business pursuant to any Law, Contract, or policy of the Nephrite Group.

 

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(d) As of the date of this Agreement, except as has not been, and would not reasonably be expected to be, material to the Diamond Transferred Companies, taken as a whole, (i) since January 1, 2018 there have been no charges, complaints, audits or investigations pending before any Governmental Entity pertaining to the employment practices or actions of the Diamond Transferred Companies or the Nephrite Group (solely with respect to the Diamond Business and the Diamond Business Employees), to the Knowledge of Nephrite, threatened against the Diamond Transferred Companies or the Nephrite Group (solely with respect to the Diamond Business and the Diamond Business Employees); and (ii) none of the Diamond Transferred Companies has any material liability with respect to misclassification of any employee as an independent contractor or contingent worker rather than as an “employee.”

(e) Neither the Diamond Transferred Companies nor the Nephrite Group (solely with respect to the Diamond Business and the Diamond Business Employees) have, in the past three (3) years, implemented any office closing or mass layoff triggering notice under the WARN Act.

(f) No individual who is currently providing services to the Diamond Business through a third-party service provider is an employee of the Diamond Business. The Diamond Transferred Companies do not have a single employer, joint employer, alter ego or similar relationship with any independent, third-party company.

(g) To the Knowledge of Nephrite, no Diamond Business Employee or current or former employee of the Nephrite Group (solely with respect to the Diamond Business) or the Diamond Transferred Companies is in material violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Nephrite Group or any Diamond Transferred Company or (ii) to a former employer of any such employee relating (A) to the right of any such employee to be employed by the Nephrite Group or any Diamond Transferred Company or (B) to the Knowledge or use of trade secrets or proprietary information.

(h) To the Knowledge of Nephrite, since January 1, 2018, no Diamond Business Employee has been the subject of any formal claim of sexual harassment, sexual misconduct or sexual assault during his or her tenure at the Diamond Transferred Companies or the Nephrite Group, and neither the Diamond Transferred Companies nor the Nephrite Group (solely with respect to any Diamond Business Employee) has entered into any settlement agreement or confidentiality agreement relating to allegations of sexual harassment, sexual misconduct or sexual assault.

(i) To the Knowledge of Nephrite, as of the date of this Agreement, no Diamond Business Employee intends to terminate his or her employment with the Nephrite Group (other than in connection with the consummation of the transactions contemplated by this Agreement as a result of becoming an employee of the Buyer or its designated Subsidiary upon the Closing) nor has any present intention of declining such Diamond Business Employee’s offer to become an employee of the Buyer or its designated Subsidiary upon the Closing.

 

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Section 3.16 Employee Benefits.

(a) Section 3.16(a) of the Diamond Disclosure Letter sets forth an accurate and complete list of each material Diamond Employee Benefit Plan (and denotes whether such plan is a Diamond Affiliate Employee Benefit Plan). Nephrite has made available to Opal Group and the Buyer, to the extent applicable, with respect to each material Diamond Employee Benefit Plan (other than any Diamond Affiliate Employee Benefit Plan) complete and correct copies of (i) the written document and, if applicable, the summary plan description (and summaries of material modifications thereto) evidencing such plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments or material supplements to any such plan, (ii) the annual report (Form 5500), if any, filed with the Internal Revenue Service (the “IRS”) for the last plan year, and the most recently received IRS determination or opinion letter, (iii) any material correspondence in the last year to or from the IRS, the U.S. Department of Labor, the U.S. Pension Benefit Guaranty Corporation or any other Governmental Entity and (iv) any related trust agreements, insurance contracts or documents of any other funding arrangements relating to such plan. With respect to each material Diamond Affiliate Benefit Plan, Nephrite has made available to Opal Group and the Buyer complete and correct copies of: (i) the most recent summary plan description and all summaries of material modifications thereto or, if such plan is not written, a written summary of the plan’s material terms and (ii) a copy of the most recently received IRS determination or opinion letter. Each Diamond Employee Benefit Plan (and each related trust, insurance contract, or fund) has been established, maintained, in form and operation, funded and administered, in all material respects, in accordance with its terms and in compliance with all applicable requirements of ERISA, the Code and other applicable Laws. With respect to each Diamond Employee Benefit Plan, all premiums, contributions, reimbursements, accruals, or other payments (including all employer contributions and employee salary reduction contributions) that are due have been made on a timely basis and amounts not yet due have been accrued to the extent required under GAAP.

(b) Each Diamond Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to such Employee Benefit Plan’s qualified status, and to the Knowledge of Nephrite nothing has occurred that could reasonably be expected to adversely affect such Diamond Employee Benefit Plan’s qualification. There are no Proceedings pending or to the Knowledge of Nephrite threatened, (other than routine claims for benefits) with respect to any Diamond Employee Benefit Plan. The Diamond Business has not incurred (whether or not assessed) any Tax or penalty under Section 4980B, 4980H, 4980D, 6721 or 6722 of the Code.

(c) None of the Diamond Transferred Companies maintain, sponsor, contribute to, have not contributed in the last six (6) years to, have not had any obligation to contribute to or have not had and do not have any Liability, including on account of any other Person that is or (at a relevant time) was treated as a single employer with any Diamond Transferred Company under Code Section 414 under or with respect to (i) any “defined benefit plan” as defined in Section 3(35) of ERISA or any other plan that is or was subject to Code Sections 412 or 430 or Title IV of ERISA, (ii) any “multiemployer plan” as defined in Section 3(37) of ERISA, (iii) any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or “multiple employer plan” to which Code Section 413(c) applies, or (iv) any benefit plan, program, or arrangement that provides for post-retirement or post-termination medical, life insurance, or other welfare-type benefits (except as required by Code Section 4980B or any similar applicable state Law for which the recipient pays the full premium cost).

 

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(d) None of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements (either alone or in combination with any termination of employment or status as employee, officer, director or independent contractor) could (i) entitle any current or former Diamond Business Employee or any director or independent contractor of the Diamond Business to severance pay or any material increase in severance pay or any other material compensation or benefits, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any current or former Diamond Business Employee or any director or independent contractor of the Diamond Business, (iii) directly or indirectly cause the Nephrite Group to transfer or set aside any assets to fund any material benefits under any Diamond Employee Benefit Plan, or (iv) otherwise give rise to any material Liability under any Diamond Employee Benefit Plan, in each such case which would not have occurred absent execution and delivery of this Agreement and consummation of the transactions contemplated by this Agreement.

(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement would be reasonably likely, either alone or in combination with another event, result in the payment of any amount that would reasonably be expected, individually or in combination with any other payment, to constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code. No Diamond Transferred Company is party to any Contract or otherwise has any obligation to provide, and no Diamond Employee Benefit Plan or other agreement provides any individual with the right to, a gross-up, indemnification, reimbursement, or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code. With respect to any Diamond Employee Benefit Plan, no Diamond Transferred Company has engaged in a transaction in connection with which any Diamond Transferred Company reasonably would be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.

(f) Without limiting the generality of the other provisions of this Section 3.16, with respect to each Diamond Employee Benefit Plan that is subject to the Laws of a jurisdiction other than the United States (whether or not United States Law also applies) (a “Foreign Diamond Plan”): (i) all employer and employee contributions to each Foreign Diamond Plan required by Law or by the terms of such Foreign Diamond Plan have been timely made, or, if applicable, accrued in accordance with normal accounting practices; (ii) each Foreign Diamond Plan required to be registered has been registered and has been maintained in good standing with applicable regulatory authorities; (iii) no Foreign Diamond Plan is a defined benefit plan (as defined in ERISA, whether or not subject to ERISA); and (iv) no unfunded or underfunded Liabilities exist with respect to any Foreign Diamond Plan.

Section 3.17 Compliance with Laws; Permits. Except as set forth on Section 3.17 of the Diamond Disclosure Letter:

(a) Except as would not reasonably be expected to materially impair the operations of the Diamond Business, taken as a whole, or result in a Liability that is material to the Diamond Business, taken as a whole, (i) the Nephrite Group (solely to the extent related to the Diamond Business) and the Diamond Business and each Diamond Transferred Company are (and since January 1, 2016, have been) in compliance with all applicable Laws, and (ii) as of the date of this Agreement, no written notices have been received by, and, to the Knowledge of Nephrite, no oral notices have been received by and no Proceedings have been filed against the Nephrite Group (solely to the extent related to the Diamond Business) or any Diamond Transferred Company alleging a violation of any such Laws.

 

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(b) Neither the Nephrite Group (solely to the extent related to the Diamond Business), any Diamond Transferred Company nor any Diamond Business Employee or former employee who provided services to the Diamond Business, is, or at any time since January 1, 2016, has been, (i) subject to any cease and desist, censure or other disciplinary or similar order issued by, (ii) a party to any settlement agreement, consent agreement, memorandum of understanding or disciplinary agreement with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by or (v) a recipient of any supervisory letter from, in each case, any Governmental Entity, and none of them is threatened with the imposition or receipt of any of the foregoing.

(c) To the extent required by applicable Law, the Nephrite Group has adopted, and maintained, customary “know-your-customer” and anti-money laundering programs and reporting procedures covering the Diamond Business, and have complied in all material respects with the terms of such programs and procedures for detecting and identifying money laundering with respect to the Diamond Business. To the extent applicable, the subscription agreement that an investor executes prior to being admitted to any Diamond Fund contains customary representations and warranties (which representations and warranties are customary as of the date of execution) that such investor is not a Sanctioned Person.

(d) No member of the Nephrite Group (solely to the extent related to the Diamond Business) nor, to the Knowledge of Nephrite, any Diamond Business Employee: (i) has ever been indicted for or convicted of any felony or any crime involving fraud, misrepresentation or insider trading or (ii) (A) is subject to any outstanding order barring, suspending or otherwise materially limiting the right of any such individual to engage in any activity conducted as part of the Diamond Business as currently conducted, or (B) has any reasonable basis to believe that such Persons are the subject of any ongoing investigation by any Governmental Entity.

(e) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to any Diamond Transferred Company or Diamond Fund or, with respect to any Diamond Transferred Company or Diamond Fund as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1), except for a Disqualification Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable.

(f) As of the Closing, the Nephrite Group (solely to the extent related to the Diamond Business) or the applicable Diamond Fund, as applicable, owns or possesses all right, title, and interest in and to each of its respective Permits issued or granted by any Governmental Entity and has complied and is in compliance in all material respects with all Permits required for ownership of the properties and assets and the conduct and operation of the Diamond Business as presently conducted, and no notices have been received by the Diamond Business alleging the failure to hold any of the foregoing. The Diamond Business has obtained all Permits required for the conduct and operation of such Diamond Business in the jurisdictions in which it operates, except as would not reasonably be expected to materially impair the operation of the Diamond

 

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Business. Except as set forth on Section 3.17(f) of the Diamond Disclosure Letter, all of such Permits will be held by a Diamond Transferred Company or a Diamond Fund as of immediately following the Diamond Reorganization. To the Knowledge of Nephrite, except as would not reasonably be expected to materially impair the operation of the Diamond Business, taken as a whole, or result in material Liability to the Diamond Business, taken as a whole, each Diamond Business Employee who is required to be registered or licensed as a registered representative, investment adviser representative, salesperson, broker-dealer, or an equivalent person with any Governmental Entity in connection with activities conducted in their employment in respect of the Diamond Business is duly registered or licensed as such and such registration or license is in full force and effect.

(g) Except as would not reasonably be expected to materially impair the operations of the Diamond Business, taken as a whole, or result in a Liability that is material to the Diamond Business, taken as a whole, all Permits required for each Diamond Fund to conduct its business as currently conducted, for the ownership and use of its properties or assets or that are required for its employees, if any, to perform the services, duties, and responsibilities performed by or on behalf of such Diamond Fund in connection with its business have been obtained by it. Except as would not reasonably be expected to materially impair the operations of the Diamond Business, taken as a whole, or result in a Liability that is material to the Diamond Business, taken as a whole, all such Permits are valid and in full force and effect, no material default or violation exists thereunder.

(h) Since January 1, 2016, each Diamond Fund has filed (after giving effect to any extensions) with the SEC all material forms, documents, and reports required to be filed or furnished prior to the date of this Agreement by it with the SEC. Each such form or report, as of the time of its filing or, if applicable, as of the time of its most recent amendment, complied in all material respects with, to the extent in effect at such time, the requirements of the Securities Act and the Securities Exchange Act applicable to such form or report, and no such form or report when filed or, if amended, as of the date of such most recent amendment, 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. Each Diamond Fund has issued its outstanding equity interests pursuant to an effective registration statement under the Securities Act (or an applicable exemption therefrom).

(i) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Diamond Material Adverse Effect, to the Knowledge of Nephrite, there are no unresolved issues with the SEC with respect to the Diamond Business or any Diamond Transferred Company.

(j) As of the date hereof, neither the Diamond RIA Subsidiary (solely to the extent related to the Diamond Business) nor any Diamond Transferred Company is subject to, and has not received any written notice of, an examination, inspection, investigation or inquiry by a Governmental Entity, and, to the Knowledge of Nephrite, no such examination, inspection, investigation or inquiry has been started or completed for which no examination report is available.

 

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(k) Neither the Diamond RIA Subsidiary (solely to the extent related to the Diamond Business) nor any Diamond Transferred Company is prohibited from charging fees to any Person pursuant to Rule 206(4)-5 under the Investment Advisers Act or any similar “pay-to-play” rule or requirement, except as would not reasonably be expected to materially impair the operations of the Diamond Business, taken as a whole, or result in a Liability that is material to the Diamond Business, taken as a whole.

Section 3.18 Anti-Bribery; Anti-Corruption. The Diamond Business is, and has been at all times since January 1, 2016, in material compliance with all applicable Anti-Corruption Laws. Since January 1, 2016, the Nephrite Group has instituted policies and procedures covering the Diamond Business reasonably designed to ensure the Diamond Business’ compliance with all applicable Anti-Corruption Laws with respect to the Diamond Business and maintains such policies and procedures in effect. Since January 1, 2016, neither the Nephrite Group, the Diamond Funds, nor, to the Knowledge of Nephrite, any of their respective agents (in each case, solely to the extent related to the Diamond Business) has, directly or indirectly, in furtherance of or in connection with the business of such entity: (i) offered, promised, given, authorized, or agreed to give any financial or other advantage or inducement to any Person with the intention of influencing (A) any representative of any foreign, federal, state, or local Governmental Entity, including any representative of a state-owned entity or a public organization, in the performance of his or her public functions or (B) any other Person (whether or not such Person is the recipient of the advantage or inducement) to perform his, her, or its function improperly, or where the acceptance of such advantage or inducement would itself be unlawful; (ii) requested, agreed to receive, or accepted any financial or other advantage or inducement where such request, agreement to receive, or acceptance would be unlawful; (iii) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expenses relating to political activity; (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee; or (v) otherwise taken any action that would constitute a violation of any Anti-Corruption Laws. Since January 1, 2016, no member of the Nephrite Group (solely to the extent related to the Diamond Business) has received from any Governmental Entity or any other Person any written notice, inquiry, or allegation, made any voluntary or involuntary disclosure to a Governmental Entity, or conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing related to applicable Anti-Corruption Laws or policies and procedures designed to ensure compliance therewith.

Section 3.19 Anti-Money Laundering; Sanctions; Customs & Trade Laws.

(a) Except as would not reasonably be expected to materially impair the operations of the Diamond Business, taken as a whole, or result in a Liability that is material to the Diamond Business, taken as a whole, since January 1, 2016, neither the Nephrite Group, the Diamond Funds, nor, to the Knowledge of Nephrite, any other Person acting for or on behalf of any of the foregoing (in each case, solely to the extent related to the Diamond Business) (i) has been or is currently a Sanctioned Person or Restricted Person; (ii) has engaged or is currently engaging in any business or other dealings with or involving (A) any Sanctioned Country or (B) any Sanctioned Person or Restricted Person, in each case in violation of applicable Sanctions or Customs & Trade Laws; (iii) has failed to conduct its import, export, and reexport transactions and any other transfers in accordance with all applicable Customs & Trade Laws; or (iv) has otherwise been in violation of applicable Anti-Money Laundering Laws, Sanctions, or Customs & Trade Laws.

 

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(b) Since January 1, 2016, and prior to the date of this Agreement, neither the Nephrite Group nor the Diamond Funds has received from any Governmental Entity or any other Person (in each case, solely to the extent related to the Diamond Business) any written or oral notice, inquiry, or allegation; made any voluntary or involuntary disclosure to a Governmental Entity; or conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing related to applicable Anti-Money Laundering Laws, Sanctions, or Customs & Trade Laws.

(c) Since January 1, 2016, the Nephrite Group and the Diamond Funds have each had in place controls and systems reasonably designed to ensure compliance by the Diamond Business with applicable Anti-Money Laundering Laws, Sanctions, and Customs & Trade Laws.

Section 3.20 Real Property.

(a) The Diamond Transferred Companies neither own nor have ever owned any real property.

(b) Section 3.20(b)(i) of the Diamond Disclosure Letter sets forth a true and complete list of all Leases for each Leased Real Property and the address of each Leased Real Property that is used by the Diamond Business. Except as set forth on Section 3.20(b)(ii) of the Diamond Disclosure Letter, except as would not reasonably be expected to materially impair the operations of the Diamond Business, taken as a whole, or result in a Liability that is material to the Diamond Business, taken as a whole, with respect to each of the Leases: (i) such Lease is legal, valid, binding, enforceable, and in full force and effect; and (ii) the Nephrite Group (solely to the extent related to the Diamond Business) is not in breach or default under such Lease, and to the Knowledge of Nephrite, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time, or both, would constitute such a breach or default, or permit the termination, modification, or acceleration of rent under such Lease.

Section 3.21 Environmental. Except as set forth on Section 3.21 of the Diamond Disclosure Letter: (a) the Diamond Business is, and since January 1, 2018, has been, in compliance in all material respects with all Environmental Laws, including with respect to all Permits required pursuant to Environmental Laws for their occupancy of their owned, leased, or operated real property (including the Leased Real Property) or their operation of their business; (b) the Nephrite Group (solely to the extent related to the Diamond Business) has not received any written notice, which remains unresolved, regarding any material Liabilities, any material violation, or any material corrective, investigatory, or remedial obligations, of any Diamond Transferred Company relating to Environmental Laws; (c) the Diamond Business has not treated, stored, disposed or arranged for the disposal of, handled, transported, released, or exposed any Person to any Hazardous Substances, and no real property currently or formerly owned, leased, or operated by any Diamond Transferred Company (including the Leased Real Property) is or has been contaminated by any Hazardous Substances, in each case in such concentrations or manner as has given or would give rise to any unresolved material violation by, or unresolved material Liabilities or unresolved material corrective, investigatory, or remedial obligations of, the Nephrite Group

 

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(solely to the extent related to the Diamond Business) under Environmental Laws; and (d) the Diamond Business is not subject to any Orders or has by contract or operation of law assumed, undertaken, or provided an indemnity with respect to the material Liabilities of any other Person relating to any Environmental Laws or Hazardous Substances.

Section 3.22 Affiliate Transactions. Except as set forth on Section 3.22 of the Diamond Disclosure Letter, none of the Nephrite Group nor any of the Diamond Principals, nor any director, officer or employee of the Nephrite Group, nor any individual related by blood, marriage, or adoption to any such individual nor any Affiliates of any such Person (other than a Diamond Transferred Company or a Diamond Fund), is or has been a party to any material agreement, contract, commitment, or transaction with any Diamond Transferred Company or any other entity in the Nephrite Group (solely to the extent related to the Diamond Business) or has any right, title, or interest in any property owned or used by any Diamond Transferred Company (including any Intellectual Property Rights).

Section 3.23 Investment Advisory Services. Except on behalf of the Diamond RIA Subsidiary or any relying advisers in respect thereof, no Diamond Principal provides, and no Diamond Principal has, since January 1, 2018, provided, Investment Advisory Services to any investment vehicle, company, fund or account, or other Person. Other than to the Diamond Funds and any co-investment vehicles with respect thereto, none of the Diamond Transferred Companies provide, and have not since January 1, 2018, provided, Investment Advisory Services to any investment vehicle, company, fund or account, or other Person.

Section 3.24 Insurance. As of the date of this Agreement, the Nephrite Group maintains property, casualty, workers compensation, professional lines, fidelity, cyber and other insurance with insurance carriers against operational risks and risks to the assets, properties, and employees of the Diamond Business with respect to the policy year that includes the date of this Agreement (collectively, “Diamond Insurance Plans”). Except as would not reasonably be expected to materially impair the operations of the Diamond Business, taken as a whole, or result in a Liability that is material to the Diamond Business, taken as a whole, all such Diamond Insurance Plans and arrangements are, as of the date of this Agreement, in full force and effect, all premiums due and payable thereunder have been paid, and no notice of cancellation or termination has been received with respect to any such policy and, to the Knowledge of Nephrite, there exists no event, occurrence, condition or act (including the transactions contemplated by this Agreement) that, with the giving of notice, the lapse of time or the happening of any other event or condition, would entitle any insurer to terminate or cancel any such policies.

Section 3.25 Regulatory Compliance.

(a) None of the Nephrite Group (solely to the extent related to the Diamond Business) nor, to the Knowledge of Nephrite, any officer, director, or employee thereof, nor any other “affiliated person” (as defined in the Investment Company Act) thereof, is ineligible pursuant to Section 9(a) or 9(b) of the Investment Company Act to serve in any capacity referred to in Section 9(a) thereof to a registered investment company; and none of the Nephrite Group (solely to the extent related to the Diamond Business) nor, to the Knowledge of Nephrite, any person “associated” (as defined in the Investment Advisers Act) therewith who is required to be qualified, is subject to potential disqualification pursuant to Section 203 of the Investment Advisers Act to

 

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serve as an investment adviser or as a person associated with a registered investment adviser or subject to disqualification under Rule 206(4)-3 under the Investment Advisers Act; in each case, except for any such disqualification with respect to which the Diamond Business or another relevant Person has received exemptive relief from the SEC or another relevant Governmental Entity; nor is there any proceeding or investigation pending or, to the Knowledge of Nephrite, threatened by any Governmental Entity that would result in any such disqualification.

(b) Except as set forth on Section 3.25(b) of the Diamond Disclosure Letter, as of the date of this Agreement, (i) no exemptive Orders, “no-action” letters, or similar exemptions or regulatory relief have been obtained and (ii) except as are not material to the Diamond Business, taken as a whole, no requests are pending therefor by the Diamond Business or, to the Knowledge of Nephrite, any Diamond Fund, excluding in each case ordinary course correspondence with the SEC or correspondence otherwise publicly filed within the SEC.

(c) The Diamond RIA Subsidiary (solely to the extent related to the Diamond Business) and each Diamond Transferred Company has been and is in material compliance with the Investment Advisers Act and the rules and regulations promulgated thereunder, and to the extent required to be registered as an investment adviser under the Investment Advisers Act, such registration has been and is in full force and effect and, to the Knowledge of Nephrite, there is no basis for any disqualification, denial, suspension, or revocation thereof. No Diamond Transferred Company (i) is or has been an “investment adviser” required to register under the Investment Advisers Act or any other applicable Laws to be licensed or qualified as an investment adviser or (ii) is subject to any material Liability by reason of any failure to be so registered, licensed, or qualified.

(d) The Diamond RIA Subsidiary has adopted (i) a written policy regarding insider trading, (ii) a written code of ethics, as required by Rule 204A-1 under the Investment Advisers Act and, to the extent required, Rule 17j-1 under the Investment Company Act and (iii) insider trading policies, personal trading policies, and such other policies and procedures as are reasonably required in order to comply with Rule 206(4)-7 under the Investment Advisers Act, and have designated and approved an appropriate chief compliance officer in accordance with Rule 206(4)-7. Such code of ethics and insider trading, personal trading and other policies and procedures are reasonably designed to prevent violation, by the Diamond Business and their “supervised persons” (as defined in the Investment Advisers Act), of the Investment Advisers Act and the rules promulgated thereunder. To the Knowledge of Nephrite, since January 1, 2018, there have been no material violations of the code of ethics, insider trading policies, personal trading policies and other material policies of the Nephrite Group (solely to the extent related to the Diamond Business).

(e) Other than as would not result in a breach of applicable Law, neither the Diamond Business nor any Diamond Business Employee (i) is a broker, dealer, broker-dealer, bank, trust company, commodity broker-dealer, commodity trading advisor, real estate broker, insurance company, insurance broker, transfer agent or similar type of entity within the meaning of any applicable Law, or, since January 1, 2018, has acted as such in connection with any offers, sales, or distributions of securities in connection with the Diamond Business, nor (ii) is required to be registered, licensed, or qualified as a bank, trust company, broker, dealer, introducing broker, commodity dealer, futures commission merchant, commodity pool operator, commodity trading

 

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advisor, real estate broker, insurance company, insurance broker, transfer agent, swaps firm, swap dealer, security-based swap dealer, major swap participant, major security-based swap participant, transfer agent, registered representative, principal, registered principal, associated person, swaps associated person, or sales person (or in a similar capacity) under the Exchange Act or other applicable Law. No Diamond Transferred Company is, or has ever been, (x) registered as or required to register as a broker-dealer under the Exchange Act or any similar state securities law, or is a member of FINRA or (y) required to be licensed or registered in any jurisdiction outside of the United States of America, or to be registered with the Commodity Futures Trading Commission and/or a member of the National Futures Association.

(f) Since January 1, 2018, Diamond RIA Subsidiary and each Diamond Transferred Company has (i) performed its investment management, advisory, and related duties and responsibilities in compliance, in all material respects with, and otherwise consistent with the Diamond Fund Documentation and Client Contracts applicable to such Clients and (ii) not received any written communication from any Person regarding any actual or alleged failure to perform investment management, advisory, and related duties and responsibilities in compliance with such agreements.

(g) Neither the Diamond Business nor any Diamond Business Employee is subject to a disqualification that would be a basis, following the Business Combination, for any limitations on the activities, functions, or operations of, or suspension or termination of the Investment Advisory Services provided by an Opal Transferred Company to any BDCs.

Section 3.26 Diamond 40 Act Funds. No Diamond Transferred Company provides Investment Advisory Services to any 40 Act Funds.

Section 3.27 Information Supplied. The information supplied or to be supplied, in each case, in writing, by Nephrite with respect to Nephrite and the Diamond Business expressly for inclusion in the Registration Statement and the Proxy Statement/Prospectus, any other document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available and (b) (i) in the case of the Registration Statement, at the time the Registration Statement is declared effective under the Securities Act and (ii) in the case of the Proxy Statement/Prospectus, at the time the Proxy Statement/Prospectus (or any amendment thereof or supplement thereto) is first mailed to the Buyer Stockholders, or at the time of the Buyer Stockholder Meeting (in each case, subject to the qualifications and limitations set forth in the materials provided by Nephrite or that are included in such filings and/or mailings), except that, in each case, no warranty or representation is made by Nephrite with respect to: (A) statements made or incorporated by reference therein based on information supplied by the Buyer or Opal Group or their respective Affiliates for inclusion in such materials or (B) any projections or forecasts included in such materials.

 

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Section 3.28 Sufficiency of Assets. The Diamond Assets, together with services that would reasonably be provided under a customary transition services agreement, the rights and benefits provided pursuant to this Agreement and such services and other resources that are generally available, include substantially all the assets and properties used or employed in the business presently conducted by the Diamond Business, as of the date hereof, except as would not reasonably be expected to have a Diamond Material Adverse Effect. Subject to Section 2.15 and except as contemplated by Section 10.1, immediately after the consummation of the transactions contemplated by this Agreement to be effected at the Closing, after giving effect to the Diamond Reorganization and assuming receipt of all consents necessary for the transfer of the Diamond Assets and non-termination of any contract or advisory relationship, the Diamond Transferred Companies will continue to (a) have all right, title, and interest in and to, or will have a valid right to use such Diamond Assets; and (b) have the assets and rights, of the Diamond Business (other than the Excluded Diamond Assets) immediately after the Closing Date in substantially the same manner as presently conducted by the Nephrite Group, in each case except as would not reasonably be expected to have a Diamond Material Adverse Effect.

Article IV

REPRESENTATIONS AND WARRANTIES REGARDING NEPHRITE

As an inducement to Opal Group, Opal Feeder, Opal Partners and the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, except as set forth in the applicable section of the Diamond Disclosure Letter, Nephrite represents and warrants to Opal Group, Opal Feeder, Opal Partners and the Buyer as of the date of this Agreement and as of the Closing Date (except, with respect to such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, which shall be given as of such date) as follows:

Section 4.1 Organization; Authority; Enforceability. Nephrite (a) is an entity validly existing, and in good standing under the Laws of the jurisdiction in which it is formed and (b) is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the character of its properties, or in which the transaction of its business, makes such qualification necessary, except where the failure to be so qualified and in good standing (or equivalent) would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Nephrite’s ability to consummate the transactions contemplated by this Agreement. Nephrite has the requisite legal entity power and authority to execute and deliver this Agreement and the Ancillary Agreements to which Nephrite is a party and to consummate the transactions contemplated by this Agreement and thereby. No other limited liability company or other proceedings on the part of Nephrite are necessary to approve and authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Nephrite is a party and the consummation of the transactions contemplated by this Agreement and thereby. This Agreement has been duly executed and delivered by Nephrite and constitutes the valid and binding agreement of Nephrite, enforceable against Nephrite in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. Nephrite is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

Section 4.2 Capitalization. Nephrite directly or indirectly has good and valid title to all of the issued and outstanding Equity Securities of each of the Diamond Transferred Companies, free and clear of all Liens (other than Permitted Liens).

 

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Section 4.3 No Breach.

(a) Except as required under the HSR Act, no Permit is required to be obtained or made by or with respect to Nephrite in connection with the execution, delivery, and performance of this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated by this Agreement and thereby, other than the failure of which to be obtained or made would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Nephrite to consummate the transactions contemplated by this Agreement.

(b) The execution, delivery and performance of this Agreement and each Ancillary Agreement, the consummation of the transactions contemplated by this Agreement and thereby and the fulfillment of and compliance with the respective terms of this Agreement and thereof by Nephrite do not and shall not (i) materially conflict with or result in a material breach or material violation of, (ii) constitute or result in a termination (or right of termination) or a material default under (whether with or without the passage of time, the giving of notice or both), (iii) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Nephrite or any other material assets pursuant to, (iv) create any right to payment or any other right (concurrently or with the passage of time and/or upon the occurrence of one or more events or conditions) under, or (v) result in any material change in the rights or obligations of any party under any of the following:

(i) the Governing Documents of Nephrite;

(ii) any Law to which Nephrite is subject; or

(iii) any Contract to which Nephrite is subject;

other than, in each case, as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Nephrite to consummate the transactions contemplated by this Agreement.

Section 4.4 Litigation. There are no (and there have not been any) Proceedings pending or, to the Knowledge of Nephrite, threatened against Nephrite, at law or in equity, or before or by any Governmental Entity except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Nephrite to consummate the transactions contemplated by this Agreement.

Section 4.5 Brokerage. Except as set forth on Section 4.5 of the Diamond Disclosure Letter, Nephrite will not be liable for payment of brokerage commissions, finders’ fees, or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement to which Nephrite is a party or by which Nephrite is bound.

Section 4.6 Investment Intent.

(a) Nephrite understands and acknowledges that the acquisition of Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock involves substantial risk. Nephrite can bear the economic risk of its investment (which Nephrite acknowledges may be for an indefinite period) and has such knowledge and experience in financial or business matters that Nephrite is capable of evaluating the merits and risks of its investment in Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock.

 

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(b) Nephrite is acquiring the Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock for its own account and on behalf of its Affiliates, for investment purposes only and not with a view toward, or for sale in connection with, any distribution thereof, or with any present intention of distributing or selling any Blue Owl Holdings Common Units, Blue Owl Carry Common Units or Buyer Capital Stock, in each case, in violation of the federal securities Laws, any applicable foreign or state securities Laws or any other applicable Law.

(c) Nephrite qualifies as an “accredited investor,” as such term is defined in Rule 501(a) promulgated pursuant to the Securities Act.

(d) Nephrite understands and acknowledges that the issuance, sale or resale of the Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock has not been registered under the Securities Act, any United States state securities Laws or any other applicable foreign Law. Nephrite acknowledges that such securities may not be transferred, sold, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other provision of applicable United States federal, United States state, or other Law or pursuant to an applicable exemption therefrom. Nephrite acknowledges that there is no public market for the Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock and that there can be no assurance that a public market will develop.

Section 4.7 Compliance with Laws. Nephrite is, and has been since January 1, 2018, in compliance in all material respects with Laws applicable to its ownership of Equity Securities of the Diamond Transferred Companies, and no uncured written notices have been received by Nephrite from any Governmental Entity or any other Person alleging a material violation of any such Laws as relates to such Equity Securities.

Section 4.8 No Undisclosed Agreements or Arrangements. Other than as set forth in this Agreement and the Ancillary Agreements or as otherwise described in Section 4.8 of the Diamond Disclosure Letter, as of the date of this Agreement, there are no material agreements between or among the Opal Family, the Opal Principals or the Opal Business, on the one hand, and the Nephrite Group, the Diamond Principals or the Diamond Business, on the other hand, with respect to the combination of the Diamond Business and the Opal Business or the operation of the combined businesses following the Closing.

Section 4.9 Inspections; the Buyers Representations. Nephrite is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Opal Business and the Buyer. Nephrite has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. Nephrite agrees to engage in the transactions contemplated by this Agreement based upon, and has relied solely on, its own inspection and examination of the Opal Business and the Buyer and on the accuracy of the representations and warranties set forth in Article V, Article VI, Article VII, Article VIII and any Ancillary Agreement

 

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or certificate delivered by Opal Group, Opal Feeder, Opal Partners or the Buyer pursuant to this Agreement and disclaims reliance upon any express or implied representations or warranties of any nature made by Opal Group, Opal Feeder, Opal Partners, the Buyer or their respective Affiliates or representatives, except for those set forth in Article V, Article VI, Article VII, Article VIII and in any Ancillary Agreement or certificate delivered by Opal Group, Opal Feeder, Opal Partners or the Buyer pursuant to this Agreement. Nephrite specifically acknowledges and agrees to Opal Group’s, Opal Feeder’s, Opal Partners’ and the Buyer’s disclaimer of any representations or warranties other than those set forth in Article V, Article VI, Article VII, Article VIII and in any Ancillary Agreement or certificate delivered by Opal Group, Opal Feeder, Opal Partners or the Buyer pursuant to this Agreement, whether made by either Opal Group, Opal Feeder, Opal Partners, the Buyer or any of their respective Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Nephrite and its Affiliates or representatives (including any opinion, information, projection, or advice that may have been or may be provided to Nephrite and its Affiliates or representatives by Opal Group, Opal Feeder, Opal Partners, the Buyer or any of their respective Affiliates or representatives), other than those set forth in Article V, Article VI, Article VII, Article VIII and in any Ancillary Agreement or certificate delivered by Opal Group, Opal Feeder, Opal Partners or the Buyer pursuant to this Agreement. Nephrite specifically acknowledges and agrees that, without limiting the generality of this Section 4.9, neither Opal Group, Opal Feeder, Opal Partners, the Buyer nor any of their respective Affiliates or representatives has made any representation or warranty with respect to any projections or other future forecasts. Nephrite specifically acknowledges and agrees that except for the representations and warranties set forth in Article V, Article VI, Article VII, Article VIII and in any Ancillary Agreement or certificate delivered by Opal Group, Opal Feeder, Opal Partners or the Buyer pursuant to this Agreement, Opal Group, Opal Feeder, Opal Partners and the Buyer have not made any other express or implied representation or warranty with respect to Opal Group, Opal Feeder, Opal Partners, the Buyer, their respective assets or Liabilities, the Opal Business, the businesses of the Buyer or the transactions contemplated by this Agreement or the Ancillary Agreements.

Article V

REPRESENTATIONS AND WARRANTIES REGARDING THE OPAL BUSINESS

As an inducement to Nephrite and the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, except (x) as set forth in the applicable section of the Opal Disclosure Letter and (y) that Opal Feeder makes no representations or warranties under this Article V with respect to the FIC Assets, Opal Feeder represents and warrants to Nephrite and the Buyer, as of the date of this Agreement and as of the Closing Date (except, with respect to such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, which shall be given as of such date), as follows:

Section 5.1 Organization; Authority; Enforceability. Each Opal Transferred Company and each Opal Fund, as applicable: (a) is duly organized or formed, validly existing, and in good standing (or the equivalent) under the Laws of its jurisdiction of organization or formation (or, if continued in another jurisdiction, under the Laws of its current jurisdiction of registration (as applicable)), (b) is qualified to do business and is in good standing (or the equivalent) in the jurisdictions in which the conduct of its business or locations of its assets and/or its leasing,

 

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ownership, or operation of properties makes such qualification necessary, except where the failure to be so qualified to be in good standing (or the equivalent) would not reasonably be expected to have an Opal Material Adverse Effect and (c) has the requisite organizational power and authority to own, lease and operate its properties and to carry on its businesses as presently conducted. Correct and complete copies of the Governing Documents of each Opal Transferred Company and each Opal Fund, as in effect on the date of this Agreement, have been made available to Nephrite and the Buyer. Except as set forth on Section 5.1 of the Opal Disclosure Letter, none of the Opal Transferred Companies nor any Opal Fund is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

Section 5.2 Capitalization and Related Matters.

(a) (i) Section 5.2(a)(i) of the Opal Disclosure Letter sets forth the entire authorized, issued, and outstanding Equity Securities of Opal Group and each of its Subsidiaries (each, an “Opal Company”), along with a description of the function of each such Opal Company; (ii) Section 5.2(a)(ii) of the Opal Disclosure Letter sets forth the entire authorized, issued, and outstanding Equity Securities of each Opal Company (identifying each beneficial owner thereof, as of the date of this Agreement), (iii) except as set forth in Section 5.2(a)(iii) of the Opal Disclosure Letter, no Person is entitled to receive any management fees, Promote Distributions or other fees payable or other economics related to the Opal Business other than an Opal Transferred Company and (iv) except as set forth in Section 5.2(a)(iv) of the Opal Disclosure Letter, all of the outstanding Equity Securities of each Opal Transferred Company are duly authorized and validly issued and, to the extent such concepts are applicable, fully paid and non-assessable and have not been issued in violation of applicable Law or the Governing Documents of such Opal Transferred Company. All Equity Securities of any Opal Transferred Company held by the Opal Family are held free and clear of all Liens (other than Permitted Liens).

(b) Except as set forth on Section 5.2(b) of the Opal Disclosure Letter, no Opal Transferred Company has any outstanding Equity Securities not held by the Opal Family or another Opal Transferred Company.

(c) None of the Opal Transferred Companies owns beneficially or of record any Equity Securities in any Person (other than one or more other Opal Transferred Companies or Opal Funds).

(d) There are no bonds, debentures, notes or other Indebtedness of any Opal Transferred Company that grant to a third party the right to vote (or that are convertible into, or exchangeable for, securities having the right to vote) with the equity holders of the Opal Transferred Companies on any matters. Except as set forth on Section 5.2(d) of the Opal Disclosure Letter, there are no voting trusts, irrevocable proxies or other Contracts to which any Opal Transferred Company is a party or is bound with respect to the voting or consent of any ownership interests of any Opal Transferred Company. There are no outstanding stock appreciation or phantom stock rights with respect to any Opal Transferred Company.

 

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Section 5.3 No Breach.

(a) Except as set forth in Section 5.3(a) of the Opal Disclosure Letter and as contemplated by Section 10.11(e) and except as required under the HSR Act, no Permit is required to be obtained or made by or with respect to Opal Group, the Opal Business or any of the Opal Funds in connection with the execution, delivery and performance of this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated by this Agreement and thereby, other than the failure of which to be obtained or made would not, individually or in the aggregate, (x) be material to the Opal Business, taken as a whole, or (y) reasonably be expected to prevent or materially delay the ability of Opal Group to consummate the transactions contemplated by this Agreement.

(b) The execution, delivery and performance of this Agreement and each Ancillary Agreement, the consummation of the transactions contemplated by this Agreement and thereby and the fulfillment of and compliance with the respective terms of this Agreement and thereof by Opal Group, Opal Feeder and Opal Partners with respect to the Opal Transferred Companies do not and shall not (i) materially conflict with or result in a material breach or material violation of, (ii) constitute or result in a termination (or right of termination) or a material default (or give rise to any material right of cancellation, redemption, payment or acceleration) under (whether with or without the passage of time, the giving of notice or both), (iii) result in the creation of any Lien (other than Permitted Liens) upon any of the Opal Assets pursuant to, or (iv) create any right to material payment or any other material right (concurrently or with the passage of time and/or upon the occurrence of one or more events or conditions) under any of the following:

(i) the Governing Documents of any Opal Transferred Company;

(ii) subject to the receipt of consents described in Section 5.3(a) or Section 10.2 of this Agreement, any Law to which any Opal Transferred Company, any of the Opal Funds or the Opal Family (solely to the extent related to the Opal Business) is subject; or

(iii) any Opal Material Contract (including, for the avoidance of doubt, any Opal Fund Documentation and Client Contracts of any Opal Fund).

Section 5.4 Financial Statements and Related Matters.

(a) Section 5.4(a) of the Opal Disclosure Letter sets forth true, correct, and complete copies of the following financial statements (collectively, the “Opal Financial Statements”):

(i) the audited consolidated and combined financial statements of the Opal Business as of December 31, 2019, and December 31, 2018, including the consolidated statements of assets, liabilities and members’ equity as of, and the related audited consolidated and combined statements of revenue, expenses and members’ equity (deficit) and statements of operations and cash flows for, the fiscal year then ended (the “Audited Opal Financial Statements”); and

 

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(ii) the unaudited consolidated and combined statement of financial position of the Opal Business as of the Latest Balance Sheet Date (the “Latest Opal Balance Sheet”), including the statements of assets, liabilities and members’ equity as of, and the related statements of revenue, expenses and members’ equity and cash flows for, the nine (9) month period then ended (the “Unaudited Opal Financial Statements”).

(b) Each of the Opal Financial Statements (including the notes thereto, if any) presents fairly in all material respects the financial position, results of operations and (in the case of the Audited Opal Financial Statements) cash flows of the Opal Business included and specified therein on a consolidated and combined basis as of the dates thereof and for the periods covered thereby in accordance with GAAP, consistently applied throughout the periods covered thereby (subject, in the case of the Unaudited Opal Financial Statements described in Section 2.17, to the absence of footnote disclosures and, in the case of the Latest Opal Balance Sheet, normal year-end adjustments for recurring accruals that are not expected to be material). Each of the audited consolidated financial statements as of and for the year ended December 31, 2019 and the unaudited consolidated financial statements as of and for the nine (9) months ended September 30, 2020 (including the notes thereto, if any) of each of the Opal Funds (in the case of the BDCs, filed with the SEC prior to the date of this Agreement) present fairly in all material respects the financial position, results of operations and cash flows of such Opal Fund on a consolidated basis as of the dates thereof and for the periods covered thereby in accordance with GAAP, consistently applied throughout the periods covered thereby (subject, in the case of the unaudited financial statements for the period ended September 30, 2020, to the absence of footnote disclosures and, in the case of the balance sheet included therewith, normal year-end adjustments for recurring accruals that are not expected to be material). Each such financial statement has been made available to Nephrite and the Buyer.

(c) The Opal Business has designed and maintains a system of internal controls over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) of the Securities Exchange Act, sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Opal Business maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability and (iii) access to assets is permitted only in accordance with management’s general or specific authorization.

Section 5.5 Absence of Undisclosed Liabilities. Except as set forth on Section 5.5 of the Opal Disclosure Letter, the Opal Business and Opal Transferred Companies do not have any Liabilities of any kind or nature whatsoever (including Liabilities to reimburse Opal Feeder or Opal Partners), whether known or unknown, accrued, contingent, absolute, determined, or determinable, whether otherwise due or to become due, and whether or not required to be included on a balance sheet prepared in accordance with GAAP, other than: (i) Liabilities to the extent set forth or reflected on the Latest Opal Balance Sheet or disclosed in the notes thereto or in the notes to the other financial statements that are the subject of or disclosed in the notes thereto or in the notes to the other financial statements that are the subject of Section 2.13; (ii) Liabilities that have arisen after the Latest Balance Sheet Date in the Ordinary Course of Business (none of which is a material Liability resulting from noncompliance with any applicable Laws or Permits, breach of

 

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contract, breach of warranty, tort, infringement, misappropriation, dilution, claim, or lawsuit); (iii) Liabilities to the extent incurred in connection with the transactions contemplated by this Agreement; (iv) Indebtedness that will be accounted for in the Opal Indebtedness Amount; and (v) other Liabilities that would not, individually or in the aggregate, reasonably be expected to result in an Opal Material Adverse Effect.

Section 5.6 No Opal Material Adverse Effect. Since the Latest Balance Sheet Date through the date of this Agreement, there has been no Opal Material Adverse Effect.

Section 5.7 Absence of Certain Developments. Except as set forth on Section 5.7 of the Opal Disclosure Letter or as expressly contemplated by this Agreement, since the Latest Balance Sheet Date, (a) the Opal Business has operated in all material respects in the Ordinary Course of Business and (b) Opal Group has not taken (or has caused or permitted to be taken on its behalf) any action solely to the extent relating to the Opal Business that would, if taken after the date of this Agreement, require the Buyer’s Consent under Section 9.2(a).

Section 5.8 Opal Assets. As of the date of this Agreement, except as set forth on Section 5.8 of the Opal Disclosure Letter, the Opal Family (including through leases, licenses, Contracts or other arrangements) has good and valid title to, a valid leasehold interest in or a valid license to use the Opal Assets, whether tangible or intangible, used or held for use by it, located on its premises, shown on the Latest Opal Balance Sheet (other than Opal Assets acquired or disposed of thereafter in the Ordinary Course of Business), free and clear of all Liens (other than Permitted Liens). As of the completion of the Opal Reorganization and except as contemplated by Section 10.2, an Opal Transferred Company, including through leases, licenses, Contracts or other arrangements, shall have good and valid title to, a valid leasehold interest in or a valid license to use the Opal Assets, whether tangible or intangible, used or held for use by it, located on its premises, shown on the Latest Opal Balance Sheet (other than Opal Assets acquired or disposed of thereafter in the Ordinary Course of Business), free and clear of all Liens (other than Permitted Liens).

Section 5.9 Tax Matters. Except as set forth on Section 5.9 of the Opal Disclosure Letter:

(a) Each Opal Transferred Company has filed all Income Tax Returns and other material Tax Returns required to be filed by it pursuant to applicable Laws (taking into account any validly obtained extensions of time within which to file). All Income Tax Returns and other material Tax Returns filed by each of the Opal Transferred Companies are correct and complete in all material respects and have been prepared in material compliance with all applicable Laws. All material amounts of Taxes due and payable by each of the Opal Transferred Companies (taking into account applicable extensions) and for which the applicable statute of limitations remains open have been paid (whether or not shown as due and payable on any Tax Return).

(b) Each Opal Transferred Company has properly withheld or collected and paid to the applicable Taxing Authority all material amounts of Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and all material sales, use, ad valorem, value added, and similar Taxes and has otherwise complied in all material respects with all applicable Laws relating to the withholding, collection and payment of such Taxes.

 

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(c) No written claim has been made by a Taxing Authority in a jurisdiction where an Opal Transferred Company does not file a particular type of Tax Return, or pay a particular type of Tax, that such Opal Transferred Company is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction, which claim has not been settled or resolved.

(d) No Opal Transferred Company is currently or has been within the past five (5) years the subject of any Tax Proceeding with respect to any Taxes or Tax Returns of or with respect to any Opal Transferred Company, no such Tax Proceeding is pending, and, to the Knowledge of Opal Group, no such Tax Proceeding has been threatened in writing, in each case, that has not been settled or resolved. No Opal Transferred Company has commenced a voluntary disclosure proceeding in any jurisdiction that has not been resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against any Opal Transferred Company have been fully paid, settled or withdrawn, and, to the Knowledge of Opal Group, no such deficiency has been threatened or proposed in writing against any Opal Transferred Company.

(e) Except for extensions resulting from the extension of the time to file any applicable Tax Return, there are no outstanding agreements extending or waiving the statute of limitations applicable to any Tax or Tax Return with respect to any Opal Transferred Company or extending a period of collection, assessment or deficiency for Taxes due from or with respect to any Opal Transferred Company, which period (after giving effect to such extension or waiver) has not yet expired, and no written request for any such waiver or extension is currently pending. No Opal Transferred Company is the beneficiary of any extension of time (other than a validly obtained extension of time not requiring the consent of the applicable Governmental Entity or other extension of time obtained in the Ordinary Course of Business) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, or other similar ruling or request has been granted or issued by, or is pending with, any Governmental Entity.

(f) No Opal Transferred Company has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state or local or non-U.S. Tax Law).

(g) Each Opal Transferred Company is and at all times since its formation has been classified as a partnership or disregarded entity for U.S. federal income tax purposes.

(h) No Opal Transferred Company will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) beginning after the Closing Date (determined with and without regard to the transactions contemplated by this Agreement) as a result of: (i) an installment sale transaction occurring on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a disposition occurring on or before the Closing Date reported as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii) any prepaid amounts received on or prior to the Closing Date or deferred revenue realized, accrued

 

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or received, in each case, outside the Ordinary Course of Business on or prior to the Closing Date; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; or (vi) as a result of application of Code Section 965 or any similar provision of U.S. state or local or non-U.S. Tax Law.

(i) No Opal Transferred Company has deferred any “applicable employment taxes” under Section 2302 of the CARES Act, and the Opal Transferred Companies have properly complied with all requirements for obtaining for all material credits received under Section 2301 of the CARES Act or any similar provision of U.S. state or local or non-U.S. Tax Law.

(j) There is no Lien for Taxes on any of the assets of any Opal Transferred Company, other than Permitted Liens.

(k) No Opal Transferred Company has any Liability for Taxes of any other Person (other than any Opal Transferred Company or Opal Fund) as a successor or transferee, by contract, by operation of Law, or otherwise (other than pursuant to an Ordinary Course Tax Sharing Agreement). No Opal Transferred Company is party to or bound by any Tax Sharing Agreement, except for any Ordinary Course Tax Sharing Agreement or any agreement by any Blue Owl Flow-Thru Companies to make customary tax distributions to its owners.

(l) The unpaid Taxes of the Opal Transferred Companies do not materially exceed reserves for Tax Liabilities as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Opal Transferred Companies in filing their Tax Returns.

(m) Opal Feeder is not a foreign person within the meaning of Code Section 1445 or Code Section 1446(f).

(n) No election has been made under Treasury Regulation Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Opal Transferred Company. No Opal Transferred Company has been subject to any Tax Proceeding for which it was eligible to make but did not make an election under Code Section 6226.

(o) To the Knowledge of Opal Group, no Opal Transferred Company has taken or agreed to take any action not contemplated by this Agreement and/or any related Ancillary Agreements that could reasonably be expected to prevent, impair or impede the Intended Tax Treatment.

Section 5.10 Opal Material Contracts.

(a) Section 5.10 of the Opal Disclosure Letter lists all of the following Contracts (other than Opal Employee Benefit Plans) (such Contracts, together with the Client Contracts related to the Opal Business and the Opal Fund Documentation, the “Opal Material Contracts”), to which any entity in the Opal Family is a party (solely to the extent such Contract relates to the Opal Business), as of the date of this Agreement:

 

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(i) other than Governing Documents of the Opal Family, any Contract between the Opal Family (other than the Opal Transferred Companies), on the one hand, and any of the Opal Transferred Companies, on the other hand, and any Contract between any Opal Transferred Company, on the one hand, and one or more of the Opal Principals or one or more of the directors, officers or senior management employees of the Opal Family (solely to the extent entered into on behalf of or otherwise related to the Opal Business), on the other hand (each such Contract, an “Opal Affiliate Arrangement”);

(ii) each Material Lease;

(iii) any agreement with a deferred purchase price payment and any funding agreement, indenture, credit agreement, loan agreement, note mortgage, guarantee security agreement, or other Contract for financing or funding currently outstanding or available for draw after the date of this Agreement relating to the securing or borrowing of money, in each case, solely to the extent the Opal Group (solely to the extent relating to the Opal Business) is an obligor or has material outstanding liabilities under the respective agreement;

(iv) any placement, agency, dealer, sales representative, distribution, investor referral (for which a fee is charged), solicitation, marketing, transfer agent, or similar Contract, in each case, with respect to the Opal Funds;

(v) other than Governing Documents of the Opal Family, any joint venture, strategic alliance, distribution, partnership, or similar Contract, and any Contract involving a sharing of profits, expenses, or payments, in each case of the Opal Business;

(vi) any Contract that is primarily a Contract of guarantee, support, indemnification (for the avoidance of doubt, excluding ordinary course indemnification obligations or indemnification related to breach of Contract and insurance policies), assumption, or endorsement of or any similar commitment with respect to Liabilities of any Person (other than such contracts of any Opal Transferred Company related to obligations of any other Opal Transferred Company);

(vii) any material Contract with any Governmental Entity solely to the extent relating to the Opal Business (other than a Contract relating to an investment by a Governmental Entity in an Opal Fund);

(viii) other than Governing Documents of the Opal Family, any Contract that contains any restriction that has not expired on the Opal Business’s or any Opal Principal’s ability to invest in industry or engage in any business or in any geographic area or in competitors of specified Persons or binds the Opal Business or any Opal Principal to any non-competition, exclusive dealing or material non-solicitation obligations (other than (x) customary employee non-solicitation provisions, (y) nondisclosure and confidentiality obligations and agreements, in each case with respect to prospective or actual portfolio investments (z) any Contract with Opal Funds, including acquisition agreements, equity or subscription agreements, registration rights agreements or shareholder agreements) or that obligates the Opal Business or any Opal Principal to conduct business with a third party on an exclusive basis;

 

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(ix) other than this Agreement or any Ancillary Agreement, any Contract relating to the acquisition or disposition of any business or operations of the Opal Business (whether by merger, sale of stock, sale of assets, or otherwise) as to which there are any ongoing material obligations;

(x) other than Governing Documents of the Opal Family, any Contract pursuant to which a third party would reasonably be expected to have a valid right to prevent, materially impair, or materially delay the consummation of the Closing;

(xi) any Contract that requires the Opal Business to pay consideration or payments to unaffiliated third parties for goods or services in excess of $2,000,000 per year or $5,000,000 in the aggregate;

(xii) any Contract that requires the Opal Business to pay any commission, finder’s fee, royalty or similar payment of more than $2,000,000 annually, other than in the Ordinary Course of Business (including relating to employee recruitment), in each case other than any placement agent or similar agreement;

(xiii) any Contract that obligates the Opal Business to pay any earn-out or other similar deferred consideration in connection with an acquisition in excess of $5,000,000;

(xiv) any CBA; and

(xv) any fee or engagement letter or other similar Contract as it relates to the provision of services by a financial advisor that would result in any payments being due to a financial advisor in connection with this Agreement and the transactions contemplated by this Agreement or as to which there are any ongoing material obligations.

Notwithstanding the foregoing provisions of this Section 5.10(a)Opal Material Contracts” shall not include (i) Contracts of Opal Funds, or entities formed to hold portfolio investments, with respect to the acquisition, ownership, servicing or disposition of portfolio investments by Opal Funds and/or such entities, (ii) any Contracts with respect to any portfolio investment, including any Governing Documents of any portfolio investment, or (iii) Contracts that relate solely to the FIC Assets.

(b) All of the Opal Material Contracts are valid, binding, and enforceable, and in full force and effect in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors’ rights generally and to general principles of equity, except as will not result in a material loss to the Opal Transferred Companies, taken as a whole. The Opal Family, solely to the extent related to the Opal Business, has performed all material obligations required to be performed by it and is not in material default under or material breach of, nor in receipt of any claim of such default under or breach of, any Opal Material Contract. To the Knowledge of Opal Group, no event has occurred that (with the passage of time or the giving of notice or both) would result in a material default under or material

 

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breach of, or permit the termination, modification, or acceleration of any material obligation under, any Opal Material Contract. To the Knowledge of Opal Group, there are no oral Opal Material Contracts. Opal Group has made available or delivered to Nephrite and the Buyer true and correct copies of all Opal Material Contracts.

Section 5.11 Intellectual Property Rights. Except as set forth on Section 5.11 of the Opal Disclosure Letter:

(a) Section 5.11(a) of the Opal Disclosure Letter sets forth a true, correct and complete list of all Owned Intellectual Property that is registered, issued or the subject of a pending application, in each case, solely to the extent related to the Opal Business. All of the material registrations, issuances and applications set forth in Section 5.11(a) of the Opal Disclosure Letter are valid, in full force and effect and have not expired or been cancelled, abandoned or otherwise terminated, and payment of all renewal and maintenance fees and expenses in respect thereof, and all filings related thereto, have been duly made.

(b) As of the date of this Agreement, the Opal Family (x) exclusively owns and possesses (free and clear of all Liens, except for Permitted Liens) the entire right, title and interest in and to, or has a valid, enforceable, and sufficient license to use, all Intellectual Property Rights used in or necessary for the conduct of the Opal Business as presently conducted, (y) has the exclusive right (to the extent afforded by applicable Intellectual Property Rights Laws) to use the Opal Track Record, and (z) has not granted any Person the right to use, and no other Person has the right to use, the Opal Track Record. As of immediately following the completion of the Opal Reorganization, the Opal Transferred Companies (x) shall exclusively own and possess (free and clear of all Liens, except for Permitted Liens) the entire right, title and interest in and to, or shall have a valid, enforceable, and sufficient license to use, all Intellectual Property Rights used in or necessary for the conduct of the Opal Business as presently conducted, (y) shall have the exclusive right (to the extent afforded by applicable Intellectual Property Rights Laws) to use the Opal Track Record, and (z) shall not have granted any Person the right to use, and no other Person has the right to use, the Opal Track Record.

(c) As of the date of this Agreement, except as set forth on Section 5.11(c) of the Opal Disclosure Letter, as of the date of this Agreement (i) there are no (and, since January 1, 2018, there have not been any) Proceedings pending or threatened in writing against the Opal Family (solely to the extent related to the Opal Business) asserting (A) any invalidity or unenforceability of, or challenging the ownership or scope of, any material Intellectual Property Rights included in the Opal Assets or (B) any infringement, dilution, or misappropriation by the Opal Family (solely to the extent related to the Opal Business) of the Intellectual Property Rights of any Person in the conduct of the Opal Business, (ii) except as would not reasonably be expected to result in material Liability to the Opal Business, taken as a whole, since January 1, 2018, the conduct of the Opal Business has not infringed, misappropriated or diluted any Intellectual Property Rights of any other Person, and (iii) to the Knowledge of Opal Group, the Intellectual Property Rights included in the Opal Assets have not been infringed, misappropriated or diluted by any other Person in any material respect.

 

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(d) As of the date of this Agreement, except as would not reasonably be expected to materially impair the operation of the Opal Business, taken as a whole, the Opal Family (solely to the extent related to the Opal Business) has implemented policies and procedures reasonably designed to protect the confidentiality and value of any trade secrets that are included in the Opal Assets or in the possession of the Opal Transferred Companies, and to the Knowledge of Opal Group, such trade secrets have not been disclosed to any Person except pursuant to appropriate non-disclosure obligations.

(e) As of the date of this Agreement, except as would not reasonably be expected to materially impair the operation of the Opal Business, taken as a whole, the Opal Family (solely to the extent related to the Opal Business) has obtained from Opal Group Employees and other employees of the Opal Family who have in the past been part of the Opal Business who have contributed to the creation or development of any material Intellectual Property Rights for the Opal Business, written agreements containing assignment to the Opal Family of all such Intellectual Property Rights.

Section 5.12 Data Security; Data Privacy.

(a) The Opal Family has established and implemented written policies, notices, records, logs and procedures and organizational, physical, administrative, and technical measures regarding privacy, cybersecurity, and data security covering the Opal Business (collectively, the “Opal Privacy and Security Policies”) that (i) are consistent in all material respects with all applicable Data Protection Laws and (ii) are appropriate to protect Personal Information and other data relating to the Opal Business against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access.

(b) The Opal Family has where required by Data Protection Laws, entered into Contracts with its service providers and other material business relationships that meet the requirements of Data Protection Laws applicable to the Opal Business.

(c) The Opal Family has materially aligned its cybersecurity practices applicable to the Opal Business with relevant generally-applicable industry standards and carries out regular external and/or internal penetration tests and vulnerability assessments of its information technology systems and business environment designed to identify any cybersecurity threats and has remediated any and all material identified vulnerabilities.

(d) The Opal Family (solely to the extent related to the Opal Business) has at all times complied with all of the Opal Privacy and Security Policies in all material respects.

(e) In the past three (3) years, the Opal Business has not: (i) suffered any actual or suspected material unauthorized access to Personal Information or cybersecurity incident; (ii) received any notices or requests from, or to the Knowledge of Opal Group, been subject to any investigations by any Governmental Entity or other regulatory authority in relation to its Processing activities and compliance with Data Protection Laws; or (iii) received notice from individuals alleging non-compliance with Data Protection Laws.

Section 5.13 Litigation. Except as set forth on Section 5.13 of the Opal Disclosure Letter or in respect of the Opal Funds, there are no (and since January 1, 2018, there have not been any) Proceedings (i) seeking to revoke, reconsider the grant of, cancel, suspend or modify, or declare invalid any of the Permits necessary for the operation of the Opal Business, (ii) pending or, to the

 

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Knowledge of Opal Group, threatened against any Opal Transferred Company or the Opal Family (solely to the extent relating to the Opal Business), at law or in equity, or before or by any Governmental Entity, including any Proceedings that seek to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated by this Agreement or by the Ancillary Agreements or (iii) any material Orders from any Governmental Entity with respect to the Opal Business and the Opal Family has not been notified by any Governmental Entity in writing to the effect that such Governmental Entity is contemplating issuing or requesting any such material Order with respect to the Opal Business, in each case, except as has not had or would not reasonably be expected to result in an Opal Material Adverse Effect.

Section 5.14 Brokerage. Except as set forth on Section 5.14 of the Opal Disclosure Letter, the Opal Business does not have any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated by this Agreement or thereby, that would result in the obligation of the Opal Business or any Party to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

Section 5.15 Labor Matters.

(a) The Opal Family (solely with respect to the Opal Business and the Opal Group Employees) is not party to or bound by any CBA or bargaining relationship with any labor union, works council, labor organization or employee representative and no Opal Group Employee is represented by a labor union, works council, labor organization or employee representative with respect to the Opal Group Employees. To the Knowledge of Opal Group, no union organizing activities are underway or threatened with respect to any Opal Group Employees and no such activities have occurred since January 1, 2018. There are no strikes, walkouts, work stoppages or slowdowns, lockouts, picketing, or other material labor disputes pending or, to the Knowledge of Opal Group, threatened against or affecting the Opal Family (with respect to the Opal Business or the Opal Group Employees), and no such disputes have occurred since January 1, 2018.

(b) The Opal Transferred Companies and the Opal Family (solely with respect to the Opal Business and the Opal Group Employees) are, and since January 1, 2016, have been, in compliance in all material respects with all applicable Laws respecting labor, employment, and employment practices, including all applicable Laws respecting wages and hours, collective bargaining and other protected concerted activity, labor relations, employment discrimination, equal opportunity, safety and health, COVID-19, harassment and retaliation, paid time off, employee leave, disability rights and benefits, whistleblowers, immigration status, layoffs and reductions in force, workers’ compensation, and the payment and withholding of employment-related Taxes. Except as would not result in a material Liability for any Opal Transferred Company or the Opal Business, the Opal Family has fully and timely paid all wages, salaries, bonuses, commissions, wage premiums, fees, expense reimbursements, severance, and other compensation that have come due and payable to past and current Opal Group Employees and independent contractors providing services to the Opal Business pursuant to any Law, Contract, or policy of the Opal Family.

 

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(c) As of the date of this Agreement, except as has not been, and would not reasonably be expected to be, material to the Opal Transferred Companies, taken as a whole, (i) since January 1, 2018 there are no charges, complaints, audits or investigations pending before any Governmental Entity pertaining to the employment practices or actions of the Opal Transferred Companies or, to the Knowledge of Opal Group, threatened against the Opal Transferred Companies; and (ii) none of the Opal Transferred Companies has any material liability with respect to misclassification of any employee as an independent contractor or contingent worker rather than as an “employee.”

(d) Neither the Opal Transferred Companies nor the Opal Family (solely with respect to the Opal Business) have in the past three (3) years, implemented any office closing or mass layoff triggering notice under the WARN Act.

(e) No individual who is currently providing services to the Opal Business through a third-party service provider is an employee of the Opal Business. The Opal Transferred Companies do not have a single employer, joint employer, alter ego or similar relationship with any independent, third-party company.

(f) To the Knowledge of Opal Group, no current or former Opal Group Employee is in material violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, non-competition agreement, restrictive covenant or other obligation: (i) to the Opal Family or (ii) to a former employer of any such employee relating (A) to the right of any such Opal Group Employee to be employed by the Opal Family or (B) to the Knowledge or use of trade secrets or proprietary information.

(g) To the Knowledge of Opal Group, since January 1, 2018, no Opal Group Employee has been the subject of any formal claim of sexual harassment, sexual misconduct or sexual assault during his or her tenure at the Opal Transferred Companies or the Opal Family, and neither the Opal Transferred Companies nor the Opal Family (solely with respect to any Opal Group Employee) has entered into any settlement agreement or confidentiality agreement relating to allegations of sexual harassment, sexual misconduct or sexual assault.

(h) To the Knowledge of Opal Group, as of the date of this Agreement, no Opal Group Employee intends to terminate his or her employment with Opal Group or its Subsidiaries.

Section 5.16 Employee Benefits.

(a) Section 5.16(a) of the Opal Disclosure Letter sets forth an accurate and complete list of each material Opal Employee Benefit Plan. Opal Group has made available to Nephrite and the Buyer, to the extent applicable, with respect to each material Opal Employee Benefit Plan, complete and correct copies of (i) the written document and, if applicable, the summary plan description (and summaries of material modifications thereto) evidencing such plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments or material supplements to any such plan, (ii) the annual report (Form 5500), if any, filed with the IRS for the last plan year, and the most recently received IRS determination or opinion letter, (iii) any material correspondence in the last year to or from the IRS, the U.S. Department of Labor, the U.S. Pension Benefit Guaranty Corporation or any other Governmental Entity and (iv) any related trust agreements, insurance contracts or documents of any other funding arrangements relating to such plan. As applicable with respect to each Opal PEO Plan, Opal Group has made available to Nephrite and to the Buyer summaries of each Opal

 

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PEO Plan and the Contract or agreement pursuant to which the PEO provides services to Opal or the availability of such Opal PEO Plans to Opal Group Employees. Each Opal Employee Benefit Plan (and each related trust, insurance contract, or fund) and, to the Knowledge of Opal Group, each Opal PEO Plan has been established, maintained, in form and operation, funded and administered, in all material respects, in accordance with its terms and in compliance with all applicable requirements of ERISA, the Code and other applicable Laws. With respect to each Opal Employee Benefit Plan, and as it relates to Opal Group’s participation under each Opal PEO Plan, all premiums, contributions, reimbursements, accruals, or other payments (including all employer contributions and employee salary reduction contributions) that are due have been made on a timely basis and amounts not yet due have been accrued to the extent required under GAAP.

(b) Each Opal Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS as to such Employee Benefit Plan’s qualified status, and to the Knowledge of Opal Group nothing has occurred that could reasonably be expected to adversely affect such Opal Employee Benefit Plan’s qualification. There are no Proceedings pending or, to the Knowledge of Opal Group, threatened (other than routine claims for benefits) with respect to any Opal Employee Benefit Plan or, to the Knowledge of Opal Group, any Opal PEO Plan. The Opal Business has not incurred (whether or not assessed) any Tax or penalty under Section 4980B, 4980H, 4980D, 6721 or 6722 of the Code.

(c) None of the Opal Transferred Companies maintain, sponsor, contribute to, have not contributed in the last six (6) years to, have not had any obligation to contribute to or have not had and do not have any Liability, including on account of any other Person that is or (at a relevant time) was treated as a single employer with any Opal Transferred Company under Code Section 414 under or with respect to (i) any “defined benefit plan” as defined in Section 3(35) of ERISA or any other plan that is or was subject to Code Sections 412 or 430 or Title IV of ERISA, (ii) any “multiemployer plan” as defined in Section 3(37) of ERISA, (iii) any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or “multiple employer plan” to which Code Section 413(c) applies, or (iv) any benefit plan, program, or arrangement that provides for post-retirement or post-termination medical, life insurance, or other welfare-type benefits (except as required by Code Section 4980B or any similar applicable state Law for which the recipient pays the full premium cost).

(d) None of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement or the Ancillary Agreements (either alone or in combination with any termination of employment or status as employee, officer, director or independent contractor) could (i) entitle any current or former Opal Group Employee or any director or independent contractor of the Opal Business to severance pay or any material increase in severance pay or any other material compensation or benefits, (ii) accelerate the time of payment or vesting, or materially increase the amount of compensation due to any current or former Opal Group Employee or any director or independent contractor of the Opal Business, (iii) directly or indirectly cause the Opal Family to transfer or set aside any assets to fund any material benefits under any Opal Employee Benefit Plan, or (iv) otherwise give rise to any material Liability under any Opal Employee Benefit Plan, in each such case which would not have occurred absent execution and delivery of this Agreement and consummation of the transactions contemplated by this Agreement.

 

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(e) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement would be reasonably likely either alone or in combination with another event, result in the payment of any amount that would reasonably be expected, individually or in combination with any other payment, to constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code. No Opal Transferred Company is party to any Contract or otherwise has any obligation to provide, and no Opal Employee Benefit Plan or other agreement provides any individual with the right to, a gross up, indemnification, reimbursement, or other payment for any excise or additional taxes, interest or penalties incurred pursuant to Section 409A or Section 4999 of the Code or due to the failure of any payment to be deductible under Section 280G of the Code. With respect to any Opal Employee Benefit Plan, no Opal Transferred Company has engaged in a transaction in connection with which any Opal Transferred Company reasonably would be expected to be subject to either a material civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code.

Section 5.17 Compliance with Laws; Permits. Except as set forth on Section 5.17 of the Opal Disclosure Letter:

(a) Except as would not reasonably be expected to materially impair the operations of the Opal Business, taken as a whole, or result in a Liability that is material to the Opal Business, taken as a whole, (i) the Opal Family (solely to the extent related to the Opal Business), the Opal Business and each Opal Transferred Company are (and since January 1, 2016, have been) in compliance with all applicable Laws, and (ii) no written notices have been received by and, to the Knowledge of Opal Group, no oral notices have been received by and no Proceedings have been filed against the Opal Family (solely to the extent related to the Opal Business) alleging a violation of any such Laws.

(b) Neither the Opal Family (solely to the extent related to the Opal Business), any Opal Transferred Company nor any Opal Group Employee, is, or at any time since January 1, 2016, has been, (i) subject to any cease and desist, censure or other disciplinary or similar order issued by, (ii) a party to any settlement agreement, consent agreement, memorandum of understanding or disciplinary agreement with, (iii) a party to any commitment letter or similar undertaking to, (iv) subject to any order or directive by or (v) a recipient of any supervisory letter from, in each case, any Governmental Entity, and none of them is threatened with the imposition or receipt of any of the foregoing.

(c) To the extent required by applicable Law, the Opal Family has adopted, and maintained, customary “know-your-customer” and anti-money laundering programs and reporting procedures covering the Opal Business, and have complied in all material respects with the terms of such programs and procedures for detecting and identifying money laundering with respect to the Opal Business. To the extent applicable, the subscription agreement that an investor executes prior to being admitted to any Opal Fund contains customary representations and warranties (which representations and warranties are customary as of the date of execution) that such investor is not a Sanctioned Person.

 

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(d) No member of the Opal Family (solely to the extent related to the Opal Business) nor, to the Knowledge of Opal Group, any Opal Group Employee: (i) has ever been indicted for or convicted of any felony or any crime involving fraud, misrepresentation or insider trading or (ii) (A) is subject to any outstanding order barring, suspending or otherwise materially limiting the right of any such individual to engage in any activity conducted as part of the Opal Business as currently conducted, or (B) has any reasonable basis to believe that such Persons are the subject of any ongoing investigation by any Governmental Entity.

(e) No Disqualification Event is applicable to any Opal Transferred Company or Opal Fund or, with respect to any Opal Transferred Company or Opal Fund as an “issuer” for purposes of Rule 506 promulgated under the Securities Act, any Person listed in the first paragraph of Rule 506(d)(1), except for a Disqualification Event as to which Rule 506(d)(2)(ii)–(iv) or (d)(3) is applicable.

(f) The Opal Family (solely to the extent related to the Opal Business) or the Opal Funds, as applicable, owns or possesses all right, title, and interest in and to each of its respective Permits issued or granted by any Governmental Entity and has complied and is in compliance in all material respects with all Permits required for ownership of the properties and assets and the conduct and operation of the Opal Business as presently conducted, and no notices have been received by the Opal Business alleging the failure to hold any of the foregoing. The Opal Business has obtained all Permits required for the conduct and operation of such Opal Business in the jurisdictions in which it operates, except as would not reasonably be expected to materially impair the operation of the Opal Business. To the Knowledge of Opal Group, except as would not reasonably be expected to materially impair the operation of the Opal Business, taken as a whole, or result in material Liability to the Opal Business, taken as a whole, each employee of the Opal Family (solely to the extent related to the Opal Business) who is required to be registered or licensed as a registered representative, investment adviser representative, salesperson, broker-dealer, or an equivalent person with any Governmental Entity in connection with activities conducted in their employment in respect of the Opal Business is duly registered or licensed as such and such registration or license is in full force and effect.

(g) Except as would not reasonably be expected to materially impair the operations of the Opal Business, taken as a whole, or result in a Liability that is material to the Opal Business, taken as a whole, all Permits required for each Opal Fund to conduct its business as currently conducted, for the ownership and use of its properties or assets or that are required for its employees, if any, to perform the services, duties, and responsibilities performed by or on behalf of such Opal Fund in connection with its business have been obtained by it. Except as would not reasonably be expected to materially impair the operations of the Opal Business, taken as a whole, or result in a Liability that is material to the Opal Business, taken as a whole, all such Permits are valid and in full force and effect, no material default or violation exists thereunder.

(h) Since January 1, 2016, each Opal Fund has filed (after giving effect to any extensions) with the SEC all material forms, documents, and reports required to be filed or furnished prior to the date of this Agreement by it with the SEC. Each such form or report, as of the time of its filing or, if applicable, as of the time of its most recent amendment, complied in all material respects with, to the extent in effect at such time, the requirements of the Securities Act, the Securities Exchange Act and the Investment Company Act applicable to such form or report, and no such form or report when filed or, if amended, as of the date of such most recent amendment, 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. Each Opal Fund has issued its outstanding equity interests pursuant to an effective registration statement under the Securities Act (or an applicable exemption therefrom).

 

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(i) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, an Opal Material Adverse Effect, to the Knowledge of Opal Group, there are no unresolved issues with the SEC with respect to the Opal Business or any Opal Transferred Company.

(j) As of the date hereof, none of the Opal RIA Subsidiaries (solely to the extent related to the Opal Business) is subject to, and has not received any notice of, an examination, inspection, investigation or inquiry by a Governmental Entity, and no such examination, inspection, investigation or inquiry has been started or completed for which no examination report is available.

(k) None of the Opal RIA Subsidiaries (solely to the extent related to the Opal Business) nor any Opal Transferred Company is prohibited from charging fees to any Person pursuant to Rule 206(4)-5 under the Investment Advisers Act or any similar “pay-to-play” rule or requirement, except as would not reasonably be expected to materially impair the operations of the Opal Business, taken as a whole, or result in a Liability that is material to the Opal Business, taken as a whole.

Section 5.18 Anti-Bribery; Anti-Corruption. The Opal Business is, and has been at all times since January 1, 2016, in material compliance with all applicable Anti-Corruption Laws. Since January 1, 2016, the Opal Family has instituted policies and procedures covering the Opal Business reasonably designed to ensure compliance with all applicable Anti-Corruption Laws with respect to the Opal Business and maintains such policies and procedures in effect. Since January 1, 2016, none of the Opal Family, the Opal Funds or, to the Knowledge of Opal Group, any of their respective agents (in each case, solely to the extent related to the Opal Business) has, directly or indirectly, in furtherance of or in connection with the business of such entity: (i) offered, promised, given, authorized, or agreed to give any financial or other advantage or inducement to any Person with the intention of influencing (A) any representative of any foreign, federal, state, or local Governmental Entity, including any representative of a state-owned entity or a public organization, in the performance of his or her public functions or (B) any other Person (whether or not such Person is the recipient of the advantage or inducement) to perform his, her, or its function improperly, or where the acceptance of such advantage or inducement would itself be unlawful; (ii) requested, agreed to receive, or accepted any financial or other advantage or inducement where such request, agreement to receive, or acceptance would be unlawful; (iii) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expenses relating to political activity; (iv) made any unlawful bribe, rebate, payoff, influence payment kickback, or other unlawful payment to any foreign or domestic government official or employee; or (v) otherwise taken any action that would constitute a violation of any Anti-Corruption Laws. Since January 1, 2016, no member of the Opal Family (solely to the extent related to the Opal Business) has received from any Governmental Entity or any other Person any written notice, inquiry, or allegation, made any voluntary or involuntary disclosure to a Governmental Entity, or conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing related to applicable Anti-Corruption Laws or policies and procedures designed to ensure compliance therewith.

 

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Section 5.19 Anti-Money Laundering; Sanctions; Customs & Trade Laws.

(a) Except as would not reasonably be expected to materially impair the operations of the Opal Business, taken as a whole, or result in a Liability that is material to the Opal Business, taken as a whole, since January 1, 2016, none of the Opal Family, the Opal Funds or, to the Knowledge of Opal Group, any other Person acting for or on behalf of any of the foregoing (in each case, solely to the extent related to the Opal Business) (i) has been or is currently a Sanctioned Person or Restricted Person; (ii) has engaged or is currently engaging in any business or other dealings with or involving (A) any Sanctioned Country or (B) any Sanctioned Person or Restricted Person, in each case in violation of applicable Sanctions or Customs & Trade Laws; (iii) has failed to conduct its import, export, and reexport transactions and any other transfers in accordance with all applicable Customs & Trade Laws; or (iv) has otherwise been in violation of applicable Anti-Money Laundering Laws, Sanctions, or Customs & Trade Laws.

(b) Since January 1, 2016, and prior to the date of this Agreement, none of the Opal Family or the Opal Funds has received from any Governmental Entity or any other Person (in each case, solely to the extent related to the Opal Business) any written or oral notice, inquiry, or allegation; made any voluntary or involuntary disclosure to a Governmental Entity; or conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing related to applicable Anti-Money Laundering Laws, Sanctions, or Customs & Trade Laws.

(c) Since January 1, 2016, the Opal Family and the Opal Funds have each had in place controls and systems reasonably designed to ensure compliance by the Opal Business with applicable Anti-Money Laundering Laws, Sanctions, and Customs & Trade Laws.

Section 5.20 Real Property.

(a) The Opal Transferred Companies neither own nor have ever owned any real property.

(b) Section 5.20(b)(i) of the Opal Disclosure Letter sets forth a true and complete list of all Leases for each Leased Real Property and the address of each Leased Real Property that is used by the Opal Business. Except as set forth on Section 5.20(b)(ii) of the Opal Disclosure Letter, except as would not reasonably be expected to materially impair the operations of the Opal Business, taken as a whole, or result in a Liability that is material to the Opal Business, taken as a whole, with respect to each of the Leases: (i) such Lease is legal, valid, binding, enforceable, and in full force and effect; and (ii) the Opal Family (solely to the extent related to the Opal Business) is not in breach or default under such Lease, and to the Knowledge of Opal Group, no event has occurred or circumstance exists which, with the delivery of notice, the passage of time, or both, would constitute such a breach or default, or permit the termination, modification, or acceleration of rent under such Lease.

 

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Section 5.21 Environmental. Except as set forth on Section 5.21 of the Opal Disclosure Letter: (a) the Opal Business is, and since January 1, 2018, has been, in compliance in all material respects with all Environmental Laws, including with respect to all Permits required pursuant to Environmental Laws for their occupancy of their owned, leased, or operated real property (including the Leased Real Property) or their operation of their business; (b) the Opal Family (solely to the extent related to the Opal Business) has not received any written notice, which remains unresolved, regarding any material Liabilities, any material violation, or any material corrective, investigatory, or remedial obligations, of any Opal Transferred Company relating to Environmental Laws; (c) the Opal Business has not treated, stored, disposed or arranged for the disposal of, handled, transported, released, or exposed any Person to any Hazardous Substances, and no real property currently or formerly owned, leased, or operated by any Opal Transferred Company (including the Leased Real Property) is or has been contaminated by any Hazardous Substances, in each case in such concentrations or manner as has given or would give rise to any unresolved material violation by, or unresolved material Liabilities or unresolved material corrective, investigatory, or remedial obligations of, the Opal Family (solely to the extent related to the Opal Business) under Environmental Laws; and (d) the Opal Business is not subject to any Orders or has by contract or operation of law assumed, undertaken, or provided an indemnity with respect to the material Liabilities of any other Person relating to any Environmental Laws or Hazardous Substances.

Section 5.22 Affiliate Transactions. Except as set forth on Section 5.22 of the Opal Disclosure Letter, none of the Opal Family nor any of the Opal Principals, nor any director, officer or employee of the Opal Family, nor any individual related by blood, marriage, or adoption to any such individual nor any Affiliates of any such Person (other than in an Opal Transferred Company or an Opal Fund), is or has been a party to any material agreement, contract, commitment, or transaction with any Opal Transferred Company, Opal Fund or any other entity in the Opal Family (solely to the extent related to the Opal Business) or has any right, title, or interest in any property owned or used by any Opal Transferred Company or Opal Fund (including any Intellectual Property Rights).

Section 5.23 Broker-Dealer.

(a) Other than the Opal Broker-Dealer Subsidiary, no Opal Transferred Company is, or has ever been, registered as or required to register as a broker-dealer under the Exchange Act or any similar state securities law, or is a member of FINRA.

(b) The Opal Broker-Dealer Subsidiary is duly registered under the Securities Exchange Act as a broker-dealer with the SEC and with all states and other jurisdictions in which it is required to be registered and has operated since its registration date and is currently operating in compliance in all material respects with all Laws applicable to it or its business, has made all required regulatory filings, and has all registrations, permits, licenses, exemptions, orders, and approvals required for the operation of its business or ownership of its properties and assets substantially as presently conducted, except, in each case, as would not, either individually or in the aggregate, reasonably be expected to result in a material Liability to the Opal Transferred Companies, taken as a whole. The Opal Broker-Dealer Subsidiary is a member in good standing of FINRA and all other Self-Regulatory Organizations of which it is required to be a member and in compliance with all applicable rules of FINRA and any such Self-Regulatory Organization of which it is a member or which otherwise has authority over it, except for any such non-compliance that would not, individually or in the aggregate, reasonably be expected to be material to the Opal Business, taken as a whole. The Opal Broker-Dealer Subsidiary is not required to be licensed or registered in any jurisdiction outside of the United States of America, or to be registered with the Commodity Futures Trading Commission and/or a member of the National Futures Association.

 

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(c) Opal Group has made available to Nephrite and the Buyer true, correct, and complete copies of each Uniform Application for Broker-Dealer Registration on Form BD filed by the Opal Broker-Dealer Subsidiary since January 1, 2018, reflecting all amendments thereto to the date of this Agreement (each, a “Form BD”). The Forms BD of the Opal Broker-Dealer Subsidiary are in compliance in all material respects with the applicable requirements of the Securities Exchange Act, except for any non-compliance that would not, individually or in the aggregate, reasonably be expected to result in a material Liability to the Opal Business, taken as a whole.

(d) Neither the Opal Broker-Dealer Subsidiary nor any “associated person” thereof (i) is or has been ineligible to serve as a broker-dealer or an associated person of a broker-dealer under Section 15(b) of the Securities Exchange Act, (ii) is subject to a “statutory disqualification” as defined in Section 3(a)(39) of the Securities Exchange Act, or (iii) is subject to a disqualification that would be a basis for censure, limitations on the activities, functions, or operations of, or suspension or revocation of the registration of the Opal Broker-Dealer Subsidiary as broker-dealer, municipal securities dealer, government securities broker, or government securities dealer under Section 15, Section 15B or Section 15C of the Securities Exchange Act, and there is no Proceeding pending or, to the Knowledge of Opal Group, threatened, that is reasonably likely to result in any such person being deemed ineligible as described in clause (i), subject to a “statutory disqualification” as described in clause (ii) or subject to a disqualification as described in clause (iii) or (iv) is subject to any undertaking as a result of any Order by any Governmental Entity.

(e) The Opal Broker-Dealer Subsidiary currently maintains and, at all times since its registration date, has maintained “net capital” (as such term is defined in Rule 15c3-1(c)(2) under the Securities Exchange Act) equal to or in excess of the minimum “net capital” required to be maintained by it under the Securities Exchange Act.

Section 5.24 Investment Advisory Services. Except on behalf of the Opal RIA Subsidiary or any relying advisers in respect thereof, no Opal Transferred Company provides, and no Opal Transferred Company has, since January 1, 2018, provided, Investment Advisory Services to any investment vehicle, company, fund or account, or other Person. Other than to the Opal Funds and any co-investment vehicles with respect thereto, none of the Opal Transferred Companies provide, and have not since January 1, 2018 provided, Investment Advisory Services to any investment vehicle, company, fund or account, or other Person.

Section 5.25 Insurance. As of the date of this Agreement, the Opal Family maintains property, casualty, workers compensation, professional lines, fidelity, cyber and other insurance with insurance carriers against operational risks and risks to the assets, properties, and employees of the Opal Business with respect to the policy year that includes the date of this Agreement (collectively, “Opal Insurance Plans”). Except as would not reasonably be expected to materially impair the operations of the Opal Business, taken as a whole, or result in a Liability that is material to the Opal Business, taken as a whole, all such Opal Insurance Plans and arrangements are, as of

 

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the date of this Agreement, in full force and effect, all premiums due and payable thereunder have been paid, and no notice of cancellation or termination has been received with respect to any such policy and, to the Knowledge of Opal Group, there exists no event, occurrence, condition or act (including the transactions contemplated by this Agreement) that, with the giving of notice, the lapse of time or the happening of any other event or condition, would entitle any insurer to terminate or cancel any such policies.

Section 5.26 Regulatory Compliance.

(a) None of the Opal Family (solely to the extent related to the Opal Business) nor, to the Knowledge of Opal Group, any officer, director, or employee thereof, nor any other “affiliated person” (as defined in the Investment Company Act) thereof, is ineligible pursuant to Section 9(a) or 9(b) of the Investment Company Act to serve in any capacity referred to in Section 9(a) thereof to a registered investment company or a business development company; and none of the members of the Opal Family (solely to the extent related to the Opal Business) nor, to the Knowledge of Opal Group, any person “associated” (as defined in the Investment Advisers Act) therewith who is required to be qualified, is subject to potential disqualification pursuant to Section 203 of the Investment Advisers Act to serve as an investment adviser or as a person associated with a registered investment adviser or subject to disqualification under Rule 206(4)-3 under the Investment Advisers Act; in each case, except for any such disqualification with respect to which the Opal Business or another relevant Person has received exemptive relief from the SEC or another relevant Governmental Entity; nor is there any proceeding or investigation pending or, to the Knowledge of Opal Group, threatened by any Governmental Entity that would result in any such disqualification.

(b) Except as set forth on Section 5.26(b) of the Opal Disclosure Letter, as of the date of this Agreement, (i) no exemptive Orders, “no-action” letters, or similar exemptions or regulatory relief have been obtained and (ii) except as are not material to the Opal Business, taken as a whole, no requests are pending therefor by the Opal Business or, to the Knowledge of Opal Group, any Opal Fund, excluding in each case ordinary course correspondence with the SEC or correspondence otherwise publicly filed within the SEC.

(c) Section 5.26(c) of the Opal Disclosure Letter lists each Opal Transferred Company that is registered as an investment adviser with the SEC pursuant to the Investment Advisers Act (each, an “Investment Adviser”). The Opal RIA Subsidiaries and each Opal Transferred Company has been and is in material compliance with the Investment Advisers Act and the rules and regulations promulgated thereunder, and to the extent required to be registered as an investment adviser under the Investment Advisers Act, such registration has been and is in full force and effect and to the Knowledge of Opal Group there is no basis for any disqualification, denial, suspension, or revocation thereof. No Opal Transferred Company that is not an Investment Adviser (i) is or has been an “investment adviser” required to register under the Investment Advisers Act or any other applicable Laws to be licensed or qualified as an investment adviser or (ii) is subject to any material Liability by reason of any failure to be so registered, licensed, or qualified. Any Opal Transferred Company that, in accordance with applicable SEC “no-action” letters, relies upon the registration of an Investment Adviser to satisfy its obligation to register as an investment adviser under the Investment Advisers Act has been and continues to be in material compliance with the conditions set forth in such SEC “no-action” letters for reliance thereon.

 

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(d) The Opal Family (solely to the extent related to the Opal Business) has adopted (i) a written policy regarding insider trading, (ii) a written code of ethics, as required by Rule 204A-1 under the Investment Advisers Act and, to the extent required, Rule 17j-1 under the Investment Company Act and (iii) insider trading policies, personal trading policies, and such other policies and procedures as are reasonably required in order to comply with Rule 206(4)-7 under the Investment Advisers Act, and have designated and approved an appropriate chief compliance officer in accordance with Rule 206(4)-7. Such code of ethics and insider trading, personal trading and other policies and procedures are reasonably designed to prevent violation, by the Opal Business and their “supervised persons” (as defined in the Investment Advisers Act), of the Investment Advisers Act and the rules promulgated thereunder. To the Knowledge of Opal Group, since January 1, 2018, there have been no material violations of the code of ethics, insider trading policies, personal trading policies and other material policies of the Opal Family (solely to the extent related to the Opal Business).

(e) Other than as would not result in a breach of applicable Law, none of Opal Group nor any other Opal Transferred Company (other than the Opal Broker-Dealer Subsidiary) nor any Opal Group Employee (i) is a broker, dealer, broker-dealer, bank, trust company, commodity broker-dealer, commodity trading advisor, real estate broker, insurance company, insurance broker, transfer agent or similar type of entity within the meaning of any applicable Law, or, since January 1, 2018, has acted as such in connection with any offers, sales, or distributions of securities in connection with the Opal Business, nor (ii) is required to be registered, licensed, or qualified as a bank, trust company, broker, dealer, introducing broker, commodity dealer, futures commission merchant, commodity pool operator, commodity trading advisor, real estate broker, insurance company, insurance broker, transfer agent, swaps firm, swap dealer, security-based swap dealer, major swap participant, major security-based swap participant, transfer agent, registered representative, principal, registered principal, associated person, swaps associated person, or sales person (or in a similar capacity) under the Exchange Act or other applicable Law.

(f) Since January 1, 2018, the Opal RIA Subsidiaries and the Opal Transferred Companies have (i) performed their respective investment management, advisory, and related duties and responsibilities in compliance, in all material respects with, and otherwise consistent with the Opal Fund Documentation and Client Contracts applicable to such Clients and (ii) not received any written communication from any Person regarding any actual or alleged failure to perform investment management, advisory, and related duties and responsibilities in compliance with such agreements.

Section 5.27 Opal 40 Act Funds.

(a) Other than the BDCs, (i) none of the Opal Family (solely to the extent related to the Opal Business) or the Opal Funds is a 40 Act Fund, and (ii) no other Person to whom the Opal Family (solely to the extent related to the Opal Business) renders Investment Advisory Services is a 40 Act Fund.

(b) All Investment Advisory Services rendered to a BDC by an Opal Transferred Company have been rendered pursuant to a Client Contract, and such Client Contract has been duly approved, continued and at all times has been in compliance in all material respects with Section 15 of the Investment Company Act (subject to the matters set forth on Section 5.27(b) of the Opal Disclosure Letter). Each such Client Contract has since January 1, 2018 been performed by the applicable Opal Transferred Company in accordance in all material respects with all other applicable Laws.

 

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(c) Each of the BDCs has elected pursuant to Section 54(a) of the Investment Company Act to be regulated as a business development company, and at all times since such election has satisfied the definition of business development company in Section 2(a)(48) of the Investment Company Act. Each BDC’s election to be so regulated has not been revoked or withdrawn and is in full force and effect and, to the Knowledge of Opal Group, no action has been taken by the board of directors or equity owners of such BDC to revoke or withdraw such election. Other than the BDCs, as of the date of this Agreement, no Opal Fund has elected to be regulated as a business development company under the Investment Company Act.

(d) Each BDC has, since January 1, 2018, filed all BDC Documents in compliance with the Securities Act, the Investment Company Act, the Securities Exchange Act and other applicable Laws, except as would not (i) reasonably be expected to have a material adverse effect with respect to such BDC or (ii) have an Opal Material Adverse Effect. The registration statement and prospectus for each BDC did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were or are made, not misleading.

(e) The outstanding shares, units or other interests of each BDC (i) have been issued and sold in compliance with applicable Laws in all material respects, (ii) are qualified for public offering and sale in each jurisdiction where offers are made to the extent required pursuant to applicable Laws in all material respects and (iii) have been duly authorized and validly issued and are fully paid and, to the extent applicable, non-assessable.

(f) Each BDC is governed by a board of directors, a majority of which are not “interested persons” (as defined in the Investment Company Act) of such BDC, that has been established and operated in conformity with the requirements and restrictions of Section 56(a) under the Investment Company Act.

(g) Each BDC has written policies and procedures adopted pursuant to Rule 38a-1 under the Investment Company Act that are reasonably designed to prevent material violations of the “Federal Securities Laws” (as such term is defined in Rule 38a-1(e)(1) under the Investment Company Act). There have been no “material compliance matters” (as such term is defined in Rule 38a-1(e)(2) under the Investment Company Act) for any BDC.

(h) For all taxable years since it elected to be treated as a business development company, each BDC has either elected or intends to elect to be treated as, and has qualified for taxation as, a regulated investment company taxable under Subchapter M of the Code (a “RIC”), has operated since January 1, 2020, until the date hereof in a manner consistent with the requirements for qualification and taxation as a RIC, and intends to continue to operate in such a manner as to qualify as a RIC for the current taxable year and subsequent taxable years. To the Knowledge of Opal Group, there are no circumstances that would cause any BDC not to qualify for such treatment for its current taxable year, including due to such BDC being a party to any agreement or arrangement that would require such BDC to include in income following the

 

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Closing amounts that would cause such BDC to fail the income test described in Section 851(b)(2) of the Code. Each BDC has timely filed (or caused to be timely filed) all Income Tax Returns and other material Tax Returns required to be filed by it (taking into account any applicable extensions or waivers) with any Taxing Authority and has timely paid (or caused to be paid) all material Taxes shown on such Tax Returns and all other material Taxes imposed on such BDC, in each case, other than any such Taxes that are being contested in good faith by appropriate Proceedings and for which appropriate reserves have been established in accordance with GAAP on such BDC’s financial statements. To the Knowledge of Opal Group, there is no currently pending or proposed in writing audit or examination of such Tax Returns or Taxes. There are no outstanding waivers or comparable consents given by any BDC regarding the application of the statute of limitations with respect to any material Taxes.

Section 5.28 Information Supplied. The information supplied or to be supplied, in each case, in writing, by Opal Group with respect to Opal Group and the Opal Business expressly for inclusion in the Registration Statement and the Proxy Statement/Prospectus, any other document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available and (b) (i) in the case of the Registration Statement, at the time the Registration Statement is declared effective under the Securities Act and (ii) in the case of the Proxy Statement/Prospectus, at the time the Proxy Statement/Prospectus (or any amendment thereof or supplement thereto) is first mailed to the Buyer Stockholders, or at the time of the Buyer Stockholder Meeting (in each case, subject to the qualifications and limitations set forth in the materials provided by Opal Group or that are included in such filings and/or mailings), except that, in each case, no warranty or representation is made by Opal Feeder with respect to: (A) statements made or incorporated by reference therein based on information supplied by the Buyer or Nephrite or their respective Affiliates for inclusion in such materials or (B) any projections or forecasts included in such materials.

Section 5.29 Sufficiency of Assets. The Opal Assets, together with the FIC Assets, the rights and benefits provided pursuant to this Agreement and such services and other resources that are generally available, include substantially all the assets and properties used or employed in the business presently conducted by the Opal Business, as of the date hereof, except as would not reasonably be expected to have an Opal Material Adverse Effect. Except as contemplated by Section 10.2, immediately after the consummation of the transactions contemplated by this Agreement to be effected at the Closing, after giving effect to the Opal Reorganization and assuming receipt of all consents necessary for the transfer of the Opal Assets and non-termination of any contract or advisory relationship, the Opal Transferred Companies will continue to (a) have all right, title, and interest in and to, or will have a valid right to use such Opal Assets; and (b) have the assets and rights, of the Opal Business (other than the FIC Assets) immediately after the Closing Date in substantially the same manner as presently conducted by the Opal Family, in each case except as would not reasonably be expected to have an Opal Material Adverse Effect.

 

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Article VI

REPRESENTATIONS AND WARRANTIES OF OPAL FEEDER

As an inducement to Nephrite and the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, except (x) as set forth in the applicable section of the Opal Disclosure Letter and (y) that Opal Feeder makes no representations or warranties under this Article VI with respect to the FIC Assets, Opal Feeder represents and warrants to Nephrite and the Buyer as of the date of this Agreement and as of the Closing Date (except, with respect to such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, which shall be given as of such date) as follows:

Section 6.1 Organization; Authority; Enforceability. Opal Feeder (a) is an entity validly existing, and in good standing under the Laws of the jurisdiction in which it is formed and (b) is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the character of its properties, or in which the transaction of its business, makes such qualification necessary, except where the failure to be so qualified and in good standing (or equivalent) would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Opal Feeder’s ability to consummate the transactions contemplated by this Agreement. Opal Feeder has the requisite legal entity power and authority to execute and deliver this Agreement and the Ancillary Agreements to which Opal Feeder is a party and to consummate the transactions contemplated by this Agreement and thereby. No other limited liability company or other proceedings on the part of Opal Feeder are necessary to approve and authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Opal Feeder is a party and the consummation of the transactions contemplated by this Agreement and thereby. This Agreement has been duly executed and delivered by Opal Feeder and constitutes the valid and binding agreement of Opal Feeder, enforceable against Opal Feeder in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. Opal Feeder is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

Section 6.2 Capitalization. Opal Feeder has good and valid title to all of the issued and outstanding Equity Securities of Opal Group held by it, free and clear of all Liens (other than Permitted Liens).

Section 6.3 No Breach.

(a) Except as required under the HSR Act and as contemplated by Section 10.11(e), no Permit is required to be obtained or made by or with respect to Opal Feeder in connection with the execution, delivery, and performance of this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated by this Agreement and thereby, other than the failure of which to be obtained or made would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Opal Feeder to consummate the transactions contemplated by this Agreement.

 

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(b) The execution, delivery and performance of this Agreement and each Ancillary Agreement, the consummation of the transactions contemplated by this Agreement and thereby and the fulfillment of and compliance with the respective terms of this Agreement and thereof by Opal Feeder do not and shall not (i) materially conflict with or result in a material breach or material violation of, (ii) constitute or result in a termination (or right of termination) or a material default under (whether with or without the passage of time, the giving of notice or both), (iii) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Opal Feeder or any other material assets pursuant to, (iv) create any right to payment or any other right (concurrently or with the passage of time and/or upon the occurrence of one or more events or conditions) under, or (v) result in any material change in the rights or obligations of any party under any of the following:

(i) the Governing Documents of Opal Feeder;

(ii) any Law to which Opal Feeder is subject; or

(iii) any Contract to which Opal Feeder is subject;

other than, in each case, as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Nephrite to consummate the transactions contemplated by this Agreement.

Section 6.4 Litigation. There are no (and there have not been any) Proceedings pending or, to the Knowledge of Opal Feeder, threatened against Opal Feeder, at law or in equity, or before or by any Governmental Entity except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Opal Feeder to consummate the transactions contemplated by this Agreement.

Section 6.5 Brokerage. Except as set forth on Section 6.5 of the Opal Disclosure Letter, Opal Feeder will not be liable for payment of brokerage commissions, finders’ fees, or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement to which Opal Feeder is a party or by which Opal Feeder is bound.

Section 6.6 Investment Intent.

(a) Opal Feeder understands and acknowledges that the acquisition of Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock involves substantial risk. Opal Feeder can bear the economic risk of its investment (which Opal Feeder acknowledges may be for an indefinite period) and has such knowledge and experience in financial or business matters that Opal Feeder is capable of evaluating the merits and risks of its investment in Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock.

(b) Opal Feeder is acquiring the Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock for its own account and on behalf of its Affiliates, for investment purposes only and not with a view toward, or for sale in connection with, any distribution thereof, or with any present intention of distributing or selling any Blue Owl Holdings Common Units, Blue Owl Carry Common Units or Buyer Capital Stock, in each case, in violation of the federal securities Laws, any applicable foreign or state securities Laws or any other applicable Law.

 

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(c) Opal Feeder qualifies as an “accredited investor,” as such term is defined in Rule 501(a) promulgated pursuant to the Securities Act.

(d) Opal Feeder understands and acknowledges that the issuance, sale or resale of the Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock has not been registered under the Securities Act, any United States state securities Laws or any other applicable foreign Law. Opal Feeder acknowledges that such securities may not be transferred, sold, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other provision of applicable United States federal, United States state, or other Law or pursuant to an applicable exemption therefrom. Opal Feeder acknowledges that there is no public market for the Blue Owl Holdings Common Units, Blue Owl Carry Common Units and Buyer Capital Stock and that there can be no assurance that a public market will develop.

Section 6.7 Compliance with Laws. Opal Feeder is, and has been since January 1, 2018, in compliance in all material respects with Laws applicable to its ownership of Equity Securities of Opal Group, and no uncured written notices have been received by any Opal from any Governmental Entity or any other Person alleging a material violation of any such Laws as relates to such Equity Securities.

Section 6.8 No Undisclosed Agreements or Arrangements. Other than as set forth in this Agreement and the Ancillary Agreements or as otherwise described in Section 6.8 of the Opal Disclosure Letter, as of the date of this Agreement, there are no material agreements between or among the Opal Family, the Opal Principals or the Opal Business, on the one hand, and the Nephrite Group, the Diamond Principals or the Diamond Business, on the other hand, with respect to the combination of the Diamond Business and the Opal Business or the operation of the combined businesses following the Closing.

Section 6.9 Inspections; the Buyers Representations. Opal Feeder is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Diamond Business and the Buyer. Opal Feeder has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. Opal Feeder agrees to engage in the transactions contemplated by this Agreement based upon, and has relied solely on, its own inspection and examination of the Diamond Business and the Buyer and on the accuracy of the representations and warranties set forth in Article III, Article IV, Article VII and any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement and disclaims reliance upon any express or implied representations or warranties of any nature made by Nephrite, the Buyer or their respective Affiliates or representatives, except for those set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement. Opal Feeder specifically acknowledges and agrees to Nephrite’s and the Buyer’s disclaimer of any representations or warranties other than those set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement, whether made by either Nephrite, the Buyer or any of their respective Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information

 

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made, communicated, or furnished (orally or in writing) to Opal Feeder and its Affiliates or representatives (including any opinion, information, projection, or advice that may have been or may be provided to Opal Feeder and its Affiliates or representatives by Nephrite, the Buyer or any of their respective Affiliates or representatives), other than those set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement. Opal Feeder specifically acknowledges and agrees that, without limiting the generality of this Section 6.9, neither Nephrite, the Buyer nor any of their respective Affiliates or representatives have made any representation or warranty with respect to any projections or other future forecasts. Opal Feeder specifically acknowledges and agrees that except for the representations and warranties set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement, Nephrite and the Buyer have not made any other express or implied representation or warranty with respect to Nephrite, the Buyer, their respective assets or Liabilities, the Diamond Business, the businesses of the Buyer or the transactions contemplated by this Agreement or the Ancillary Agreements.

Article VII

REPRESENTATIONS AND WARRANTIES OF THE BUYER

As an inducement to Nephrite, Opal Group, Opal Feeder and Opal Partners to enter into this Agreement and consummate the transactions contemplated by this Agreement, except as set forth (i) in the applicable section of the Buyer’s Disclosure Letter and (ii) in any Buyer SEC Filings filed or submitted on or prior to the date of this Agreement (excluding (a) any disclosures in any risk factors that do not constitute statements of fact, disclosures in any forward-looking statements disclaimer and any other disclosures that are generally cautionary, predictive or forward-looking in nature and (b) any exhibits or other documents appended thereto) (it being acknowledged that nothing disclosed in such Buyer SEC Filings will be deemed to modify or qualify the representations or warranties set forth in Section 7.1, Section 7.2, Section 7.3, Section 7.4, Section 7.6, Section 7.9, Section 7.12, Section 7.15 or in the Buyer’s Disclosure Letter), the Buyer represents and warrants to Nephrite, Opal Group, Opal Feeder and Opal Partners as of the date of this Agreement and as of the Closing Date (except, with respect to such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, which shall be given as of such date), as follows:

Section 7.1 Organization; Authorization; Enforceability. The Buyer is a corporation duly incorporated, validly existing and in good standing (or equivalent status, to the extent that such concept exists) under the Laws of its jurisdiction of incorporation. The Buyer is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the character of its properties, or in which the transaction of its business, makes such qualification necessary, except where the failure to be so qualified and in good standing (or equivalent) would not have a Buyer Material Adverse Effect. The Buyer has the requisite power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to consummate the transactions contemplated by this Agreement and thereby. The execution, delivery and performance of this Agreement, the Ancillary Agreements to which the Buyer is a party and the transactions contemplated by this Agreement and thereby have been duly approved and authorized by all requisite Buyer Board action on the part of the Buyer, including the Buyer Board’s recommendation that the Buyer Stockholders approve the Proposals (the “Buyer Board

 

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Recommendation”). No other proceedings on the part of the Buyer (including any action by the Buyer Board or the Buyer Stockholders), except for the receipt of the Required Vote, are necessary to approve and authorize the execution, delivery or performance of this Agreement and the Ancillary Agreements to which the Buyer is a party and the consummation of the transactions contemplated by this Agreement and thereby. This Agreement has been, and the Ancillary Agreements to be executed and delivered by the Buyer at Closing will be, duly executed and delivered by the Buyer and constitute valid and binding agreement of the Buyer, enforceable against the Buyer in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. The Buyer is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding. Correct and complete copies of the Governing Documents of the Buyer, as in effect on the date of this Agreement, have been made available to Nephrite and Opal Group. The Buyer is not a Foreign Person and does not permit any Foreign Person to have (w) access to any “material nonpublic technical information” (as defined in the DPA) in the possession of the Buyer, (x) membership or observer rights on the board of directors of the Buyer or the right to nominate an individual to serve on the board of directors of the Buyer, (y) any involvement, other than through the voting of shares, in the substantive decision-making of the Buyer, or (z) “control” (as defined in the DPA) of the Buyer.

Section 7.2 Capitalization.

(a) As of the date hereof, the authorized share capital of Buyer consists of (i) 500,000,000 shares of Buyer Class A Common Stock, (ii) 50,000,000 shares of Buyer Class B Common Stock, and (iii) 5,000,000 preference shares, par value $0.0001 per share (“Existing Buyer Preferred Shares”). As of the date hereof, (1) 27,500,000 shares of Buyer Class A Common Stock are and will be issued and outstanding, (2) 6,875,000 shares of Buyer Class B Common Stock are and will be issued and outstanding, (3) no Buyer Preferred Shares are and will be issued and outstanding, and (4) 14,166,666 warrants of Buyer are and will be issued and outstanding, in such amounts, type, exercise price and with such expiration date as set forth on Section 7.2(a) of the Buyer’s Disclosure Letter. The exercise price of each Buyer Public Warrant has not been reduced to an amount less than $11.50 per Buyer Public Warrant. The Equity Securities set forth in this Section 7.2(a) comprise all of the Equity Securities of the Buyer that are issued and outstanding (without giving effect to the Buyer Share Redemptions, the Domestication, or the PIPE Financing).

(b) Except as (x) set forth on Section 7.2(b) of the Buyer’s Disclosure Letter, or (y) set forth in this Agreement (including as set forth in Section 7.2(a)), the Ancillary Agreements or the Governing Documents of the Buyer:

(i) there are no outstanding options, warrants, Contracts, calls, puts, bonds, debentures, notes rights to subscribe, conversion rights or other similar rights to which the Buyer is a party or which are binding upon the Buyer providing for the offer, issuance, redemption, exchange, conversion, voting, transfer, disposition or acquisition of any of its Equity Securities;

(ii) the Buyer is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Equity Securities;

 

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(iii) the Buyer is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any of its Equity Securities;

(iv) there are no contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights in respect of Equity Securities of the Buyer; and

(v) the Buyer has not violated in any material respect any applicable securities Laws or any preemptive or similar rights created by Law, Governing Document or Contract to which the Buyer is a party in connection with the offer, sale or issuance of any of its Equity Securities.

(c) All of the issued and outstanding Equity Securities of the Buyer, have been duly authorized, validly issued, fully paid and non-assessable and free of any preemptive rights in respect thereto, and were not issued in violation of any preemptive rights, call options, rights of first refusal or similar rights of any Person or applicable Law, other than in each case Securities Liens.

(d) Except as set forth on Section 7.2(d) of the Buyer’s Disclosure Letter, the Buyer does not own, directly or indirectly, any Equity Securities, participation or voting right or other investment (whether debt, equity or otherwise) in any Person (including any Contract in the nature of a voting trust or similar agreement or understanding) or any other equity equivalents in or issued by any other Person.

(e) Upon issuance and delivery of the shares of the Buyer Capital Stock to Sellers at the Closing, such Buyer Capital Stock will (i) be duly authorized and validly issued, and fully paid and nonassessable, (ii) be issued in compliance in all material respects with applicable Law, (iii) not be issued in breach or violation of any preemptive rights or any Contract and (iv) be issued to Sellers with good and valid title, free and clear of any Liens other than Securities Liens, and the Buyer Class B Shares, Buyer Class C Shares, Buyer D Shares, Buyer E Shares and Buyer Class F Shares issued under this Agreement at the Closing, in each case, will represent the only Buyer Class B Shares, Buyer Class C Shares, Buyer D Shares, Buyer E Shares or Buyer Class F Shares, respectively, issued or outstanding.

(f) Other than up to $2,000,000 of working capital loans convertible into Existing Buyer Public Warrants at $1.50 per warrant that may be incurred during the Pre-Closing Period, the Buyer has no Liability with respect to indebtedness for borrowed money.

Section 7.3 Brokerage. Except as set forth on Section 7.3 of the Buyer’s Disclosure Letter, the Buyer has not incurred any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated by this Agreement or thereby, that would result in the obligation of Nephrite, Opal Group, Opal Feeder, Opal Partners or the Buyer to pay a finder’s fee, brokerage or agent’s commissions or other like payments.

Section 7.4 Trust Account. As of the date of this Agreement, the Buyer has at least $275,000,000 (the “Trust Amount”) in the Trust Account, with such funds invested in United States government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, and held in trust by the Trustee

 

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pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of the Buyer, enforceable in accordance with its terms. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect by the Buyer or the Trustee, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated by the Buyer. The Buyer is not party to or bound by any side letters with respect to the Trust Agreement or (except for the Trust Agreement) any Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (a) cause the description of the Trust Agreement in the Buyer SEC Documents to be inaccurate in any material respect or (b) entitle any Person (other than (i) the Buyer Stockholders who shall have exercised their rights to participate in the Buyer Share Redemptions, (ii) the underwriters of the Buyer’s initial public offering, who are entitled to the Deferred Discount (as such term is defined in the Trust Agreement) and (iii) the Buyer with respect to income earned on the proceeds in the Trust Account to cover any of its Tax obligations and up to $100,000 of interest on such proceeds to pay dissolution expenses) to any portion of the proceeds in the Trust Account. There are no Proceedings (or to the Knowledge of the Buyer, investigations) pending or, to the Knowledge of the Buyer, threatened with respect to the Trust Account.

Section 7.5 The Buyer SEC Documents; Controls.

(a) The Buyer has timely filed or furnished all material forms, reports, schedules, statements and other documents required to be filed by it with the SEC since the consummation of the initial public offering of the Buyer’s securities, together with any material amendments, restatements or supplements thereto, and all such forms, reports, schedules, statements and other documents required to be filed or furnished under the Securities Act or the Securities Exchange Act (all such forms, reports, schedules, statements and other documents filed with the SEC, the “Buyer SEC Documents”). As of their respective dates, each of the Buyer SEC Documents (including all financial statements included therein, exhibits and schedules thereto and documents incorporated by reference therein), complied in all material respects with the applicable requirements of the Securities Act, or the Securities Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Buyer SEC Documents. None of the Buyer SEC Documents contained, when filed or, if amended prior to the date of this Agreement, as of the date of such amendment with respect to those disclosures that are amended, any 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 light of the circumstances under which they were made, not misleading. To the Knowledge of the Buyer, as of the date of this Agreement, (i) none of the Buyer SEC Documents are the subject of ongoing SEC review or outstanding SEC comment and (ii) neither the SEC nor any other Governmental Entity is conducting any investigation or review of any Buyer SEC Documents.

(b) Each of the financial statements of the Buyer included in the Buyer SEC Documents, including all notes and schedules thereto, complied in all material respects, when filed or if amended prior to the date of this Agreement, as of the date of such amendment, with the rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and fairly present in all material respects in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal year-end audit adjustments) the

 

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financial position of the Buyer, as of their respective dates and the results of operations and the cash flows of the Buyer, for the periods presented therein. Each of the financial statements of the Buyer included in the Buyer SEC Documents were derived from the books and records of the Buyer, which books and records are, in all material respects, correct and complete and have been maintained in all material respects in accordance with commercially reasonable business practices.

(c) No notice of any SEC review or investigation of the Buyer or the Buyer SEC Documents has been received by the Buyer. Since the consummation of its initial public offering, all comment letters received by the Buyer from the SEC or the staff thereof and all responses to such comment letters filed by or on behalf of the Buyer are publicly available on the SEC’s EDGAR website.

(d) Since the consummation of the initial public offering of the Buyer’s securities, the Buyer has timely filed all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Securities Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any of the Buyer SEC Documents. Each such certification is correct and complete. The Buyer maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Securities Exchange Act; such controls and procedures are reasonably designed to ensure that all material information concerning the Buyer is made known on a timely basis to the individuals responsible for the preparation of the Buyer’s SEC Filings. As used in this Section 7.5, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

(e) The Buyer has designed and maintains a system of internal controls over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) of the Securities Exchange Act, sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Buyer maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability and (iii) access to assets is permitted only in accordance with management’s general or specific authorization.

Section 7.6 Information Supplied; Registration Statement. The information supplied or to be supplied by the Buyer for inclusion in the Registration Statement and the Proxy Statement/Prospectus, the Additional Buyer Filings, any other the Buyer SEC Filing, any document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available, (b) (i) in the case of the Registration Statement, at the time the Registration Statement is declared effective under the Securities Act and (ii) in the case of the Proxy Statement/Prospectus, at the time the Proxy Statement/Prospectus (or any amendment thereof or supplement thereto) is first mailed to the Buyer Stockholders, or at the time of the Buyer Stockholder Meeting and (c) the Closing (in each case, subject to the qualifications and limitations set forth in the materials

 

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provided by the Buyer or that are included in such filings and/or mailings), except that no warranty or representation is made by the Buyer with respect to statements made or incorporated by reference therein based on information supplied by Nephrite, Opal Group or their Affiliates for inclusion therein. The Registration Statement, the Proxy Statement/Prospectus, the Additional Buyer Filings and any other Buyer SEC Filing will comply in all material respects with the applicable requirements of the Securities Act and the Securities Exchange Act (as applicable) and the rules and regulations thereunder.

Section 7.7 Litigation. Except as set forth on Section 7.7 of the Buyer’s Disclosure Letter, as of the date of this Agreement, (a) there are no (and since August 20, 2020, there have not been any) Proceedings (i) seeking to revoke, reconsider the grant of, cancel, suspend or modify, or declare any of the Permits necessary for the operation of the Buyer invalid, (ii) pending or, to the Knowledge of the Buyer, threatened against the Buyer at law or in equity, or before or by any Governmental Entity, including any Proceedings that seek to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated by this Agreement or by the Ancillary Agreements or (iii) any material Orders from any Governmental Entity with respect to the Buyer and the Buyer has not been notified by any Governmental Entity in writing to the effect that such Governmental Entity is contemplating issuing or requesting any such material Order, in each case, except as has not had or would not reasonably be expected to result in a Buyer Material Adverse Effect.

Section 7.8 Listing. Since October 27, 2020, the Buyer has complied, and is currently in compliance, with all applicable listing and corporate governance rules and regulations of the New York Stock Exchange (“NYSE”), in each case, in all material respects. The issued and outstanding Existing Buyer Public Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on NYSE under the symbol “ATACU”. The issued and outstanding Existing Buyer Class A Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed for trading on NYSE under the symbol “ATAC”. The issued and outstanding Existing Buyer Public Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on NYSE under the symbol “ATACW”. As of the date of this Agreement, there is no Proceeding pending or, to the Knowledge of the Buyer, threatened against the Buyer by NYSE or the SEC with respect to any intention by such entity to deregister the Existing Buyer Public Securities or prohibit or terminate the listing of the Existing Buyer Public Securities on NYSE. The Buyer has not received any written or, to the Knowledge of Buyer, oral deficiency notice from NYSE relating to the continued listing requirements of the Existing Buyer Public Securities. None of the Buyer or any of its Affiliates has taken any action that is designed to terminate the registration of the Existing Buyer Public Securities under the Securities Exchange Act.

Section 7.9 Investment Company. The Buyer is not an “investment company” within the meaning of the Investment Company Act. The Buyer constitutes an “emerging growth company” within the meaning of the JOBS Act.

 

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Section 7.10 Authorization; No Breach.

(a) Except as set forth in Section 7.10(a) of the Buyer’s Disclosure Letter, the execution, delivery and performance of this Agreement does not require the Buyer to obtain the Consent, waiver or approval of, or make any filing, notification or registration with, any third party or Governmental Entity.

(b) Except as required under the HSR Act, no Permit is required to be obtained or made by or with respect to the Buyer in connection with the execution, delivery, and performance of this Agreement or the Ancillary Agreements or the transactions contemplated by this Agreement and thereby, other than the failure of which to be obtained or made would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of the Buyer to consummate the transactions contemplated by this Agreement.

(c) The execution, delivery and performance of this Agreement and each Ancillary Agreement to which the Buyer is a party, the consummation of the transactions contemplated by this Agreement and thereby and the fulfillment of and compliance with the respective terms of this Agreement and thereof by the Buyer do not and shall not (i) materially conflict with or result in a material breach or material violation of, (ii) constitute or result in a termination (or right of termination) or a material default under (whether with or without the passage of time, the giving of notice or both), (iii) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of the Buyer or any other material assets pursuant to, (iv) create any right to payment or any other right (concurrently or with the passage of time and/or upon the occurrence of one or more events or conditions) under, or (v) result in any material change in the rights or obligations of any party under any of the following:

(i) the Governing Documents of the Buyer;

(ii) any Law to which the Buyer is subject; or

(iii) any material Contract of the Buyer.

other than, in each case, as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of the Buyer to consummate the transactions contemplated by this Agreement.

Section 7.11 Business Activities.

(a) Since its organization, other than as described in the Buyer SEC Documents, the Buyer has not conducted any material business activities other than activities directed toward the accomplishment of a Business Combination. Except as set forth in the Buyer Governing Documents, there is no Contract, commitment, or Order binding upon the Buyer or to which the Buyer is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of the Buyer or any acquisition of property by the Buyer or the conduct of business by the Buyer after the Closing, other than such effects, individually or in the aggregate, which are not, and would not reasonably be expected to be, material to the Buyer.

(b) Except for this Agreement and the transactions contemplated by this Agreement, the Buyer has no interests, rights, obligations or Liabilities with respect to, and the Buyer is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination.

 

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(c) The Buyer has no material Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, other than (i) Liabilities set forth in or reserved against in the balance sheet of the Buyer as of September 1, 2020 (the “Buyer Balance Sheet”); (ii) Liabilities which have arisen after the date of the Buyer Balance Sheet in the Ordinary Course of Business (none of which results from, arises out of, or was caused by any breach of warranty, breach of Contract or infringement or violation of Law); (iii) Liabilities arising under this Agreement, the Ancillary Agreements and/or the performance by the Buyer of its obligations under this Agreement or thereunder; or (iv) for fees, costs and expenses for advisors and Affiliates of the Buyer or the Sponsor, including with respect to legal, accounting or other advisors incurred by the Buyer in connection with the transactions contemplated by this Agreement.

(d) Certain Subsidiaries. Each of Blue Owl Holdings, Blue Owl Carry, Blue Owl GP, Merger Sub 1 and Merger Sub 2:

(i) has been or will be formed solely for the purpose of executing and delivering this Agreement and/or the Ancillary Agreements and consummating the transactions contemplated by this Agreement or thereby (as applicable);

(ii) is, or when formed will be, and at all times prior to the Closing will be, directly or indirectly, wholly-owned by the Buyer;

(iii) has not engaged, and prior to the Closing will not engage, in any business or activity other than activities related to its corporate organization and the execution and delivery of this Agreement and/or the Ancillary Agreements and the consummation of the transactions contemplated by this Agreement or thereby (as applicable);

(iv) other than its Governing Documents, this Agreement and any Ancillary Agreement (as applicable) such Person is not, and at all times prior to the Closing will not be, party to or bound by any Contract, commitment or Order;

(v) other than the performance of its obligations under its Governing Documents, this Agreement and/or any Ancillary Agreement (as applicable), such Person, has no Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP.

Section 7.12 Acquisition Intent.

(a) The Buyer understands and acknowledges that the acquisition of economic units in Blue Owl Holdings and Blue Owl Carry and the economic general partnership interests in Blue Owl Holdings and Blue Owl Carry involves substantial risk. The Buyer can bear the economic risk of its acquisition (which the Buyer acknowledges may be for an indefinite period) and has such Knowledge and experience in financial or business matters that the Buyer is capable of evaluating the merits and risks of its acquisition of economic units in Blue Owl Holdings and Blue Owl Carry and the economic general partnership interests in Blue Owl Holdings and Blue Owl Carry.

 

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(b) The Buyer is acquiring the economic units in Blue Owl Holdings and Blue Owl Carry and the economic general partnership interests in Blue Owl Holdings and Blue Owl Carry for its own account, for the purpose of engaging, through its Subsidiaries, in the business of such Subsidiaries only and not with a view toward, or for sale in connection with, any distribution thereof, or with any present intention of distributing or selling any economic units in Blue Owl Holdings and Blue Owl Carry or economic general partnership interests in Blue Owl Holdings and Blue Owl Carry, in each case, in violation of the federal securities Laws, any applicable foreign or state securities Laws or any other applicable Law.

(c) The Buyer qualifies as an “accredited investor,” as such term is defined in Rule 501(a) promulgated pursuant to the Securities Act.

(d) The Buyer understands and acknowledges that the economic units in Blue Owl Holdings and Blue Owl Carry and the economic general partnership interests in Blue Owl Holdings and Blue Owl Carry have not been registered under the Securities Act, any United States state securities Laws or any other applicable foreign Law. The Buyer acknowledges that such securities may not be transferred, sold, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other provision of applicable United States federal, United States state, or other Law or pursuant to an applicable exemption therefrom. The Buyer acknowledges that there is no public market for the economic units in Blue Owl Holdings and Blue Owl Carry or the economic general partnership interests in Blue Owl Holdings and Blue Owl Carry and that there can be no assurance that a public market will develop.

Section 7.13 Tax Matters. Except as set forth on Section 7.13 of the Buyer’s Disclosure Letter:

(a) The Buyer has filed all Income Tax Returns and other material Tax Returns required to be filed by it on or prior to the Closing Date pursuant to applicable Laws (taking into account any validly obtained extension of time within which to file). All Income Tax Returns and other material Tax Returns filed by the Buyer are correct and complete in all material respects and have been prepared in material compliance with all applicable Laws. All material amounts of Taxes due and payable by the Buyer (taking into account applicable extensions) and for which the applicable statute of limitations remains open have been paid (whether or not shown as due and payable on any Tax Return).

(b) The Buyer has properly withheld or collected and paid to the applicable Taxing Authority all material amounts of Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, individual independent contractor, creditor, equityholder or other third party and all material sales, use, ad valorem, value added, and similar Taxes and has otherwise complied in all material respects with all applicable Laws relating to the withholding, collection and payment of such Taxes.

(c) The Buyer has not received any written claim made by a Taxing Authority in a jurisdiction where the Buyer does not file a particular type of Tax Return, or pay a particular type of Tax, that the Buyer is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction that has not been settled or resolved.

 

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(d) The Buyer is not currently and has not been within the past five years the subject of any Tax Proceeding with respect to any Taxes or Tax Returns of or with respect to the Buyer, no such Tax Proceeding is pending, and, to the Knowledge of the Buyer, no such Tax Proceeding has been threatened in writing, in each case, that has not been settled or resolved. The Buyer has not commenced a voluntary disclosure proceeding in any jurisdiction that has not been resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against the Buyer have been paid, settled or withdrawn, and, to the Knowledge of the Buyer, no such deficiency has been threatened or proposed in writing against the Buyer.

(e) Except for extensions resulting from the extension of the time to file any applicable Tax Return, there are no outstanding agreements extending or waiving the statute of limitations applicable to any Tax or Tax Return with respect to the Buyer or extending a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no written request for any such waiver or extension is currently pending. The Buyer is not the beneficiary of any extension of time (other than a validly obtained extension of time not requiring the consent of the applicable Governmental Entity or other extension of time obtained in the Ordinary Course of Business) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, or other similar ruling or request has been granted or issued by, or is pending with, any Governmental Entity.

(f) The Buyer will not be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) beginning after the Closing Date (determined with and without regard to the transactions contemplated by this Agreement) as a result of: (i) an installment sale transaction occurring on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a disposition occurring on or before the Closing Date reported as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii) any prepaid amounts received or deferred revenue realized, accrued or received, in each case, outside the Ordinary Course of Business on or prior to the Closing Date; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; or (vi) as a result of application of Code Section 965 or any similar provision of U.S. state or local or non-U.S. Tax Law.

(g) The Buyer has not deferred any “applicable employment taxes” under Section 2302 of the CARES Act, and the Buyer has properly complied with all requirements for obtaining for all material credits that the Buyer has claimed under Section 2301 of the CARES Act or any similar provision of U.S. state or local or non-U.S. Tax Law.

(h) There is no Lien for Taxes on any of the assets of the Buyer, other than Permitted Liens.

 

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(i) The Buyer has not been a member of an affiliated group as defined in Section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under state, local or non-U.S. Law) and does not have any liability for Taxes of any other Person as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to this Agreement or any of the Ancillary Agreements, if any). The Buyer is not party to or bound by any Tax Sharing Agreement except for any Ordinary Course Tax Sharing Agreement.

(j) The unpaid Taxes of the Buyer do not materially exceed reserves for Tax Liabilities as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Buyer in filing its Tax Returns.

(k) Since the date of its formation, the Buyer has been classified as a corporation for U.S. federal, state and local income Tax purposes.

(l) To the Knowledge of the Buyer, the Buyer has not taken or agreed to take any action not contemplated by this Agreement and/or any Ancillary Agreements that could reasonably be expected to prevent, impair or impede the Intended Tax Treatment.

Section 7.14 Compliance with Laws. The Buyer is, and has been since August 20, 2020, in compliance in all material respects with all Laws applicable to the conduct of the business of the Buyer, and no uncured written notices have been received by the Buyer from any Governmental Entity or any other Person alleging a material violation of any such Laws.

Section 7.15 Inspections; Nephrite and Opal Representations. The Buyer is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Diamond Business and Opal Business. The Buyer has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. The Buyer agrees to engage in the transactions contemplated by this Agreement based upon, and has relied solely on, its own inspection and examination of the Diamond Business and the Opal Business and on the accuracy of the representations and warranties set forth in Article III, Article IV, Article V, Article VI, Article VIII and any Ancillary Agreement or certificate delivered by Nephrite or Opal Group pursuant to this Agreement and disclaims reliance upon any express or implied representations or warranties of any nature made by the Nephrite Group, Opal Family or their respective Affiliates or representatives, except for those set forth in Article III, Article IV, Article V, Article VI, Article VIII and in any Ancillary Agreement or certificate delivered by Nephrite or Opal pursuant to this Agreement.

Section 7.16 Subscription Agreements.

(a) The Buyer has delivered to Nephrite and Opal Group true, correct and complete copies of each of the Subscription Agreements entered into by the Buyer, Nephrite and Opal Group with the applicable Equity Financing Sources named therein on or prior to the date of this Agreement, pursuant to which certain Equity Financing Sources have committed to provide equity financing to the Buyer solely for purposes of consummating the transactions contemplated by this Agreement in the aggregate amount of $1,500,000,000 (the “PIPE Investment Amount”). With respect to each such Equity Financing Source, the Subscription Agreement with such Equity

 

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Financing Source is in full force and effect and has not been withdrawn or terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by the Buyer. Each Subscription Agreement is a legal, valid and binding obligation of the Buyer and, to the Knowledge of the Buyer, each Equity Financing Source, and neither the execution or delivery by any party thereto nor the performance of any party’s obligations under any such Subscription Agreement violates any Laws. Each such Subscription Agreement provides that Nephrite and Opal Group is a party thereto and is entitled to enforce such agreements against the Equity Financing Source. There are no other agreements, side letters, or arrangements between the Buyer and any Equity Financing Source relating to any such Subscription Agreement that would reasonably be expected to affect the obligation of such Equity Financing Sources to contribute to the Buyer the applicable portion of the PIPE Investment Amount set forth in the Subscription Agreement of such Equity Financing Sources, and, as of the date of this Agreement, to the knowledge of the Buyer, there are no facts or circumstances that would reasonably be expected to result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the PIPE Investment Amount not being available to the Buyer, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of the Buyer under any material term or condition of any such Subscription Agreement and, as of the date of this Agreement, the Buyer has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of closing to be satisfied by it contained in any such Subscription Agreement. Such Subscription Agreements contain all of the conditions precedent to the obligations of the Equity Financing Sources to contribute to the Buyer the applicable portion of the PIPE Investment Amount set forth in such Subscription Agreements on the terms therein.

(b) As of the date of this Agreement, no fees, consideration or other discounts are payable or have been agreed to by the Buyer or any of its Subsidiaries to any Equity Financing Source, except as set forth in the Subscription Agreements.

Section 7.17 Employee Matters. The Buyer has never had any employees, and other than reimbursement of any out-of-pocket expenses incurred by the Buyer’s officers and directors in connection with activities on the Buyer’s behalf in an aggregate amount not in excess of the amount of cash held by the Buyer outside of the Trust Account, the Buyer does not have any unsatisfied material Liability with respect to any employee thereof. The Buyer does not sponsor, maintain, contribute to, have any obligation to contribute to, or have any direct or indirect Liability under any Employee Benefit Plan.

Section 7.18 Assets; Title to Assets. Other than this Agreement, general working capital and the Trust Agreement and the applicable rights and interests in and to the Trust Account as set forth therein, the Buyer does not own any assets. Subject to the restrictions on use of the Trust Account set forth in the Trust Agreement, the Buyer owns good and marketable title to, or holds a valid leasehold interest in, or a valid license to use, all of the assets used by the Buyer in the operation of its business and which are material to the Buyer, in each case, free and clear of any Liens (other than Permitted Liens).

 

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Section 7.19 Related Person Transaction. Except as set forth in Section 7.19 of the Buyer’s Disclosure Letter, and other than the private placement of securities in connection with the Buyer’s initial public offering, there are no transactions or Contracts, or series of related transactions or Contracts (each, a “Sponsor Related Party Transaction”), between Sponsor or its Related Persons, on the one hand, and the Buyer, any officer, director, manager or Affiliate of the Buyer or, to the Knowledge of the Buyer, any of their respective “associates” or “immediate family” members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, required to be disclosed by the Buyer in the Buyer SEC Reports pursuant to Item 404 of Regulation S-K. The Buyer has made available to Nephrite and Opal Group true, correct and complete copies of each Contract or other relevant documentation (including any amendments or modifications thereto) as of the date of this Agreement with respect to any Sponsor Related Party Transaction.

Section 7.20 No Undisclosed Agreements or Arrangements. Other than as set forth in this Agreement and the Ancillary Agreements or as otherwise described in Section 7.20 of the Buyer Disclosure Letter, as of the date of this Agreement, there are no material agreements between or among the Opal Family, the Opal Principals, the Opal Business, the Nephrite Group, the Diamond Principals or the Diamond Business, on the one hand, and Buyer or any of its Affiliates, on the other hand, with respect to the combination of the Diamond Business and the Opal Business or the operation of the combined businesses following the Closing.

Article VIII

REPRESENTATIONS AND WARRANTIES OF OPAL PARTNERS

As an inducement to Nephrite and the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, except (x) as set forth in the applicable section of the Opal Disclosure Letter and (y) that Opal Partners makes no representations or warranties under this Article VIII with respect to the FIC Assets, Opal Partners represents and warrants to Nephrite and the Buyer as of the date of this Agreement and as of the Closing Date (except, with respect to such representations and warranties that by their terms speak specifically as of the date of this Agreement or another date, which shall be given as of such date) as follows:

Section 8.1 Organization; Authority; Enforceability. Opal Partners (a) is an entity validly existing, and in good standing under the Laws of the jurisdiction in which it is formed and (b) is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the character of its properties, or in which the transaction of its business, makes such qualification necessary, except where the failure to be so qualified and in good standing (or equivalent) would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Opal Partners’ ability to consummate the transactions contemplated by this Agreement. Opal Partners has the requisite legal entity power and authority to execute and deliver this Agreement and the Ancillary Agreements to which Opal Partners is a party and to consummate the transactions contemplated by this Agreement and thereby. No other limited partnership or other proceedings on the part of Opal Partners are necessary to approve and authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements to which Opal Partners is a party and the consummation of the transactions contemplated by this Agreement and thereby. This Agreement has been duly executed and delivered by Opal Partners and constitutes the valid and binding agreement of Opal Partners, enforceable against Opal Partners in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. Opal Partners is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

 

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Section 8.2 No Breach.

(a) Except as required under the HSR Act and as contemplated by Section 10.11(e), no Permit is required to be obtained or made by or with respect to Opal Partners in connection with the execution, delivery, and performance of this Agreement or the Ancillary Agreements or the consummation of the transactions contemplated by this Agreement and thereby, other than the failure of which to be obtained or made would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Opal Partners to consummate the transactions contemplated by this Agreement.

(b) The execution, delivery and performance of this Agreement and each Ancillary Agreement, the consummation of the transactions contemplated by this Agreement and thereby and the fulfillment of and compliance with the respective terms of this Agreement and thereof by Opal Partners do not and shall not (i) materially conflict with or result in a material breach or material violation of, (ii) constitute or result in a termination (or right of termination) or a material default under (whether with or without the passage of time, the giving of notice or both), (iii) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Opal Partners or any other material assets pursuant to, (iv) create any right to payment or any other right (concurrently or with the passage of time and/or upon the occurrence of one or more events or conditions) under, or (v) result in any material change in the rights or obligations of any party under any of the following:

(i) the Governing Documents of Opal Partners;

(ii) any Law to which Opal Partners is subject; or

(iii) any Contract to which Opal Partners is subject;

other than, in each case, as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Opal Partners to consummate the transactions contemplated by this Agreement.

Section 8.3 Litigation. There are no (and there have not been any) Proceedings pending or, to the Knowledge of Opal Partners, threatened against Opal Partners, at law or in equity, or before or by any Governmental Entity except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of Opal Partners to consummate the transactions contemplated by this Agreement.

Section 8.4 Brokerage. Except as set forth on Section 8.4 of the Opal Disclosure Letter, Opal Partners will not be liable for payment of brokerage commissions, finders’ fees, or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement to which Opal Partners is a party or by which Opal Partners is bound.

Section 8.5 Inspections; Buyers Representations. Opal Partners is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Diamond Business and the Buyer. Opal Partners has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the

 

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execution, delivery and performance of this Agreement. Opal Partners agrees to engage in the transactions contemplated by this Agreement based upon, and has relied solely on, its own inspection and examination of the Diamond Business and the Buyer and on the accuracy of the representations and warranties set forth in Article III, Article IV, Article VII and any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement and disclaims reliance upon any express or implied representations or warranties of any nature made by Nephrite, the Buyer or their respective Affiliates or representatives, except for those set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement. Opal Partners specifically acknowledges and agrees to Nephrite’s and the Buyer’s disclaimer of any representations or warranties other than those set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement, whether made by either Nephrite, the Buyer or any of their respective Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Opal Partners and its Affiliates or representatives (including any opinion, information, projection, or advice that may have been or may be provided to Opal Partners and its Affiliates or representatives by Nephrite, the Buyer or any of their respective Affiliates or representatives), other than those set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement. Opal Partners specifically acknowledges and agrees that, without limiting the generality of this Section 8.5, neither Nephrite, the Buyer nor any of their respective Affiliates or representatives have made any representation or warranty with respect to any projections or other future forecasts. Opal Partners specifically acknowledges and agrees that except for the representations and warranties set forth in Article III, Article IV, Article VII and in any Ancillary Agreement or certificate delivered by Nephrite or the Buyer pursuant to this Agreement, Nephrite and the Buyer have not made any other express or implied representation or warranty with respect to Nephrite, the Buyer, their respective assets or Liabilities, the Diamond Business, the businesses of the Buyer or the transactions contemplated by this Agreement or the Ancillary Agreements.

Article IX

INTERIM OPERATING COVENANTS

Section 9.1 Interim Operating Covenants of Nephrite.

(a) From the date of this Agreement until the earlier of: (1) the date this Agreement is terminated in accordance with Article XIII and (2) the Closing Date (such period, the “Pre-Closing Period”), unless the Buyer and Opal Group shall otherwise give prior consent (which consent shall not be unreasonably withheld, conditioned or delayed) in writing and except (x) as specifically contemplated by this Agreement or the Ancillary Agreements (including the Diamond Reorganization and the transactions contemplated by Section 10.15) or as required by applicable Laws, (y) as set forth on Section 9.1(a) of the Diamond Disclosure Letter or (z) other than in respect of the restrictions set forth in subclauses (i), (iii), (iv), (v), (ix), (x), (xii), (xiv), (xvi), (xviii), (xix), (xx), (xxi) or (xxiii) in respect of the foregoing to the extent that any action is reasonably required to be taken or omitted to be taken in response to or related to the actual or anticipated effect on the Diamond Business of COVID-19 or any COVID-19 Measures, in each case with respect to this clause (z) in connection with or in response to COVID-19, Nephrite shall

 

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(i) cause the Diamond Business to be conducted and operated in all material respects in the Ordinary Course of Business and (ii) use its commercially reasonable efforts to (A) preserve the Diamond Business and its relationships (including relationships with Clients of the Diamond Business) in all material respects (for the avoidance of doubt, subject to Nephrite’s compliance with its obligations under Section 10.1, the failure to obtain any consent from any Client of the Diamond Business shall not constitute a breach of this clause (ii)(A)) and (B) keep available the service of the Diamond Business Employees who remain employed in the Diamond Business or who do not resign for any reason (provided that none of Nephrite or its Affiliates shall be required to incur any cost or expense to do so in excess of the compensation paid to the Diamond Business Employees in the Ordinary Course of Business), and Nephrite Group (solely to the extent related to the Diamond Business (and excluding with respect to the Excluded Diamond Assets)) shall not, and shall cause the Diamond Transferred Companies not to:

(i) amend or otherwise modify any of the Governing Documents of any Diamond Transferred Company in any manner that would be adverse in any material respect to any other Party to this Agreement, except as otherwise required by Law or consented to by such other Party;

(ii) make any material changes to the accounting policies, methods or practices of the Diamond Business, other than as required by GAAP, applicable Law or any Governmental Entity with competent jurisdiction;

(iii) sell, issue, redeem, assign, transfer, pledge (other than in connection with existing credit facilities), convey or otherwise dispose of (x) any Equity Securities of any Diamond Transferred Company or (y) any options, warrants, rights of conversion or other rights or agreements, arrangements or commitments obligating any Diamond Transferred Company to issue, deliver or sell any Equity Securities of any Diamond Transferred Company;

(iv) declare, make or pay any non-cash dividend or other non-cash distribution by a Diamond Transferred Company to any equityholder of any Diamond Transferred Company, other than to another Diamond Transferred Company;

(v) adjust, split, combine or reclassify any Equity Securities of a Diamond Transferred Company;

(vi) (x) incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness (other than (A) additional Indebtedness under existing credit facilities, (B) capital leases entered into in the Ordinary Course of Business, and (C) Indebtedness that will be accounted for in the Diamond Indebtedness Amount), (y) make any advances or capital contributions to, or investments in, any Person, other than a Diamond Transferred Company or a Diamond Fund (or any of its Subsidiaries) or otherwise in the Ordinary Course of Business, or (z) amend or modify in any material respect any Indebtedness;

 

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(vii) with respect to the Diamond Business, commit to, authorize or enter into any agreement in respect of, any capital expenditure (or series of commitments to make such capital expenditures), other than capital expenditures in an amount not to exceed $5,000,000, excluding for this purpose, capital commitments to Diamond Funds raised prior to the Closing or increases of capital commitments to existing Diamond Funds;

(viii) enter into any material amendment or termination (other than an expiration in accordance with the terms thereof) or waive compliance with any material term of any Diamond Material Contract or enter into any Contract that if entered into prior to the date hereof would be a Diamond Material Contract (excluding, for these purposes, a Client Contract), in each case other than in the Ordinary Course of Business and solely to the extent such amendment, termination or waiver would not reasonably be expected to materially and adversely impact the Diamond Business, taken as a whole;

(ix) other than assets acquired in the Ordinary Course of Business, acquire the business, properties or assets, including Equity Securities of another Person (other than in respect of a general partner commitment of a Diamond Fund), except, in each case, for acquisitions for which consideration in an aggregate amount (for all such acquisitions) is not greater than $5,000,000 and the consideration for which is payable only in cash, so long as, based upon the advice of Nephrite’s accountants, such acquisition, individually or in the aggregate, would not require any additional disclosure pursuant to the rules and regulations adopted by PCAOB (whether through merger, consolidation, share exchange, business combination or otherwise);

(x) adopt or effect any merger, plan of complete or partial liquidation, dissolution, recapitalization or reorganization, or voluntarily subject to any material Lien, any of the material rights or material assets owned by, or leased or licensed to, any Diamond Transferred Company or otherwise in respect of the Diamond Business, except for (w) Permitted Liens, (x) Liens under existing credit facilities or other Indebtedness permitted pursuant to Section 9.1(a)(vi), (y) liquidations or dissolutions in the Ordinary Course of Business and (z) as required or contemplated by this Agreement;

(xi) compromise, commence or settle any pending or threatened Proceeding (u) that includes the admission of wrongdoing with respect to the Diamond Business, (v) that does not include a full release of claims, (w) involving payments (exclusive of attorney’s fees) by the Diamond Business not covered by insurance in excess of $1,000,000 in any single instance or in excess of $5,000,000 in the aggregate, (x) granting injunctive or other equitable remedy against the Diamond Business, (y) which imposes any material restrictions, after the Closing, on the operations of the Diamond Business or (z) by any third party Person which relates to the transactions contemplated by this Agreement;

(xii) except as required under applicable Law, the terms of any Diamond Employee Benefit Plan existing as of the date of this Agreement or in the Ordinary Course of Business (A) materially increase or decrease in any manner (including in respect of the terms and conditions related thereto) the compensation, benefits, bonus, severance or termination pay of any current or former Diamond Business Employee or any director or individual service provider of the Diamond Business, other than annual merit increases of no more than 10% to any such individuals in the Ordinary Course of Business and

 

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consistent with past practice (it being acknowledged and agreed that any merit increases previously awarded but not effective until January 1, 2021 and any bonuses accrued for 2020 but not yet paid are permitted under this Section 9.1), (B) (other than in connection with any newly hired employees with annual base compensation (or annual base wages or fees) less than $300,000 who were hired to fill vacant positions in the Ordinary Course of Business), become a party to, establish, adopt, materially amend (other than as required by applicable Law or as part of an annual renewal for health and/or welfare benefits; provided that such annual renewal does not materially increase the expense of maintaining such plan), commence participation in, or terminate any Diamond Employee Benefit Plan (excluding any Diamond Affiliate Employee Benefit Plan that does not provide compensation or benefits to any current or former Diamond Business Employee or any director or individual service provider of the Diamond Business), (C) accelerate the vesting or lapsing of restrictions with respect to any equity or equity-based compensation or other long-term incentive compensation under any Diamond Employee Benefit Plan, (D) grant any new awards under any Diamond Employee Benefit Plan, (E) amend or modify any outstanding award under any Diamond Employee Benefit Plan, (F) enter into, amend or terminate any CBA, or recognize or certify any labor union, works council, labor organization or employee representative as the bargaining representative for any Diamond Business Employees, (G) forgive any loans, or issue any loans (other than advances issued in the Ordinary Course of Business) to any Diamond Business Employee or any director or individual consultants of the Diamond Business, (H) hire or engage any new employee or consultant who would be a Diamond Business Employee or consultant of the Diamond Business or terminate the employment or engagement, other than for “cause,” of any employee or consultant if such new employee or consultant is expected to receive annual base compensation (or annual base wages or fees) in excess of $300,000, (I) terminate, modify, amend or waive any restrictive covenants agreement or any term thereof in order to make such agreement or term less restrictive, (J) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions which would trigger notice requirements under the WARN Act, or (K) transfer, or change the employment duties of, any individual who, as of the date of this Agreement (x) is a Diamond Business Employee, such that the individual is no longer a Diamond Business Employee, or (y) is not a Diamond Business Employee, such that the individual becomes a Diamond Business Employee;

(xiii) sell, lease, assign, transfer, convey, license, sublicense, covenant not to assert, permit to lapse, abandon, allow to lapse, or otherwise dispose of, create, grant or issue any Liens (other than Permitted Liens), in or on, any material rights or assets owned by, or leased or licensed to, the Diamond Business, other than (y) in the Ordinary Course of Business, (z) assets with an aggregate fair market value less than $5,000,000;

(xiv) disclose any trade secrets and any other material confidential information relating to the Diamond Business (other than pursuant to a written confidentiality agreement with provisions restricting the use and disclosure of such trade secrets and confidential information);

 

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(xv) fail to take any action required to maintain (in all material respects) any material insurance policies of the Nephrite Group (solely as they relate to the Diamond Business) in force (other than (i) substitution of an insurance policy by an insurance policy with a substantially similar coverage or (ii) with respect to any policy that covers any asset or matter that has been disposed or is no longer subsisting or application), or knowingly take or omit to take any action that could reasonably result in any such insurance policy being void or voidable (other than (i) substitution of an insurance policy by an insurance policy with a substantially similar coverage, (ii) with respect to any policy that covers any asset or matter that has been disposed or is no longer subsisting or in application, (iii) actions in the Ordinary Course of Business, or (iv) actions set forth on Section 9.1(a)(xv) of the Diamond Disclosure Letter);

(xvi) enter into a new line of business within the Diamond Business;

(xvii) amend or otherwise modify in any material respect any existing material risk management procedures or material compliance procedures or policies as they relate to the Diamond Business in a manner that would loosen restrictions on monitoring such business, other than in the Ordinary Course of Business to ease administrative burdens or as required by Law;

(xviii) accelerate or take any action for the purpose of accelerating the payment or receipt of any management fees, Promote Distributions or other amounts payable by a Diamond Fund to Nephrite or its Affiliates;

(xix) enter into any agreement that materially limits, curtails or restricts the kinds of businesses which the Diamond Business may conduct or the Persons with whom the Diamond Business can compete;

(xx) terminate any Client Contract of the Diamond Business;

(xxi) enter into, renew or modify any Diamond Prohibited Affiliate Transaction;

(xxii) except to the extent required by applicable Law, (1) make, change or revoke any material election relating to Taxes other than in the Ordinary Course of Business, (2) enter into any agreement, settlement or compromise with any Taxing Authority relating to a material amount of Taxes, other than in the Ordinary Course of Business, (3) consent to any extension or waiver of the statutory period of limitations applicable to any material Tax matter not disclosed in Section 9.1(a)(xxii) of the Diamond Disclosure Letter (other than extensions resulting from the extension of the time to file any applicable Tax Return), (4) file any amended material Tax Return, (5) fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, (6) fail to pay any material amount of Tax as it becomes due, (7) enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement), (8) surrender any right to claim any refund of a material amount of Taxes, or (9) take any action that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or

(xxiii) agree or commit to do any of the foregoing.

 

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(b) Nothing contained in this Agreement shall be deemed to give the Buyer or Opal Group, Opal Feeder or Opal Partners, directly or indirectly, the right to control or direct Nephrite, any Diamond Transferred Company, any Diamond Fund (or any of its Subsidiaries) or any operations of the Diamond Business prior to the Closing. Prior to the Closing, Nephrite and the Diamond Transferred Companies shall exercise, consistent with the terms and conditions of this Agreement, control over their respective businesses and operations.

Section 9.2 Interim Operating Covenants of Opal.

(a) From the date of this Agreement through the Pre-Closing Period, unless the Buyer and Nephrite shall otherwise give prior consent (which consent shall not be unreasonably withheld, conditioned or delayed) in writing and except (x) as specifically contemplated by this Agreement or the Ancillary Agreements (including the Opal Reorganization and the transactions contemplated by Section 10.15) or as required by applicable Laws, (y) as set forth on Section 9.2(a) of the Opal Disclosure Letter or (z) other than in respect of the restrictions set forth in subclauses (i), (iii), (iv), (v), (ix), (x), (xii), (xiv), (xvi), (xviii), (xix), (xx), (xxi) or (xxiii) in respect of the foregoing to the extent that any action is reasonably required to be taken or omitted to be taken in response to or related to the actual or anticipated effect on the Opal Business of COVID-19 or any COVID-19 Measures, in each case with respect to this clause (z) in connection with or in response to COVID-19, Opal Feeder and Opal Group shall, (i) cause the Opal Business to be conducted and operated in all material respects in the Ordinary Course of Business and (ii) use its commercially reasonable efforts to (A) preserve the Opal Business and its relationships (including relationships with Clients of the Opal Business) in all material respects (for the avoidance of doubt, subject to Nephrite’s compliance with its obligations under Section 10.2, the failure to obtain any consent from any Client of the Opal Business shall not constitute a breach of this clause (ii)(A)) and (B) keep available the service of the Opal Group Employees who remain employed in the Opal Business or who do not resign for any reason (provided that none of Opal Group or its Affiliates shall be required to incur any cost or expense to do so in excess of the compensation paid to the Opal Group Employees in the Ordinary Course of Business), and Opal Feeder and Opal Group (solely to the extent related to the Opal Business (and excluding with respect to the FIC Assets)) shall not, and shall cause the Opal Transferred Companies not to:

(i) amend or otherwise modify any of the Governing Documents of any Opal Transferred Company in any manner that would be adverse in any material respect to any other Party to this Agreement, except as otherwise required by Law or consented to by such other Party;

(ii) make any material changes to the accounting policies, methods or practices of the Opal Business, other than as required by GAAP, applicable Law or any Governmental Entity with competent jurisdiction;

(iii) sell, issue, redeem, assign, transfer, pledge (other than in connection with existing credit facilities), convey or otherwise dispose of (x) any Equity Securities of any Opal Transferred Company or (y) any options, warrants, rights of conversion or other rights or agreements, arrangements or commitments obligating any Opal Transferred Company to issue, deliver or sell any Equity Securities of any Opal Transferred Company;

 

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(iv) declare, make or pay any non-cash dividend or other non-cash distribution by an Opal Transferred Company to any equityholder of any Opal Transferred Company, other than to another Opal Transferred Company;

(v) adjust, split, combine or reclassify any Equity Securities of an Opal Transferred Company;

(vi) (x) incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness (other than (A) additional Indebtedness under existing credit facilities, (B) capital leases entered into in the Ordinary Course of Business, and (C) Indebtedness that will be accounted for in the Opal Indebtedness Amount), (y) make any advances or capital contributions to, or investments in, any Person, other than an Opal Transferred Company or an Opal Fund (or any of its Subsidiaries) or otherwise in the Ordinary Course of Business, or (z) amend or modify in any material respect any Indebtedness;

(vii) with respect to the Opal Business, commit to, authorize or enter into any agreement in respect of, any capital expenditure (or series of commitments to make such capital expenditures), other than capital expenditures in an amount not to exceed $5,000,000, excluding for this purpose, capital commitments to Opal Funds raised prior to the Closing or increases of capital commitments to existing Opal Funds;

(viii) enter into any material amendment or termination (other than an expiration in accordance with the terms thereof) or waive compliance with any material term of any Opal Material Contract or enter into any Contract that if entered into prior to the date of this Agreement would be an Opal Material Contract (including, for these purposes, a Client Contract), in each case other than in the Ordinary Course of Business and solely to the extent such amendment, termination or waiver would not reasonably be expected to materially and adversely impact the Opal Business, taken as a whole;

(ix) other than assets acquired in the Ordinary Course of Business, acquire the business, properties or assets, including Equity Securities of another Person (other than in respect of a general partner commitment of a Diamond Fund), except, in each case, for acquisitions for which consideration in an aggregate amount (for all such acquisitions) is not greater than $5,000,000 and the consideration for which is payable only in cash, so long as, based upon the advice of Opal Group’s accountants, such acquisition, individually or in the aggregate, would not require any additional disclosure pursuant to the rules and regulations adopted by PCAOB (whether through merger, consolidation, share exchange, business combination or otherwise);

(x) adopt or effect any merger, plan of complete or partial liquidation, dissolution, recapitalization or reorganization, or voluntarily subject to any material Lien, any of the material rights or material assets owned by, or leased or licensed to, any Opal Transferred Company or otherwise in respect of the Opal Business, except for (w) Permitted Liens, (x) Liens under existing credit facilities or other Indebtedness permitted pursuant to Section 9.2(a)(vi), (y) liquidations or dissolutions in the Ordinary Course of Business and (z) as required or contemplated by this Agreement;

 

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(xi) compromise, commence or settle any pending or threatened Proceeding (u) that includes the admission of wrongdoing with respect to the Opal Business, (v) that does not include a full release of claims, (w) involving payments (exclusive of attorney’s fees) by the Opal Business not covered by insurance in excess of $1,000,000 in any single instance or in excess of $5,000,000 in the aggregate, (x) granting injunctive or other equitable remedy against the Opal Business, (y) which imposes any material restrictions, after the Closing, on the operations of the Opal Business or (z) by any third party Person which relates to the transactions contemplated by this Agreement;

(xii) except as required under applicable Law, the terms of any Opal Employee Benefit Plan existing as of the date of this Agreement or in the Ordinary Course of Business (A) materially increase or decrease in any manner (including in respect of the terms and conditions related thereto) the compensation, benefits, bonus, severance or termination pay of any current or former Opal Group Employee or any director or individual service provider of the Opal Business, other than annual merit increases of no more than 10% to any such individuals in the Ordinary Course of Business and consistent with past practice (it being acknowledged and agreed that any merit increases previously awarded but not effective until January 1, 2021 and any bonuses accrued for 2020 but not yet paid are permitted under this Section 9.2), (B) other than in connection with any newly hired employees with annual base compensation (or annual base wages or fees) less than $300,000 who were hired to fill vacant positions in the Ordinary Course of Business, become a party to, establish, adopt, materially amend (other than as required by applicable Law or as part of an annual renewal for health and/or welfare benefits; provided that such annual renewal does not materially increase the expense of maintaining such plan), commence participation in, or terminate any Opal Employee Benefit Plan (e, (C) accelerate the vesting or lapsing of restrictions with respect to any equity or equity-based compensation or other long-term incentive compensation under any Opal Employee Benefit Plan, (D) grant any new awards under any Opal Employee Benefit Plan, (E) amend or modify any outstanding award under any Opal Employee Benefit Plan, (F) enter into, amend or terminate any CBA, or recognize or certify any labor union, works council, labor organization or employee representative as the bargaining representative for any Opal Group Employees, (G) forgive any loans, or issue any loans (other than advances issued in the Ordinary Course of Business) to any Opal Group Employee or any director or individual consultants of the Opal Business, (H) hire or engage any new employee or consultant or terminate the employment or engagement, other than for “cause,” of any employee or consultant if such new employee or consultant is expected to receive annual base compensation (or annual base wages or fees) in excess of $300,000, (I) terminate, modify, amend or waive any restrictive covenant agreement or any term thereof in order to make such agreement or term less restrictive or (J) implement or announce any employee layoffs, plant closings, reductions in force, furloughs, temporary layoffs, salary or wage reductions, work schedule changes or other such actions which would trigger notice requirements under the WARN Act;

(xiii) sell, lease, assign, transfer, convey, license, sublicense, covenant not to assert, permit to lapse, abandon, allow to lapse, or otherwise dispose of, create, grant or issue any Liens (other than Permitted Liens), in or on, any material rights or assets owned by, or leased or licensed to, the Opal Business, other than (x) in the Ordinary Course of Business, (y) assets with an aggregate fair market value less than $5,000,000;

 

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(xiv) disclose any trade secrets and any other material confidential information relating to the Opal Business (other than pursuant to a written confidentiality agreement with provisions restricting the use and disclosure of such trade secrets and confidential information);

(xv) fail to take any action required to maintain (in all material respects) any material insurance policies of the Opal Family (solely as they relate to the Opal Business) in force (other than (i) substitution of an insurance policy by an insurance policy with a substantially similar coverage or (ii) with respect to any policy that covers any asset or matter that has been disposed or is no longer subsisting or application), or knowingly take or omit to take any action that could reasonably result in any such insurance policy being void or voidable (other than (i) substitution of an insurance policy by an insurance policy with a substantially similar coverage, (ii) with respect to any policy that covers any asset or matter that has been disposed or is no longer subsisting or in application, (iii) actions in the Ordinary Course of Business, or (iv) actions set forth on Section 9.2(a)(xv) of the Opal Disclosure Letter);

(xvi) enter into a new line of business within the Opal Business;

(xvii) amend or otherwise modify in any material respect any existing material risk management procedures or material compliance procedures or policies as they relate to the Opal Business in a manner that would loosen restrictions on monitoring such business, other than in the Ordinary Course of Business or as required by Law;

(xviii) accelerate or take any action for the purpose of accelerating the payment or receipt of any management fees, Promote Distributions or other amounts payable by an Opal Fund to Opal or its Affiliates;

(xix) enter into any agreement that materially limits, curtails or restricts the kinds of businesses which any Opal Business may conduct or the Persons with whom the Opal Business can compete;

(xx) terminate any Client Contract of the Opal Business;

(xxi) enter into, renew or modify any Opal Prohibited Affiliate Transaction;

(xxii) except to the extent required by applicable Law, (1) make, change or revoke any material election relating to Taxes, other than in the Ordinary Course of Business, (2) enter into any agreement, settlement or compromise with any Taxing Authority relating to a material amount of Taxes other than in the Ordinary Course of Business, (3) consent to any extension or waiver of the statutory period of limitations applicable to any material Tax matter not disclosed in Section 9.2(a)(xxii) of the Opal Disclosure Letter (other than extensions resulting from the extension of the time to file any applicable Tax Return), (4) file any amended material Tax Return, (5) fail to timely file

 

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(taking into account valid extensions) any material Tax Return required to be filed, (6) fail to pay any material amount of Tax as it becomes due, (7) enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement), (8) surrender any right to claim any refund of a material amount of Taxes, or (9) take any action that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment; or

(xxiii) agree or commit to do any of the foregoing.

(b) Nothing contained in this Agreement shall be deemed to give the Buyer or Nephrite, directly or indirectly, the right to control or direct Opal Group, Opal Feeder, Opal Partners or any operations of the Opal Business prior to the Closing. Prior to the Closing, Opal Group, Opal Feeder, Opal Partners and the Opal Transferred Companies shall exercise, consistent with the terms and conditions of this Agreement, control over their respective businesses and operations.

Section 9.3 Interim Operating Covenants of the Buyer.

(a) During the Pre-Closing Period, unless Nephrite and Opal Group shall otherwise give prior consent (which consent shall not be unreasonably withheld, conditioned or delayed) in writing and except as contemplated by this Agreement or the Ancillary Agreements or as set forth on Section 9.3(a) of the Buyer’s Disclosure Letter or as required by applicable Laws, the Buyer shall not:

(i) conduct any activities or enter into any Contracts directed toward or in contemplation of an alternative Business Combination to the Business Combination contemplated by this Agreement;

(ii) amend or otherwise modify the Trust Agreement; the Underwriting Agreement, dated as of October 22, 2020, by and between the Buyer and Goldman Sachs & Co. LLC, as representative of the underwriters; the Private Placement Warrants Purchase Agreement, dated as of October 22, 2020, by and between the Buyer and the Sponsor; the Warrant Agreement, dated as of October 22, 2020, by and between the Buyer and Continental Stock Transfer & Trust Company, as warrant agent; the Registration and Shareholder Rights Agreement, dated as of October 22, 2020, by and among the Buyer, the Sponsor and certain equityholders of the Buyer; the Letter Agreement, dated as of October 22, 2020, by and among the Buyer, the Sponsor and each executive officer and director of the Buyer; the Administrative Services Agreement, dated as of October 22, 2020, by and between the Buyer and the Sponsor; or the Buyer Governing Documents in any material respect;

(iii) withdraw any of the Trust Amount, other than as permitted by the Buyer Governing Documents or the Trust Agreement;

(iv) make any material changes to its accounting policies, methods or practices, other than as required by GAAP or applicable Law;

 

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(v) except to the extent required by applicable Law, (1) make, change or revoke any material election relating to Taxes, (2) enter into any agreement, settlement or compromise with any Taxing Authority relating to a material amount of Taxes, (3) consent to any extension or waiver of the statutory period of limitations applicable to any material Tax matter not disclosed in Section 9.3(a)(v) of the Buyer’s Disclosure Letter (other than extensions resulting from the extension of the time to file any applicable Tax Return), (4) file any amended material Tax Return, (5) fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, (6) fail to pay any material amount of Tax as it becomes due, (7) enter into any tax sharing agreement (other than an Ordinary Course Tax Sharing Agreement), (8) surrender any right to claim any refund of a material amount of Taxes, or (9) take any action that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment;

(vi) other than in connection with the Required Vote, the Buyer Share Redemption or a PIPE Financing, sell, issue, redeem, assign, transfer, convey or otherwise dispose of (w) any of its Equity Securities, or (x) any options, warrants, rights of conversion or other rights or agreements, arrangements or commitments obligating the Buyer or Sponsor to issue, deliver or sell any Equity Securities of the Buyer;

(vii) other than the Buyer Share Redemption, declare, make or pay any dividend, other distribution or return of capital (whether in cash or in kind) to the equityholders of the Buyer;

(viii) adjust, split, combine or reclassify (other than a reclassification pursuant to a conversion of shares of Existing Buyer Class B Common Stock into shares of Existing Buyer Class A Common Stock pursuant to the Buyer Governing Documents) any of its Equity Securities;

(ix) reduce the exercise price of any Existing Buyer Public Warrant;

(x) incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, material Liabilities, debts or obligations;

(xi) enter into any material Contract, other than as contemplated by this Agreement;

(xii) compromise, commence or settle any pending or threatened Proceeding (w) involving payments (exclusive of attorney’s fees) by the Buyer not covered by insurance in excess of $1,000,000 or in excess of $5,000,000 in the aggregate, (x) granting material injunctive or other equitable remedy against the Buyer (y) which imposes any material restrictions on the operations of businesses of the Buyer or (z) by the public stockholders or any other third party Person which relates to the transactions contemplated by this Agreement; or

(xiii) agree or commit to do any of the foregoing.

(b) Nothing contained in this Agreement shall be deemed to give Nephrite, Opal Group, the Diamond Transferred Companies or the Opal Transferred Companies, directly or indirectly, the right to control or direct the Buyer prior to the Closing. Prior to the Closing, the Buyer shall exercise, consistent with the terms and conditions of this Agreement, control over its business.

 

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Article X

PRE-CLOSING AND OTHER COVENANTS

Section 10.1 Diamond Client Consents.

(a) The Parties will use commercially reasonable efforts to (i) cause the assignment of any Diamond Client Contracts to a registered investment adviser of Opal Group or, if agreed by Opal Group and Nephrite, to cause a Diamond Transferred Company to obtain registration with the SEC as a registered investment adviser under the Investment Advisers Act and (ii) to register a Diamond Transferred Company with the CFTC as a commodity pool operator or, if determined by the Parties in good faith that such registration is no longer necessary, to deregister any Diamond Funds for which Nephrite or an Affiliate serves as a registered commodity pool operator, in each case effective at or prior to the Closing.

(b) With respect to each Diamond Fund, Nephrite shall use commercially reasonable efforts to obtain, as promptly as reasonably practicable following the date hereof, the consent of such Diamond Fund to the “assignment” (as defined in the Investment Advisers Act), actual legal assignment or continuation of its Client Contract resulting from the consummation of the transactions contemplated by this Agreement in the manner required by the terms of such Client Contract and/or applicable Law (such consents required for each Diamond Fund, the “Requisite Diamond Fund Approval”). Subject to the review rights set forth in Section 10.1(c), in furtherance of the foregoing, Nephrite shall send, as promptly as reasonably practicable following the date hereof, a written notice (“Diamond Transaction Notice”) informing such investors of such Diamond Funds of the transactions contemplated by this Agreement and requesting the written consent of such investors to such “assignment” (as defined in the Investment Advisers Act), actual legal assignment or continuation. The parties hereto agree that a Diamond Fund shall be deemed to have so consented for all purposes under this Agreement and the Requisite Diamond Fund Approvals shall have been obtained (and have not been withdrawn or superseded) if the following requirements shall have been satisfied prior to Closing:

(i) For each Diamond Fund, (A) the written consent of limited partners, shareholders or other investors of such Diamond Fund representing more than 50% of the total capital commitments of such Diamond Fund (or such higher percentage of total capital commitments as may be required for investors or limited partners to provide consents under the applicable Governing Documents or Client Contracts for such Diamond Fund) has been obtained (and has not been withdrawn or superseded), (B) to the extent expressly permitted under the applicable Governing Documents for such Diamond Fund, the written consent of the limited partner advisory committee or other advisory board of such Diamond Fund in a manner prescribed by such Governing Documents or (C) if any such Diamond Fund has a board of directors or other governing body, the majority of the members of which are not employed by any member of the Nephrite Group, upon receipt of such consent of such board, committee or body.

 

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(c) Opal Group and the Buyer shall reasonably cooperate with Nephrite and its Affiliates in connection with the obtaining of consents under this Section 10.1. Without limiting the generality of the foregoing, upon the request of Nephrite, Opal Group and the Buyer shall each use their commercially reasonable efforts in connection with the obtaining of consents under this Section 10.1, including, if reasonably requested by Nephrite, participating with Nephrite in calls and meetings with any Diamond Fund, its advisory committee, or material investor therein. Nephrite shall take reasonable steps to keep Opal Group and the Buyer reasonably informed of the status of Nephrite’s efforts to obtain the consents in a timely manner, including by providing copies of any material formal written communications with any Diamond Fund (including the directors and limited partners thereof) with respect to transactions contemplated by this Agreement, its anticipated effect on the operation of the business following Closing and the consent process, in each case, materially and adversely affecting the Client consents referred to in this Section 10.1. For the avoidance of doubt and without limiting the generality of the foregoing, Opal Group and the Buyer shall each have the right and reasonable opportunity to review drafts of any substantive consent solicitation materials in advance of dissemination of such materials to the applicable recipients thereof (other than, for the avoidance of doubt, ordinary course communications with Diamond Funds which do not refer or relate to Opal Group or the Buyer or their respective Affiliates (as applicable) or the transactions contemplated by this Agreement or the operation of the business following the Closing), including any materials that incorporate information regarding the transactions contemplated by this Agreement or such other Party hereto or its Affiliates, in each case, other than materials that are substantively similar to prior materials already provided to Opal Group or the Buyer (as applicable). Opal Group and the Buyer shall each have the right to provide comments on such material, which Nephrite shall reasonably consider in good faith.

(d) Prior to Closing, without the prior written consent of Nephrite, none of Opal Group or the Buyer or their respective Affiliates, employees, directors, officers or agents shall, directly or indirectly, contact or communicate with any Diamond Fund, any investor in a Diamond Fund, any Affiliate of a Diamond Fund or any consultant or similar Person regarding the transactions contemplated by this Agreement and the Ancillary Agreements, other than with respect to any such Person that is a Client of Opal Family. For the avoidance of doubt, nothing contained herein shall restrict any contact or communication by Opal Group or the Buyer or their respective Affiliates in the Ordinary Course of Business and not in connection with the transactions contemplated by this Agreement or as otherwise expressly required by this Agreement. None of Opal Group or the Buyer or their respective Affiliates shall take any action for the purpose of adversely affecting Nephrite’s ability to obtain the consent of any Client.

(e) Without the prior written consent of Opal Group and the Buyer, neither Nephrite nor any of its Affiliates shall offer or enter into any, or amend any existing, fee waiver, fee reduction, fee modification, expense waiver or similar arrangement with respect to a Diamond Fund in connection with the consent process under this Section 10.1 or otherwise offer or make any payment or concession with respect to a Diamond Fund to obtain any consent under this Section 10.1.

 

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Section 10.2 Opal Fund Consents.

(a) Private Funds. With respect to each Opal Private Fund, Opal Group shall use commercially reasonable efforts to obtain, as promptly as reasonably practicable following the date hereof, the consent of such Opal Private Fund to the “assignment” (as defined in the Investment Advisers Act), actual legal assignment or continuation of its Client Contract resulting from the consummation of the transactions contemplated by this Agreement in the manner required by the terms of such Client Contract and/or applicable Law (such consents required for each Opal Private Fund, the “Requisite Opal Fund Approval”). Subject to the review rights set forth in Section 10.2(e), in furtherance of the foregoing, Opal Group shall send, as promptly as reasonably practicable following the date hereof, a written notice (“Opal Transaction Notice”) informing such investors of such Opal Funds of the transactions contemplated by this Agreement and requesting the written consent of such investors to such “assignment” (as defined in the Investment Advisers Act), actual legal assignment or continuation. The parties hereto agree that an Opal Private Fund shall be deemed to have so consented for all purposes under this Agreement and the Requisite Opal Fund Approvals shall have been obtained (and have not been withdrawn or superseded) if the following requirements shall have been satisfied prior to Closing:

(i) For each Opal Private Fund, (A) (1) the written consent of limited partners, shareholders or other investors of such Opal Private Fund representing more than 50% of the total net asset value of such Opal Private Fund (or such higher percentage of total capital commitments as may be required for investors or limited partners to provide consents under the applicable Governing Documents or Client Contracts for such Opal Private Fund) has been obtained (and has not been withdrawn or superseded) or (2) if permitted by the applicable Governing Documents or Client Contracts and not prohibited by applicable Law, if no such written consent is obtained, if written notice has been sent to the limited partners, shareholders or other investors of such Opal Private Fund describing the proposed transactions hereunder, requesting such consent and explaining that each limited partner, shareholder or other investor that does not object to the assignment of the applicable Client Contract within 45 days following delivery of such notice will be deemed to have consented to such assignment (provided, that such notice must be sent at least 45 days prior to the Closing Date); provided that no consent shall be deemed to have been given for any purpose under this clause (2) in respect of an Opal Private Fund if at any time prior to the Closing limited partners, shareholders or other investors of the applicable Opal Private Fund who, in the aggregate, represent over 50% of the net asset value of the applicable Opal Private Fund notify the Buyer in writing that such limited partners, shareholders or other investors have not so consented (and such notice is not withdrawn in writing), (B) to the extent expressly permitted under the applicable Governing Documents for such Opal Private Fund, the written consent of the limited partner advisory committee or other advisory board of such Opal Private Fund in a manner prescribed by such Governing Documents or (C) if any such Opal Private Fund has a board of directors or other governing body, the majority of the members of which are not employed by any member of the Opal Family, upon receipt of such consent of such board, committee or body.

(b) BDCs. Opal Feeder and Opal Group shall and shall cause each of its Subsidiaries to use its commercially reasonable efforts to obtain, as promptly as practicable following the date of this Agreement, the approval of the applicable BDC Board and the shareholders of each BDC, pursuant to the provisions of Section 15 of the Investment Company Act applicable thereto, of a new Client Contract for each BDC to be effective as of the Closing with such agreement containing substantially the same economic terms, and such other terms,

 

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taken as a whole, that are substantially similar to such other terms of the existing Client Contract such BDC and the applicable Investment Adviser, with the exception of its effective and termination dates. Without limiting the foregoing, subject in each case to the requirements of applicable Law:

(i) With respect to each BDC and the BDC Board thereof, Opal Feeder and Opal Group shall and shall cause each of its Subsidiaries to use its commercially reasonable efforts: (A) to request, as promptly as practicable following the date of this Agreement, such BDC Board to approve (and to recommend that the shareholders of such BDC approve) a new Client Contract as described in the first sentence of Section 10.2(b); (B) to request, as promptly as practicable following receipt of the approval and recommendation described in clause (A) above, such BDC Board to call a meeting of the shareholders of such BDC to be held as promptly as reasonably practicable for the purpose of voting upon a proposal to approve such new Client Contract; (C) to prepare and to file (or to cause to be prepared and filed) with the SEC and all other applicable Governmental Entities, as promptly as practicable following receipt of the approval and recommendation described in clause (A) above, all proxy solicitation materials required to be distributed to the shareholders of such BDC with respect to the actions recommended for shareholder approval by such BDC Board and to mail (or to cause to be mailed) such proxy solicitation materials as promptly as practicable after clearance thereof by the SEC (if applicable); (D) as promptly as practicable clear all SEC comments; and (E) to request such BDC Board to submit, as promptly as practicable following the mailing of the proxy materials, to the shareholders of such BDC for a vote at a shareholders meeting the proposal described in clause (B) above.

(ii) The parties hereto agree that a BDC shall be deemed to have consented for all purposes under this Agreement to the transactions contemplated by this Agreement and the continued management of such BDC by the applicable Investment Adviser following the Closing if a new Client Contract has been approved by the BDC Board thereof and shareholders of such BDC in the manner contemplated by clause (i) of this subsection (b), unless at any time prior to the Closing the respective BDC Board notifies any Opal Transferred Company in writing that such BDC has terminated (or it intends to terminate) its Client Contract prior to or immediately following the Closing (and such notice is not withdrawn).

(c) Opal Family agrees that the information provided by it or any other Subsidiary (or on their behalf) in writing specifically for inclusion in the proxy materials to be furnished to the shareholders of any BDC (other than information that is or will be provided by or on behalf of the Buyer, Nephrite or their respective Affiliates or any other third party specifically for inclusion in such proxy materials) will not contain, as of the date of such proxy materials, 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 light of the circumstances under which they were made, not misleading. Each of Nephrite and the Buyer agrees that the information provided by it or its Affiliates (or on their behalf) in writing specifically for inclusion in the proxy materials to be furnished to the shareholders of any BDC will not contain, as of the date of such proxy materials, 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 light of the circumstances under which they

 

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were made, not misleading. Each Party shall have the right to review in advance and to approve (such approval not to be unreasonably withheld) all the information relating to it and any of its Affiliates proposed to appear in any registration statement or proxy statement or any amendment or supplement thereto submitted to the SEC or such other applicable Governmental Entity in connection with the approvals contemplated by this Section 10.2(c).

(d) Separate Account Clients. With respect to any Opal SMA Client, Opal Group and its Affiliates shall use their commercially reasonable efforts to obtain, as promptly as reasonably practicable following the date hereof, the consent of such Opal SMA Client to the “assignment” (as defined in the Investment Advisers Act), actual legal assignment or continuation of its Client Contract resulting from the consummation of the transactions contemplated by this Agreement in the manner required by the terms of such Client Contract and/or applicable Law (such consents required for each Opal SMA Client, the “Requisite Opal SMA Approval”). Subject to the review rights set forth in Section 10.2(e), in furtherance of the foregoing, Opal Group shall send, as promptly as practicable following the date of this Agreement, an Opal Transaction Notice informing such Opal SMA Client of the transactions contemplated by this Agreement and requesting the written consent of such Opal SMA Client to such “assignment” (as defined in the Investment Advisers Act), actual legal assignment or continuation. The parties hereto agree that an Opal SMA Client shall be deemed to have so consented for all purposes under this Agreement if prior to Closing:

(i) (A) if written consent for the “assignment” (as defined in the Investment Advisers Act), actual legal assignment or continuation of the Client Contract with such Opal SMA Client resulting from the consummation of the transactions contemplated by this Agreement, is expressly required under the respective Client Contract, upon receipt of the written consent requested in the Opal Transaction Notice or (B) if consent other than written consent is not prohibited under applicable Law or the respective Client Contract, (1) upon receipt of a written consent requested in the Opal Transaction Notice or (2) if no such written consent is received, if 45 days shall have passed since the sending of written notice (“Opal Negative Consent Notice”) to such Opal SMA Client (which Opal Negative Consent Notice may be included in the Opal Transaction Notice, and which notice must be sent at least 45 days prior to the Closing Date) informing such Opal SMA Client: (I) of the intention to complete the transactions contemplated by this Agreement, which will result in an “assignment” (as defined in the Investment Advisers Act) of such Opal SMA Client’s Client Contract; (II) of the intention to continue to provide the advisory services pursuant to the existing Client Contract with such Opal SMA Client after the Closing if such Opal SMA Client does not terminate such agreement prior to the Closing; and (III) that the consent of such Opal SMA Client will be deemed to have been granted if such Opal SMA Client continues to accept such advisory services for a period of at least 45 days after the sending of the Opal Negative Consent Notice without termination or (C) if the applicable Client Contract terminates at Closing, the Opal SMA Client has (1) waived such termination in writing or (2) entered into a new Client Contract (or amended its existing Client Contract) that will not terminate at the Closing with such agreement containing terms and conditions that are the same in all material respects as the existing Client Contract; provided that, in any case under clause (A), (B) or (C), no consent shall be deemed to have been given for any purpose under this Agreement if at any time prior to the Closing such Opal SMA Client notifies Opal Group in writing that such Opal SMA Client has not so consented or has terminated, or intends to terminate, its Client Contract (and such notice is not withdrawn).

 

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(e) Nephrite and the Buyer shall reasonably cooperate with Opal Group and its Affiliates in connection with the obtaining of consents under this Section 10.2. Without limiting the generality of the foregoing, upon the request of Opal Group, Nephrite and the Buyer shall each use their commercially reasonable efforts in connection with the obtaining of consents under this Section 10.2, including, if reasonably requested by Opal Group, participating with Opal Family in calls and meetings with any Opal Fund, its advisory committee, or material investor therein. Opal Group and its Affiliates shall take reasonable steps to keep Nephrite and the Buyer reasonably informed of the status of Opal Group’s and its Affiliates’ efforts to obtain the Opal Fund consents in a timely manner, including by providing copies of any material formal written communications with any Opal Fund (including the directors, limited partners and shareholders thereof) with respect to transactions contemplated by this Agreement, its anticipated effect on the operation of the business following Closing and the Opal Fund consent process, in each case, materially and adversely affecting the Client consents referred to in this Section 10.2. For the avoidance of doubt and without limiting the generality of the foregoing, Nephrite and the Buyer shall each have the right and reasonable opportunity to review drafts of any proxy solicitation (and any material amendment and supplement thereof) and any other substantive consent solicitation materials in advance of dissemination of such materials to the applicable recipients thereof (and any formal proxy solicitation or other formal consent solicitation materials (other than, for the avoidance of doubt, ordinary course communications with Opal Funds which do not refer or relate to Nephrite or the Buyer or their respective Affiliates (as applicable) or the transactions contemplated by this Agreement or the operation of the business following the Closing), including any materials that incorporate information regarding the transactions contemplated by this Agreement or Nephrite or the Buyer or their respective Affiliates), in each case, other than materials that are substantively similar to prior materials already provided to Nephrite and the Buyer (as applicable). Nephrite and the Buyer shall each have the right to provide comments on such material, which Opal Group shall reasonably consider in good faith.

(f) Prior to Closing, without the prior written consent of Opal Group, none of Nephrite or the Buyer or their respective Affiliates, employees, directors, officers or agents shall, directly or indirectly, contact or communicate with any Opal SMA Client, Opal Fund, any investor in an Opal Fund, any Affiliate of an Opal Fund (including any member of any BDC Board) or any consultant or similar Person regarding the transactions contemplated by this Agreement and the Ancillary Agreements, other than with respect to any such Person that is a Client of the Nephrite Group. For the avoidance of doubt, nothing contained herein shall restrict any contact or communication by Nephrite or the Buyer or their respective Affiliates in the Ordinary Course of Business and not in connection with the transactions contemplated by this Agreement or as otherwise expressly required by this Agreement. None of Nephrite or the Buyer or their respective Affiliates shall take any action for the purpose of adversely affecting Opal Family’s ability to obtain the consent of any Client.

(g) Without the prior written consent of Nephrite and the Buyer, neither Opal Family nor any of its Affiliates shall offer or enter into any, or amend any existing, fee waiver, fee reduction, fee modification, expense waiver or similar arrangement with respect to an Opal Fund in connection with the consent process under this Section 10.2 or otherwise offer or make any payment or concession with respect to an Opal Fund to obtain any consent under this Section 10.2.

 

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Section 10.3 Section 15(f). The Buyer acknowledges that Opal Group is entering into this Agreement and the Ancillary Agreements in reliance upon the benefits and protections provided by Section 15(f) of the Investment Company Act. In this regard, (a) prior to the Closing Date, Opal Group shall and shall cause each of its Subsidiaries to use its commercially reasonable efforts to ensure that as of the Closing Date, at least 75% of the members of the BDC Board of each BDC are not “interested persons” (within the meaning of Section 2(a)(19) of the Investment Company Act) of the respective BDC, and (b) from and after the Closing Date, the Buyer shall, and shall cause each of its respective Affiliates to, to the extent within its control, conduct their businesses so as to ensure that: (i) for a period of not less than three years after the Closing Date, at least 75% of the members of the BDC Board of each BDC are not (x) “interested persons” (within the meaning of Section 2(a)(19) of the Investment Company Act) of such BDC after the Closing Date or (y) “interested persons” (within the meaning of Section 2(a)(19) of the Investment Company Act) of such BDC immediately prior to the Closing Date; and (ii) for a period of not less than two years after the Closing Date, there shall not be imposed on any BDC an “unfair burden” (as that term is defined in Section 15(f) of the Investment Company Act and interpreted by the SEC) as a result of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained herein, the covenants of the parties hereto contained in this Section 10.3 are intended only for the benefit of such parties and for no other Person.

Section 10.4 Commercially Reasonable Efforts; Further Assurances. Subject to the terms and conditions set forth in this Agreement, and to applicable Laws, during the Pre-Closing Period, the Parties shall cooperate and use their respective commercially reasonable efforts to take, or cause to be taken, all appropriate action (including executing and delivering any documents, certificates, instruments and other papers that are necessary for the consummation of the transactions contemplated by this Agreement), and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. Nephrite and Opal Group shall each use their commercially reasonable efforts, and the Buyer shall cooperate in all reasonable respects with Nephrite and Opal Group, to solicit and obtain the Consents as agreed by the Parties, prior to the Closing, of the Persons who are parties to the Contracts specified (x) in Section 3.3(b)(iii) of the Diamond Disclosure Letter and from whom Opal elects to seek Consent and (y) in Section 5.3(b)(iii) of the Opal Disclosure Letter and from whom Nephrite elects to seek Consent; provided that receipt of such Consents shall not be a condition to the Closing under this Agreement except as otherwise expressly set forth herein; provided, further, that no Party nor any of their Affiliates shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Consent may be required (unless such payment is required in accordance with the terms of the relevant Contract requiring such Consent or as otherwise expressly set forth herein). Any payment pursuant to the foregoing proviso shall be a Transaction Expense.

Section 10.5 Trust and Closing Funding. Subject to the satisfaction or waiver of the conditions set forth in Section 2.9 and Section 2.10 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) and provision of notice thereof to the Trustee (which notice the Buyer shall provide to the Trustee in

 

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accordance with the terms of the Trust Agreement), in accordance with the Trust Agreement and the Buyer Governing Documents, at the Closing, the Buyer shall (a) cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered, and (b) cause the Trustee to pay as and when due (x) all amounts payable to the Buyer Stockholders who shall have validly elected to redeem their shares of Existing Buyer Class A Common Stock pursuant to the Buyer Amended and Restated Memorandum and Articles of Association and (y) pay all amounts payable pursuant to Section 2.7.

Section 10.6 Listing. During the Pre-Closing Period, the Buyer shall use commercially reasonable efforts to remain listed as a public company on, and shall use commercially reasonable efforts to ensure that the Existing Buyer Public Securities remain (and all Buyer Class A Common Stock being issued in connection with the PIPE Financing and otherwise pursuant hereto become) listed on and tradable over, the NYSE.

Section 10.7 LTIP. Prior to the Closing Date, the Buyer shall approve and, subject to the approval of the Buyer Stockholders, adopt, an omnibus incentive equity plan, substantially in the form attached to this Agreement as Exhibit I, to be effective upon and following the Closing (the “LTIP”). Nothing contained in this Section 10.7 (whether express or implied) shall confer any rights, remedies or benefits whatsoever (including any third-party beneficiary rights) on any Person other than the Parties to this Agreement.

Section 10.8 Confidential Information. During the Pre-Closing Period, each Party shall be bound by and comply with the provisions set forth in the Confidentiality Agreements to which it is a party as if such provisions were set forth in this Agreement, and such provisions are incorporated in this Agreement by reference. Each Party acknowledges and agrees that each is aware, and each of their respective Affiliates and representatives are aware (or upon receipt of any material nonpublic information of any other Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each Party agrees, that during the Pre-Closing Period, except in connection with or support of the transactions contemplated by this Agreement (including any communications with potential Equity Financing Sources), while any of them are in possession of such material nonpublic information, none of such Persons shall, directly or indirectly (through its Affiliates or otherwise), acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of the Buyer, communicate such information to any other Person or cause or encourage any Person to do any of the foregoing.

Section 10.9 Access to Information.

(a) Diamond Information. During the Pre-Closing Period, upon reasonable prior written notice, Nephrite shall afford the representatives of Opal Group and the Buyer reasonable access, during normal business hours, to the properties, books and records of the Diamond Transferred Companies and the Diamond Business and furnish to the representatives of Opal Group and the Buyer such additional financial and operating data and other information regarding the Diamond Transferred Companies and the Diamond Business as Opal Group, the Buyer or their respective representatives may from time to time reasonably request for purposes of consummating the transactions contemplated by this Agreement, but only to the extent that

 

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Nephrite may do so without violating any obligations to any third party and to the extent that Nephrite has the authority to grant such access without breaching any restrictions binding on it or its Affiliates (and provided that Opal Group and the Buyer shall abide by the terms of the applicable Confidentiality Agreements). The Buyer agrees to be responsible for the reasonable and documented out-of-pocket expenses incurred by the Nephrite Group as a result of providing such access (which shall be treated as a Transaction Expense under this Agreement).

(b) Opal Information. During the Pre-Closing Period, upon reasonable prior written notice, Opal Group shall afford the representatives of Nephrite and the Buyer reasonable access, during normal business hours, to the properties, books and records of the Opal Transferred Companies and the Opal Business and furnish to the representatives of Nephrite and the Buyer such additional financial and operating data and other information regarding the Opal Transferred Companies and the Opal Business as Nephrite, the Buyer or their respective representatives may from time to time reasonably request for purposes of consummating the transactions contemplated by this Agreement, but only to the extent that Opal Group may do so without violating any obligations to any third party and to the extent that Opal Group has the authority to grant such access without breaching any restrictions binding on it or its Affiliates (and provided that Nephrite and the Buyer shall abide by the terms of the applicable Confidentiality Agreements). The Buyer agrees to be responsible for the reasonable and documented out-of-pocket expenses incurred by the Opal Family as a result of providing such access (which shall be treated as a Transaction Expense under this Agreement).

(c) Each of the Buyer, the Opal Family and the Nephrite Group shall coordinate its access rights with the Nephrite Group and/or the Opal Family and their respective Affiliates, as applicable, to reasonably minimize any inconvenience to, or interruption of, the conduct of the Diamond Business or the Opal Business, as applicable.

(d) Notwithstanding anything to the contrary in this Section 10.9, none of Nephrite, Opal Group or any of their respective Affiliates or its or their representatives shall be required to disclose any information to any other Party to this Agreement during the Pre-Closing Period if such disclosure would (i) jeopardize any attorney-client or other applicable legal privilege, (ii) require disclosure of any trade secrets of the Diamond Transferred Companies, the Diamond Business, Opal Transferred Companies or the Opal Business (as applicable) or of third parties, (iii) cause a violation of any Diamond Transferred Company’s or Opal Transferred Company’s (as applicable) obligations with respect to confidentiality, or violate any Diamond Privacy and Security Policy or Opal Privacy and Security Policy, as applicable, or (iv) contravene any applicable Contracts or Laws; provided that Nephrite, Opal and any of their respective Affiliates and it’s or their representatives (as applicable) shall use commercially reasonable efforts to cooperate with each other in connection with providing reasonable access to such other Party, the Buyer and their respective Affiliates or representatives, in a manner that does not result in any of the foregoing.

(e) Except as otherwise expressly set forth in this Agreement, prior to the Closing, without the prior written consent of Nephrite, which may be withheld for any reason, none of Opal Group or the Buyer or their respective Affiliates or their respective Representatives, shall contact any employees, service providers, lenders or other material business relationships of, any Diamond Transferred Company or the Diamond Business in relation to the transactions

 

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contemplated by this Agreement. Except as otherwise expressly set forth in this Agreement, prior to the Closing, without the prior written consent of Opal Group, which may be withheld for any reason, none of Nephrite or the Buyer or their respective Affiliates or their respective Representatives, shall contact any employees, service providers, lenders or other material business relationships of, any Opal Transferred Company or the Opal Business in relation to the transactions contemplated by this Agreement. For the avoidance of doubt, the foregoing shall not restrict any contact or communication by Opal Group, Nephrite or the Buyer or their respective Affiliates in the Ordinary Course of Business and not in connection with the transactions contemplated by this Agreement.

Section 10.10 Notification of Certain Matters.

(a) During the Pre-Closing Period, Nephrite shall disclose to the Buyer and Opal Group in writing any development, fact or circumstance of which it has Knowledge or of which it receives a written notice or other written communication from a third party (including any Governmental Entity), arising before or after the date of this Agreement, that would cause or would reasonably be expected to result in the failure of any of the conditions set forth in Section 2.9, Section 2.10 or Section 2.12 to be satisfied; provided that such disclosure shall not (x) cure any breach of Nephrite’s representations and warranties set forth in Article III and Article IV or failure of Nephrite to comply with or perform any of its covenants or obligations set forth in this Agreement or (y) be deemed to be an acknowledgement or admission by Nephrite regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.

(b) During the Pre-Closing Period, Opal Group shall disclose to the Buyer and Nephrite in writing any development, fact or circumstance of which it has Knowledge or of which it receives a written notice or other written communication from a third party (including any Governmental Entity), arising before or after the date of this Agreement, that would cause or would reasonably be expected to result in a breach of Opal Group’s or Opal Feeder’s representations and warranties set forth in Article V or Article VI or the failure of any of the conditions set forth in Section 2.9, Section 2.10 or Section 2.11 to be satisfied; provided that such disclosure shall not (x) cure any breach of Opal Group’s or Opal Feeder’s representations and warranties set forth in Article V and Article VI or failure of Opal Group, Opal Feeder or Opal Partners to comply with or perform any of its covenants or obligations set forth in this Agreement or (y) be deemed to be an acknowledgement or admission by Opal Group, Opal Feeder or Opal Partners regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.

(c) During the Pre-Closing Period, the Buyer shall disclose to Opal Group and Nephrite in writing any development, fact or circumstance of which the Buyer has Knowledge or of which it receives a written notice or other written communication from a third party (including any Governmental Entity), arising before or after the date of this Agreement, that would cause or would reasonably be expected to result in the failure of any of the conditions set forth in Section 2.9, Section 2.11 or Section 2.12 to be satisfied; provided, that such disclosure shall not (x) cure any breach of the Buyer’s representations and warranties set forth in Article VII or failure of the

 

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Buyer to comply with or perform any of its covenants or obligations set forth in this Agreement or (y) be deemed to be an acknowledgement or admission by the Buyer regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached.

Section 10.11 Regulatory Approvals; Efforts.

(a) Each Party shall use commercially reasonable efforts to promptly file all notices, reports and other documents required to be filed by such party with any Governmental Entity with respect to the transactions contemplated by this Agreement, and to submit promptly any additional information requested by any such Governmental Entity. Without limiting the generality of the foregoing, the Parties will (i) cause the Notification and Report Forms required pursuant to the HSR Act with respect to the transactions contemplated by this Agreement to be filed as promptly as practicable after the execution of this Agreement (and in any event within 15 Business Days following the execution of this Agreement), (ii) request early termination of the waiting period relating to such HSR Act filings, if early termination is being granted at the time of such filing, (iii) supply as promptly as practicable any additional information and documentary material that may be requested by a Governmental Entity pursuant to the HSR Act and (iv) otherwise use its commercially reasonable efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act with respect to the transactions contemplated by this Agreement as soon as practicable. The Parties shall use commercially reasonable efforts to promptly obtain, and to cooperate with each other to promptly obtain, all authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity in connection with the applicable filings, applications or notifications. Each Party shall promptly inform the other Parties of any material communication between itself (including its representatives) and any Governmental Entity regarding any of the transactions contemplated by this Agreement. If a Party or any of its Affiliates receives any formal or informal request for supplemental information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then the Party, to the extent necessary and advisable, shall provide a reasonable response to such request as promptly as reasonably practicable. All fees or other payments required by applicable Law to any Governmental Entity in order to obtain any such approvals, consents, or Orders shall be treated as Transaction Expenses.

(b) The Parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and, to the extent permissible, promptly furnish the other with copies of notices or other communications between any Party (including their respective Affiliates and representatives), as the case may be, and any third party and/or Governmental Entity with respect to such transactions. Each Party shall give the other Parties and their counsel a reasonable opportunity to review in advance, to the extent permissible, and consider in good faith the views and input of the other Parties in connection with, any proposed material written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Each Party agrees not to participate in any substantive meeting, conference or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other Parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other Parties the opportunity to attend and participate.

 

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(c) Each Party shall use its commercially reasonable efforts to resolve objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement under the HSR Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and any other United States federal or state or foreign statutes, rules, regulations, Orders, decrees, administrative or judicial doctrines or other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or constituting anticompetitive conduct (collectively, the “Antitrust Laws”). Subject to the other terms of this Section 10.11(c), each Party shall use its commercially reasonable efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement.

(d) The Buyer shall not take any action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement as a result of the application of any Antitrust Law.

(e) Opal Partners shall, in consultation with the Buyer and Nephrite, prepare and, not later than 30 days after the date hereof, file with FINRA and request FINRA “Fast Track” treatment for, the continuing membership agreement covering the change in ownership of the Opal Broker-Dealer Subsidiary in connection with the transactions contemplated by this Agreement (together, the “CMAs”) together with all documents and information required in connection with obtaining FINRA approval on a “Fast Track” basis of the CMAs. Each of the Parties shall assist Opal Partners and provide all necessary information to counsel for Opal Partners to enable the Opal Broker-Dealer Subsidiary to make and submit such filing, as promptly as practical after the execution of this Agreement, in form and substance reasonably satisfactory to Opal Partners, to obtain FINRA approval of the change in ownership of the Opal Broker-Dealer Subsidiary. Each of the Parties shall use commercially reasonable efforts to have the CMAs approved by FINRA on a “Fast Track” basis or, if such “Fast Track” basis is not granted, as promptly as practicable (such approval, the “Opal Broker-Dealer FINRA Approval”). The Parties shall reasonably cooperate with each other and the Opal Broker-Dealer Subsidiary in the preparation and submission of the CMAs, and in responding to any requests by FINRA with respect to the CMAs or any requests by FINRA for any amendment or supplement thereto or for additional information. Without limiting the generality of the foregoing, the Parties shall, to the extent required by FINRA, provide the Opal Broker-Dealer Subsidiary and its counsel for filing with FINRA, the requisite anti-money laundering, OFAC and disqualifying event certifications as well as formation and other organization documents of such Party required to be included in the CMAs. To the extent that the Opal Broker-Dealer FINRA Approval is not obtained as of the Closing, Opal Partners shall cause the Opal Broker-Dealer Subsidiary to continue to provide services to the Opal Business and, to the extent authorized under applicable regulation (including FINRA rules and requirements), to the Diamond Business, in each case, on substantially the same terms as the Opal Broker-Dealer Subsidiary is providing services to the Opal Business as of the Closing until the Opal Broker-Dealer FINRA Approval is obtained. Upon obtaining the Opal Broker-Dealer FINRA Approval (if obtained following Closing), Opal Partners shall, as soon as is reasonably practicable and for no additional consideration, cause all of the issued and outstanding Equity Securities of Opal Broker-Dealer Subsidiary to be contributed to Opal Group, such that Opal Broker-Dealer Subsidiary would be a Subsidiary of Opal Group. If at any time following the Closing, Opal Partners or any of its then-Affiliates (not including, for the avoidance of doubt, Buyer, the Blue

 

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Owl Companies, Opal or any of their respective Subsidiaries) directly or indirectly receives from the Opal Broker-Dealer Subsidiary a dividend or distribution or receives net proceeds of any consolidation, merger, recapitalization, sale, exchange, conveyance, redemption or other disposition transaction of or by the Opal Broker-Dealer Subsidiary or a portion thereof (any such amount, an “Opal Broker-Dealer Realized Amount”), then Opal Partners or such Affiliate shall, promptly upon receipt thereof by Opal Partners or such Affiliate, contribute or cause to be contributed such Opal Broker-Dealer Realized Amount to Opal.

(f) Notwithstanding anything in this Agreement to the contrary, but subject to compliance with Section 10.8, nothing in this Section 10.11 shall require the Buyer, Sponsor, Nephrite Group, Opal Group or any of their respective Affiliates to take any action with respect to any of their respective Affiliates (other than, with respect to the Buyer and Sponsor, the Buyer’s Subsidiaries, with respect to the Opal Family, the Opal Business and, with respect to the Nephrite Group, the Diamond Business), any of their respective affiliated investment funds, including the Diamond Funds, the Opal Funds or any portfolio company (as such term is commonly understood in the private equity industry) or investment of the Buyer, Sponsor, Nephrite Group, Opal Group or their respective Affiliates (other than, with respect to the Buyer and Sponsor, the Buyer’s Subsidiaries, with respect to the Opal Family, the Opal Business and, with respect to the Nephrite Group, the Diamond Business), or any interests therein, including selling, divesting or otherwise disposing of, licensing, holding separate, or otherwise restricting or limiting its freedom to operate with respect to, any business, products, rights, services, licenses, investments, or assets, of the Buyer, Sponsor, Nephrite or their respective Affiliates (other than, with respect to the Buyer and Sponsor, the Buyer’s Subsidiaries, with respect to the Opal Family, the Opal Business and, with respect to the Nephrite Group, the Diamond Business), any of their respective affiliated investment funds, including the Diamond Funds and the Opal Funds, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of the Buyer, Sponsor, Nephrite, Opal or their respective Affiliates (other than, with respect to the Opal Family, the Opal Business and, with respect to the Nephrite Group, the Diamond Business), or any interests therein. Notwithstanding anything to the contrary in this Section 10.11, none of the Parties or any of their respective Affiliates shall be required to take any action, or commit to take any action, or agree to any condition or limitation pursuant to this Section 10.11 that is not conditioned on the Closing.

Section 10.12 Communications; Press Release; SEC Filings.

(a) Prior to the Closing, any press or other public release or public announcement concerning this Agreement or the transactions contemplated by this Agreement or any matter contemplated by the foregoing shall not be issued by any of the Parties or their respective Affiliates without the prior written consent of each of the Buyer, Nephrite and Opal Group, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that each Party may make any public announcement that is required by applicable law or the requirements of any national securities exchange (it being understood that, to the extent practicable, the Party making such public announcement shall provide such announcement to the other Parties prior to release and consider in good faith any comments from such other Parties); and provided, further, that each Party may make announcements regarding this Agreement and the transactions contemplated by this Agreement consisting solely of information contained in and otherwise consistent with any such mutually agreed press release or public announcement (including, for the avoidance of doubt, the Registration Statement, Signing Form 8-K and Closing

 

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Form 8-K) to their directors, officers, employees, service providers, other material business relationships and other interested parties without the consent of the other Parties; and provided, further, that subject to this Section 10.12, the foregoing shall not prohibit any Party from communicating on a confidential basis with third parties to the extent necessary for the purpose of seeking any third-party Consent in accordance with this Agreement.

(b) As promptly as practicable following the date of this Agreement, the Buyer shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the Parties shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). The Buyer shall provide Nephrite and Opal Group with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith. The Buyer shall not file any such documents with the SEC without the prior written consent of Nephrite and Opal Group (such consent not to be unreasonably withheld, conditioned or delayed).

(c) As promptly as reasonably practicable after the date of this Agreement, but in any event within 15 Business Days following delivery of any information required to be delivered by Nephrite or Opal Group pursuant to this Section 10.12, (i) the Buyer, Nephrite and Opal Group shall prepare and the Buyer shall file with the SEC a Registration Statement and the proxy statement/prospectus to be filed with the SEC as part of the Registration Statement and sent to the Buyer Stockholders relating to the Buyer Stockholder Meeting (such proxy statement/prospectus, together with any amendments or supplements thereto, the “Proxy Statement/Prospectus”), both of which shall comply as to form, in all material respects, with the provisions of the Securities Act and Securities Exchange Act (as applicable) and the rules and regulations promulgated thereunder, for the purpose of (A) providing the Buyer Stockholders with the opportunity to participate in the Buyer Share Redemption and (B) soliciting proxies from the Buyer Stockholders to vote at the Buyer Stockholder Meeting in favor of the Buyer Stockholder Voting Matters. The Buyer shall file with the SEC, as promptly as practicable after the date of this Agreement, the Registration Statement, which shall include the Proxy Statement/Prospectus, in connection with the registration under the Securities Act of the offer and sale of the shares of Buyer Capital Stock to be issued in connection with the transactions contemplated by this Agreement. Each of the Buyer, Nephrite and Opal Group will use their respective commercially reasonable efforts to (i) cause the Registration Statement, when filed, to comply in all material respects with all legal requirements applicable thereto, (ii) respond as promptly as reasonably practicable to and resolve all comments received from the SEC or its staff concerning the Registration Statement, (iii) have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing and (iv) keep the Registration Statement effective for so long as necessary to complete the transactions contemplated by this Agreement. The Buyer shall, as promptly as reasonably practicable after the date of this Agreement, set a record date (the “Buyer Record Date”) for determining the Buyer Stockholders entitled to attend the Buyer Stockholder Meeting and will cause the Proxy Statement/Prospectus to be mailed to each Buyer Stockholder as of the Buyer Record Date as promptly as practicable after the Registration Statement is declared effective under the Securities Act. The Buyer shall promptly (and in no event later than the second Business Day following the date of this Agreement) commence a “broker search” in accordance with Rule 14a-12 of the Securities Exchange Act.

 

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(d) No filing of, or amendment or supplement to, the Registration Statement, or response to SEC comments with respect thereto, will be made by the Buyer without the prior written consent of Nephrite and Opal Group (which shall not be unreasonably withheld, conditioned or delayed) and without providing the other Parties a reasonable opportunity to review and comment thereon.

(e) The Buyer will promptly notify the other Parties upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Registration Statement, and will, as promptly as practicable after receipt thereof, provide the other Parties with copies of all material correspondence between it and its representatives, on the one hand, and the SEC, on the other hand, and all written comments with respect to the Registration Statement received from the SEC and advise the other Parties on any oral comments with respect to the Registration Statement received from the SEC. The Buyer will advise the other Parties, promptly after the Buyer receives notice thereof, of the time of effectiveness of the Registration Statement and the issuance of any stop order relating thereto, and the Buyer, Nephrite and Opal Group will use their respective commercially reasonable efforts to have any such stop order or suspension lifted, reversed or otherwise terminated.

(f) The Buyer, Nephrite and Opal Group will also use their respective commercially reasonable efforts to take any other action required to be taken under the Securities Act, the Securities Exchange Act, any applicable foreign or state securities or “blue sky” Laws and the rules and regulations thereunder in connection with the transactions contemplated by this Agreement. The Buyer, Nephrite and Opal Group shall ensure that none of the information supplied by it or them or on its or their behalf, respectively, for inclusion or incorporation by reference in (i) the Registration Statement will, at the time the Registration Statement is filed with the SEC, at each time at which it is amended and at the time it becomes effective under the Securities Act, 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, not misleading or (ii) the Proxy Statement/Prospectus will, at the date it is first mailed to the Buyer Stockholders and at the time of the Buyer Stockholders Meeting contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. If at any time prior to the Closing (including prior to the Buyer Stockholder Meeting) any information relating to the Buyer, Nephrite and Opal Group or any of their respective Affiliates, officers or directors, is discovered by the Buyer, Nephrite and Opal Group which is required to be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include a misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly inform the other Parties and each of the Buyer, Nephrite and Opal Group shall cooperate reasonably in connection with preparing an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by law, disseminating such information to the Buyer Stockholders.

(g) The Parties acknowledge that a substantial portion of the Registration Statement and certain other forms, reports and other filings required to be made by the Buyer under the Securities Exchange Act in order for the Registration Statement to be deemed effective by the SEC (collectively, “Additional Buyer Filings”) shall include disclosure regarding the Diamond

 

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Business and the Opal Business and their respective management, operations and financial condition. Accordingly, Nephrite and Opal Group agree to, and agree to cause the Diamond Transferred Companies and Opal Transferred Companies, as applicable, to, as promptly as reasonably practicable, provide the Buyer with all information concerning the Diamond Business and Opal Business, and their respective business, management, operations and financial condition, in each case, that if not disclosed therein, would cause the Registration Statement and/or Additional Buyer Filings to contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in light of the circumstances, under which they were made, not misleading. Nephrite and Opal Group shall make available, and shall cause the Diamond Transferred Companies and Opal Transferred Companies to make available, their directors, officers, managers and employees, in each case during normal business hours and upon reasonable advanced notice, to the Buyer and its counsel, auditors and other representatives, in connection with the drafting of the Registration Statement and Additional Buyer Filings, as reasonably requested by the Buyer, and responding in a timely manner to comments thereto from the SEC. The Buyer shall make all necessary filings with respect to the transactions contemplated by this Agreement under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, and Nephrite and Opal Group shall reasonably cooperate in connection therewith.

(h) At least five days prior to Closing, the Buyer shall begin preparing, and Nephrite Group and Opal Family will reasonably cooperate in preparing, a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated by this Agreement pursuant to Form 8-K (the “Closing Form 8-K”). The Buyer shall provide Nephrite and Opal Group with a reasonable opportunity to review and comment on the Closing Form 8-K prior to its filing and shall consider such comments in good faith. Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated by this Agreement (“Closing Press Release”). The Buyer shall not file any such documents with the SEC without the prior written consent of Nephrite and Opal Group (such consent not to be unreasonably withheld, conditioned or delayed). Concurrently with the Closing, the Buyer shall distribute the Closing Press Release, and within four (4) Business Days thereafter, file the Closing Form 8-K with the SEC.

(i) Nephrite and Opal Group shall each, individually, use commercially reasonable efforts to provide to the Buyer as promptly as reasonably practicable after the date of this Agreement, (i) all audited and unaudited financial statements (other than the Diamond Financial Statements and the Opal Financial Statements) of the Diamond Business and the Opal Business, respectively, and any company or business units acquired by the Diamond Transferred Companies or the Diamond Business and the Opal Transferred Companies and the Opal Business, respectively, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Registration Statement and/or the Closing Form 8-K (including pro forma financial information), (ii) all selected financial data of the Diamond Transferred Companies and the Diamond Business and the Opal Transferred Companies and the Opal Business, respectively, required by Item 301 of Regulation S-K, as necessary for inclusion in the Registration Statement and Closing Form 8-K and (iii) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the SEC (as if the Diamond Transferred Companies and the Diamond Business and the Opal Transferred Companies and the Opal Business were subject thereto) with respect to the periods described in clause (i) above, as necessary for inclusion in the Registration Statement and Closing Form 8-K.

 

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(j) Buyer Stockholder Meeting.

(i) The Buyer shall convene and hold the Buyer Stockholder Meeting, prior to or as promptly as practicable after the Buyer Record Date (which date shall be mutually agreed with Nephrite and Opal Partners). The Buyer shall use its commercially reasonable efforts to take all actions necessary to obtain the approval of the Buyer Stockholder Voting Matters at the Buyer Stockholder Meeting, including as such Buyer Stockholder Meeting may be adjourned or postponed in accordance with this Agreement, including by soliciting proxies as promptly as practicable in accordance with applicable Law for the purpose of seeking the approval of the Buyer Stockholder Voting Matters. The Buyer shall include the Buyer Board Recommendation in the Proxy Statement/Prospectus. The Buyer Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Buyer Board Recommendation.

(ii) The Buyer agrees that its obligation to establish the Buyer Record Date, duly call, give notice of, convene and hold the Buyer Stockholder Meeting for the purpose of seeking approval of the Buyer Stockholder Voting Matters shall not be affected by any intervening event or circumstance, and the Buyer agrees to establish the Buyer Record Date, duly call, give notice of, convene and hold the Buyer Stockholder Meeting and submit for the approval of the Buyer Stockholders the Buyer Stockholder Voting Matters, in each case as contemplated by this Section 10.12(j), regardless of whether there shall have occurred any intervening event or circumstance.

(iii) Notwithstanding anything to the contrary contained in this Agreement, the Buyer shall be entitled to (and in the case of the following clauses (ii) and (iv), at the request of Nephrite and Opal Group, shall) postpone or adjourn the Buyer Stockholder Meeting for a period of no longer than 15 Business Days: (i) after consultation with Nephrite and Opal Group, to ensure that any supplement or amendment to the Proxy Statement/Prospectus that the Buyer Board has determined in good faith is required by applicable Law is disclosed to the Buyer Stockholders and for such supplement or amendment to be promptly disseminated to the Buyer Stockholders prior to the Buyer Stockholder Meeting; (ii) if, as of the time for which the Buyer Stockholder Meeting is originally scheduled (as set forth in the Proxy Statement/Prospectus), there are insufficient shares of outstanding capital stock of the Buyer represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Buyer Stockholder Meeting; (iii) to seek withdrawals of redemption requests from the Buyer Stockholders; or (iv) in order to solicit additional proxies from stockholders for purposes of obtaining approval of the Buyer Stockholder Voting Matters; provided that, in the event of any such postponement or adjournment, the Buyer Stockholder Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.

 

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(k) Each Party covenants and agrees that the information supplied or to be supplied by such Party or its Affiliates expressly for inclusion in the Registration Statement, the Additional Buyer Filings, any other the Buyer SEC Filing, any document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (i) the time such information is filed, submitted or made publicly available, (ii) the time the Registration Statement (or any amendment thereof or supplement thereto) is first mailed to the Buyer Stockholders, (iii) the time of the Buyer Stockholder Meeting or (iv) the Closing (subject to the qualifications and limitations set forth in the materials provided by such Party or that are included in such filings and/or mailings).

Section 10.13 Expenses. Except as otherwise provided in this Agreement, each Party shall be solely liable for and pay all of its own costs and expenses (including attorneys’, accountants’ and investment bankers’ fees and other out-of-pocket expenses) incurred by such Party or its Affiliates in connection with the negotiation and execution of this Agreement and the Ancillary Agreements, the performance of such Party’s obligations under this Agreement and thereunder and the consummation of the transactions contemplated by this Agreement and thereby; provided, that if the Closing occurs, at and in connection therewith, Buyer shall pay or reimburse each Party for all Transaction Expenses, which shall be paid: (i) first, from the cash released from the Trust Account; and (ii) second, thereafter, if such cash is not sufficient to cover all Transaction Expenses, from other cash available to the Buyer. From and after the Closing, Buyer shall, or shall cause its Subsidiaries to, promptly pay or reimburse each Party for all Transaction Expenses to the extent not previously paid.

Section 10.14 D&O Indemnification and Insurance.

(a) Beginning on the Closing Date and continuing until the sixth anniversary of the Closing Date, the Buyer (i) shall cause each of the Diamond Transferred Companies and Opal Transferred Companies to maintain in effect all rights to indemnification, advancement of expenses, exculpation and other limitations on Liability to the extent provided in the Governing Documents of such Diamond Transferred Company or Opal Transferred Company (as applicable), or in any indemnification agreement or arrangement, in each case, in effect as of the date of this Agreement (the “D&O Provisions”) in favor of any current or former director, officer, member, manager, employee, agent or representative (in each case, or their functional equivalent) of any Diamond Transferred Company and Opal Transferred Company (collectively, with such Person’s heirs, executors or administrators, the “Transferred Companies Indemnified Persons”), in each case relating to acts, omissions, circumstances or events existing or occurring at or prior to Closing, and the Buyer shall, and shall cause each of the Diamond Transferred Companies and Opal Transferred Companies to perform and discharge such Diamond Transferred Company’s or Opal Transferred Company’s respective obligations to provide such indemnification, advancement of expenses, exculpation and other limitations of Liability from and after the Closing for a period of the later of six years or until the settlement or final adjudication of any Proceeding commenced during such period, and (ii) shall not, and shall not permit any Diamond Transferred Company or Opal Transferred Company to amend, repeal or modify in a manner adverse to the beneficiary thereof any provision in the D&O Provisions as it relates to any Transferred Companies

 

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Indemnified Person, in each case relating to acts, omissions, circumstances or events existing or occurring at or prior to Closing, without the written consent of such affected Transferred Companies Indemnified Person (it being agreed that each Transferred Companies Indemnified Person shall be a third-party beneficiary of this Section 10.14). After the Closing, in the event that any Diamond Transferred Company or Opal Transferred Company or its successors (i) consolidates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then in each such case, the Buyer shall cause proper provision to be made so that the successors of the Diamond Transferred Company and Opal Transferred Company or transferees of such Persons’ assets or properties (as applicable) shall succeed to and be bound by the obligations set forth in this Section 10.14.

(b) Without limiting the foregoing, following the Closing, Buyer shall, and shall cause each of the Diamond Transferred Companies and Opal Transferred Companies to: (i) indemnify, defend and hold harmless, and advance expenses to, the Transferred Companies Indemnified Persons with respect to all acts or omissions by them in their capacities as such at any time prior to and including the Closing (including any matters arising in connection with this Agreement or the transactions contemplated by this Agreement), to the fullest extent that Buyer and each of the Diamond Transferred Companies and Opal Transferred Companies would be permitted by applicable Law; and (ii) pay in advance of the final disposition of any actual or threatened Proceeding against any Transferred Companies Indemnified Person the expenses (including reasonable attorneys’ fees) of any Transferred Companies Indemnified Person upon receipt, if required by applicable Laws, the Governing Documents of such Diamond Transferred Company or Opal Transferred Company, as applicable, or any applicable indemnification agreement, of a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined that such Transferred Companies Indemnified Person is not entitled to be indemnified by applicable Laws. Notwithstanding anything to the contrary contained in this Section 10.14 or elsewhere in this Agreement, following the Closing, the Buyer shall not, and shall not permit any Diamond Transferred Company or Opal Transferred Company to settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any Proceeding, unless such settlement, compromise, consent or termination includes an unconditional release of all of the Transferred Companies Indemnified Persons covered by or that may be covered by the Proceeding (if any) from all Liability arising out of such Proceeding. The Buyer acknowledges and agrees that certain Transferred Companies Indemnified Persons may have rights to indemnification and advancement of expenses provided by a Seller or its respective Affiliates (each, a “Former Seller Indemnitor”), and that (i) the Buyer and the Blue Owl Companies are the indemnitor of first resort with respect to the Transferred Companies Indemnified Persons and (ii) the Buyer and the Blue Owl Companies shall be required to provide such indemnification and advance the full amount of expenses incurred by the Transferred Companies Indemnified Persons, without regard to any rights the Transferred Companies Indemnified Persons may have against any Former Seller Indemnitors and (iii) to the fullest extent permitted by Law, Buyer irrevocably waives, relinquishes and releases (on behalf of itself and the Blue Owl Companies) the Former Seller Indemnitors from any and all claims for contribution, subrogation or any other recovery of any kind in respect thereof.

(c) Tail Policy.

 

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(i) At or prior to the Closing Date, the Buyer shall purchase and maintain in effect for a period of six years thereafter, pre-paid, non-cancellable “run-off” directors and officers liability, fiduciary, professional liability and employment practices liability insurance covering those Persons who are covered as of the Closing Date under the Opal Family’s then existing respective policies (solely as they relate to the Opal Business) and with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under any of Opal Family’s then existing respective policies (solely as they relate to the Opal Business) as of the Closing Date, with respect to acts, omissions, circumstances or events existing or occurring at or prior to the Closing Date.

(ii) At or prior to the Closing Date, the Buyer shall purchase and maintain in effect for a period of six years thereafter, pre-paid, non-cancellable “run-off” directors and officers liability insurance covering those Persons who are covered as of the Closing Date under the Nephrite Group’s then existing respective policies (solely as they relate to the Diamond Business) and with other terms, conditions and retentions that are no less advantageous than the coverage provided under any of the Nephrite Group’s then existing respective policies (solely as they relate to the Diamond Business) as of the Closing Date, with respect to acts, omissions, circumstances or events existing or occurring at or prior to the Closing Date.

(iii) At or prior to the Closing Date, the Buyer shall purchase and maintain in effect for a period of six years thereafter, pre-paid, non-cancellable “run-off” directors and officers liability insurance covering those Persons who are covered as of the Closing Date under the Buyer’s then existing respective policies and with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under any of the Buyer’s then existing respective policies as of the Closing Date, with respect to acts, omissions, circumstances or events existing or occurring at or prior to the Closing Date.

Section 10.15 Employee Matters.

(a) Nephrite and Diamond shall use their reasonable efforts to cause all Automatic Transfer Employees who remain in employment to be employed by a Diamond Transferred Company effective no later than the Closing.

(b) Opal Group shall cause all current Opal Group Employees to be employed by an Opal Transferred Company effective no later than the Closing.

(c) The Parties acknowledge and agree that the Transfer Regulations will apply to transfer the employment of each Automatic Transfer Employee on or in connection with the transactions contemplated by this Agreement including Section 10.15(a) or 10.15(b). The Parties agree to comply with their respective obligations under the Transfer Regulations, including any obligation to inform and consult with the Automatic Transfer Employees or their representatives, and to cooperate in good faith to ensure that each Party and its applicable Affiliates comply with their respective obligations under the Transfer Regulations. Specifically, the Parties shall use their reasonable efforts to procure that each of their Affiliates shall reasonably cooperate with each other

 

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in connection with any notification of, provision of information to, and any consultation required with, Automatic Transfer Employees and Opal Group Employees who might be affected by the transactions contemplated by this agreement, and applicable employee representatives or any labor boards and relevant government agencies, whether required by law (including the Transfer Regulations) or pursuant to any collective agreement. Such reasonable cooperation shall include specifically:

(i) the Buyer and Opal (as applicable) providing their response to a request for any information relating to their plans for the Automatic Transfer Employees and Opal Group Employees as soon as reasonably practicable following receipt of a request in writing from the Sellers; and

(ii) the Sellers making necessary and appropriate arrangements to inform and consult, or to procure that their relevant Affiliates inform and consult, with the Automatic Transfer Employees and/or Opal Group Employees and/or any employee representatives of such employees to the extent required by and in accordance with applicable law or under any applicable collective agreement.

(d) For any Diamond Business Employee whose employment will not transfer to the Buyer or one of its Subsidiaries pursuant to the Transfer Regulations, the Buyer or one of its Subsidiaries shall not less than ten days prior to the Closing, offer employment to each such Diamond Business Employee effective at 12:00 a.m., local time on the Closing Date. Offers pursuant to this Section 10.15(d) shall be for a position commensurate with the skills and experience of such Diamond Business Employee, on terms and conditions sufficient not to trigger severance obligations, and may contain restrictive covenant obligations (including non-competition, non-solicitation, confidentiality and non-disparagement covenants) that are no more restrictive than the more restrictive of (x) the restrictive covenants that such Diamond Business Employee was bound by with Nephrite or any of its Affiliates immediately prior to the Close, or (y) the restrictive covenants of similarly situated Opal Group Employees. The Parties shall cooperate, in good faith, to ensure that each such Diamond Business Employee accepts the offer or employment with the Buyer or one of its Subsidiaries. With respect to each Diamond Business Employee who is not an Automatic Transfer Employee and is not actively employed due to a leave of absence, including short-term disability, long-term disability or workers’ compensation leave, as of immediately prior to the Closing Date (each, an “Inactive Employee”), the Buyer or one of its Subsidiaries shall make an offer of employment pursuant to this Section 10.15(d), which shall be effective upon the date on which such Inactive Employee is able to return to work; provided, that if such Inactive Employee is not able to return to work prior to the twelve-month anniversary of the Closing Date, the Buyer, Opal and their Affiliates shall have no obligation to employ such Inactive Employee. Nephrite shall retain the employment of any such Inactive Employee and be solely responsible for the provision of benefits and compensation to and all other costs and Liabilities incurred in respect of such Inactive Employee until such Inactive Employee becomes an employee of the Buyer or any of its Affiliates. No Inactive Employee shall constitute an employee of the Buyer or its Affiliate until such time that such employee commences employment with the Buyer or its Affiliate. Each Diamond Business Employee who accepts such offer of employment and actually commences employment with the Buyer or one of its Subsidiaries in accordance with this Section 10.15(d) shall be considered an “Offer Transferred Employee” (together with the Automatic Transfer Employees, the “Transferred Employees”). Nephrite shall

 

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cause each Transferred Employee to be permanently released, effective upon the Closing, from any non-competition, exclusive dealing or non-solicitation obligations in favor of Nephrite or any of its Affiliates to the extent such obligations would prevent the Transferred Employees from commencing employment with, or providing services to, the Buyer or one of its Subsidiaries in respect of any of its business lines as of the Closing or in the future (including any future lines of business). For the avoidance of doubt, the immediately preceding sentence does not require Transferred Employees to be released from the standard Nephrite Group covenants relating to restrictions on solicitation of employees and to noninterference with client relationships, to the extent that such restrictions (x) would not prohibit or impair the hiring of other Diamond Business Employees and (y) would be limited solely to a restriction on a Transferred Employee not intentionally encouraging any existing client of a Nephrite Group fund to take any action under its existing contractual relationship with such Nephrite Group fund that would have (or reasonably be expected to have) an adverse effect on such Nephrite Group fund, and which, in no event, would otherwise prohibit or impair the ability of any Transferred Employee to solicit (and raise capital from), on behalf of the Diamond Business and the Opal Business, any client or prospective client of the Nephrite Group or any Nephrite Group funds.

(e) Diamond Employee Benefit Plans. Except as set forth on Section 10.15(e) of the Diamond Disclosure Letter, from and after the Closing, Nephrite and its Affiliates (other than any Diamond Transferred Company) shall assume and retain the sponsorship of any and all Liabilities at any time arising under, pursuant to or in connection with any Diamond Employee Benefit Plan or any Diamond Affiliate Employee Benefit Plan and any Liabilities arising thereunder. From and after the Closing, Buyer or any of its Affiliates shall assume, retain, and be solely responsible for all other Liabilities relating to the employment of current or former Diamond Business Employees.

(f) 401(k) Plan Matters. Prior to the Closing Date, Nephrite and Diamond shall take all actions necessary or appropriate to cause all Transferred Employees who participate in the NB Dyal 401(k) Plan (the “Diamond 401(k) Plan”) to be fully vested in their account balances under the Diamond 401(k) Plan, and Nephrite shall make to the Diamond 401(k) Plan all employer contributions that would have been made on behalf of such employees had the transactions contemplated by this Agreement not occurred, regardless of any service or end of year employment requirements, but prorated for the portion of the plan year that ends on the Closing Date.

(g) COBRA. Nephrite shall be solely responsible for compliance with the requirements of and all Liabilities arising under Section 4980B of the Code and Part 6 of Subtitle B of Title I of ERISA, including provision of continuation coverage (within the meaning of COBRA), with respect to all “M&A qualified beneficiaries” as that term is defined in Treasury Regulation Section 54.4980B-9.

(h) Between the date of this Agreement and the Closing Date, the Parties will cooperate and take such actions as necessary to continue the participation of or to establish participation of each Diamond Business Employee and each Opal Group Employee in appropriate benefit plans effective as of the Closing Date. Nothing contained in this Section 10.15 (whether express or implied) shall confer any rights, remedies or benefits whatsoever (including any third-party beneficiary rights) on any Person other than the Parties to this Agreement.

(i) The Buyer or one of its Subsidiaries shall recognize and assume the Liability with respect to accrued but unused vacation time or paid time off (or paid annual leave, however so described) for all Transferred Employees and Opal Group Employees where such recognition is permitted by applicable Law.

 

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(j) Section 280G Matters. To the extent applicable, Nephrite will, prior to the Closing, (i) prior to the vote described in clause (ii) of this sentence, use its commercially reasonable efforts to obtain waivers of any excess parachute payment (as described below) from each Person who has or may have a right to any payments and/or benefits as a result of or in connection with the transactions contemplated by this Agreement that could be deemed to constitute “excess parachute payments” (within the meaning of Section 280G of the Code) such that the vote described in clause (ii) shall establish such Person’s right to such payment or other compensation; and (ii) use its commercially reasonable efforts to obtain the requisite stockholder vote in a manner intended to comply with Section 280G(b)(5)(A)(iii) and Section 280G(b)(5)(B) of the Code, and the regulations promulgated thereunder, including Q&A 7 of Section 1.280G-1 of such regulations, of all payments and/or benefits (including payments and benefits waived pursuant to the foregoing clause (i)) that could, as a result of, or in connection with, the transactions contemplated by this Agreement, be deemed to constitute “excess parachute payments” under Section 280G of the Code. Before the vote is submitted to stockholders, Nephrite shall provide adequate disclosure to the requisite stockholders of all material facts concerning all payments that, but for such vote, could be deemed “parachute payments” to a “disqualified individual” under Section 280G of the Code in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder. At least 15 Business Days prior to the vote, Opal Group, the Buyer and their respective counsel shall have the right to review and comment on all documents to be delivered to the stockholders in connection with such vote and any required disqualified individual waivers or consents, and Nephrite shall reflect all reasonable comments of Opal Group and the Buyer thereon. Prior to the Closing, Nephrite shall deliver to Opal Group and the Buyer reasonably satisfactory evidence that stockholder approval of the parachute payments was obtained in conformance with the applicable requirements under Section 280G of the Code, or that such stockholder approval was not obtained. Prior to the Closing Date, Nephrite shall provide Opal Group and the Buyer and their respective counsel with copies of all documents executed by the stockholders and disqualified individuals in connection with the vote provided under this Section 10.15(j). Opal Group also agrees to take the foregoing actions to the extent applicable prior to the Closing, with such terms applying mutatis mutandis to Opal Group.

(k) To the extent required in order for any Diamond Business Employees to, as Transferred Employees upon the Closing, continue to perform the scope of their duties, services and responsibilities as previously conducted for the Diamond Business, the Parties shall reasonably cooperate between the date hereof and the Closing to obtain on behalf of any Diamond Transferred Company or the Opal Family any license, qualification or other approval required in connection therewith under applicable Law.

Nothing in this Agreement shall be construed as the establishment of or amendment or termination of any benefit or compensation plan, program, contract, policy, agreement or arrangement. This Section 10.15 is intended solely for the benefit of the Parties and shall not confer any rights or remedies (including any third-party beneficiary rights) on any other Person. This Section 10.15 shall not be construed to limit the ability of the Buyer or any of its Affiliates to amend, modify or terminate any benefit or compensation plan, program, contract, policy, agreement or arrangement, or to terminate the employment or service of any Person at any time and for any or no reason, or to confer on any Person any right to employment or service or any particular term or condition of employment or service.

 

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Section 10.16 Employee Non-Solicit.

(a) the Buyer agrees that, for the period commencing from the date of this Agreement and for a period of five years after Closing, neither it nor any of its controlled Affiliates shall, directly or indirectly: (i) solicit, recruit or otherwise encourage any Nephrite Restricted Personnel to terminate their employment relationship with Nephrite or any of its Affiliates; or (ii) hire or engage any Nephrite Restricted Personnel while employed by Nephrite or any of its Affiliates or within one year of the termination of such Nephrite Restricted Personnel’s employment with Nephrite or its Affiliates, unless such employment was terminated by Nephrite or its Affiliates without cause.

(b) Nephrite agrees that, for the period commencing from the date of this Agreement and for a period of five years after Closing, neither it nor any of its controlled Affiliates shall, directly or indirectly: (i) solicit, recruit or otherwise encourage any Buyer Restricted Personnel to terminate their employment relationship with the Buyer or any of its controlled Affiliates; or (ii) hire or engage any Buyer Restricted Personnel while employed by the Buyer or any of its controlled Affiliates or within one year of the termination of such Buyer Restricted Personnel’s employment with the Buyer or its controlled Affiliates, unless such employment was terminated by the Buyer or its controlled Affiliates without cause.

Section 10.17 Equity Financing; Cooperation.

(a) During the Pre-Closing Period, the Buyer may effectuate the sale of the Buyer Class A Common Stock pursuant to one or more Subscription Agreements (in form and substance reasonably acceptable to the Buyer), Nephrite and Opal Group with Equity Financing Sources that would constitute a PIPE Financing.

(b) From and after the date of this Agreement until the earlier of the Closing and the termination of this Agreement pursuant to Section 13.1, Nephrite and Opal Group agree, and shall cause the appropriate officers and employees thereof, to use commercially reasonable efforts to cooperate in connection with (x) the arrangement of any PIPE Financing, and (y) the marketing of the transactions contemplated by this Agreement and the Ancillary Agreements in the public markets and with existing equityholders of the Buyer (including in the case of clauses (x) with respect to the satisfaction of the relevant conditions precedent), in each case as may be reasonably requested by the Buyer, including by (i) upon reasonable prior notice, participating in meetings, calls, drafting sessions, presentations, and due diligence sessions (including accounting due diligence sessions) and sessions with prospective investors at mutually agreeable times and locations (which, at the request of Nephrite and Opal Group, may be virtual) and upon reasonable advance notice (including the participation in any relevant “roadshow”), (ii) assisting with the preparation of customary materials, (iii) providing the financial statements and such other financial information regarding the Diamond Business and the Opal Business, respectively, readily available to Nephrite or Opal Group as is reasonably requested in connection therewith, subject to confidentiality obligations reasonably acceptable to Nephrite and Opal Group, (iv) taking all corporate actions that are necessary or customary to obtain PIPE Financing and market the transactions contemplated by this Agreement, and (v) otherwise reasonably cooperating in the Buyer’s efforts to obtain PIPE Financing and market the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Agreement, nothing in this

 

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Section 10.17(b) shall require any such cooperation or assistance to the extent that it could result in Nephrite or Opal Group or any of their respective Affiliates being required to (i) agree to pay any commitment or other similar fee, bear any cost or expense, incur any other Liability or give any indemnities or guarantees to any third party or otherwise commit to take any similar action in connection with any PIPE Financing prior to the Closing Date (unless such commitment or other similar fee, cost or expense shall be reimbursed), (ii) take any actions to the extent such actions would, in Nephrite’s and Opal Group’s reasonable judgment, (A) unreasonably interfere with the business of Nephrite or Opal Group or any of their respective Affiliates or otherwise interfere with the prompt and timely discharge by any employee of Nephrite or Opal Group or any of their Affiliates of their normal duties, (B) subject any director, manager, officer, employee or other representative of Nephrite or Opal Group to any actual or potential personal Liability, (C) conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the Governing Documents of Nephrite or Opal Group or any of their respective Affiliates, any applicable Law or Order or any Contract to which Nephrite or Opal Group is a party or by which any of their respective properties or assets is bound, (D) require any director, manager, officer, employee or other representative of Nephrite, Opal Group or their Affiliates to execute any document agreement, certificate or instrument that would be effective prior to the Closing, (E) require any such entity to change any fiscal period or (F) reasonably be expected to cause (x) any representation or warranty set forth in Article III, Article IV or Article V to be inaccurate or breached, (y) the failure of any closing condition set forth in Article II of this Agreement to be satisfied or any delay in the satisfaction of any such condition or (z) any other breach of this Agreement, (iii) waive or amend any terms of this Agreement or any other Ancillary Agreement, (iv) commit to take any action under any Contract, certificate, document or instrument that is not contingent upon the Closing, (v) provide access to or disclose information that Nephrite and Opal Group reasonably determine would jeopardize any attorney work product protection or attorney client privilege of, or conflict with any confidentiality requirements applicable to, Nephrite or Opal Group or any of their respective Affiliates, (vi) cause any director, manager or equivalent of Nephrite, Opal Group or any of their respective Affiliates to pass resolutions to approve any PIPE Financing or authorize the creation of any Contracts, documents or actions in connection therewith or (vii) deliver or cause to be delivered any legal opinion or negative assurance letter. In no event shall any Transferred Companies Indemnified Person and any current or former director, officer, member, manager, employee, agent or representative (in each case, or their functional equivalent) of (x) Nephrite or any of its Affiliates (collectively, with such Person’s heirs, executors or administrators, the “Nephrite Indemnified Persons”) or (y) Opal Group, Opal Feeder or Opal Partners or any of their respective Affiliates (collectively, with such Person’s heirs, executors or administrators, the “Opal Indemnified Persons” and, together with the Nephrite Indemnified Persons and the Transferred Companies Indemnified Persons, the “Financing Indemnified Persons”) be required to bear any cost or expense, pay any fee, enter into any definitive agreement or incur any other Liability in connection with any PIPE Financing. From and after the Closing, the Buyer shall, or shall cause its Subsidiaries to, promptly, upon request by any Financing Indemnified Person, reimburse such Financing Indemnified Person for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by such Financing Indemnified Person in connection with such PIPE Financing, including the cooperation of Nephrite and Opal Group and their respective Affiliates contemplated by this Section 10.17(b), and shall indemnify and hold harmless the Financing Indemnified Person from and against any and all losses suffered or incurred, whether before, at or after the Closing, by any of them arising out of or relating to the arrangement of such PIPE Financing and any information used in connection therewith.

 

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(c) From and after the date of this Agreement until the earlier of the Closing and the termination of this Agreement pursuant to Section 13.1, the Buyer shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements, in each case, on the terms and conditions described therein, including maintaining in effect such Subscription Agreements and shall use its commercially reasonable efforts to: (i) cause all conditions to have been satisfied in all material respects on a timely basis or waived all conditions and covenants applicable to the Buyer in such Subscription Agreements and otherwise comply with its obligations thereunder and (ii) in the event that all conditions in such Subscription Agreements (other than conditions that the Buyer or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, consummate transactions contemplated by such Subscription Agreements at or prior to Closing, including enforcing its rights under the Subscription Agreements to cause any such investors to the Subscription Agreements to pay to (or as directed by) the Buyer the applicable purchase price under each such investor’s applicable Subscription Agreement in accordance with its terms. Without limiting the generality of the foregoing, the Buyer shall give Nephrite and Opal Group prompt written notice: (A) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could give rise to any breach or default) by any party to any Subscription Agreement known to the Buyer; (B) of the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement and (C) if the Buyer does not expect to receive all or any portion of the PIPE Investment Amount on the terms, in the manner or from the Equity Financing Sources contemplated by the Subscription Agreements. The Buyer shall deliver all notices it is required to deliver under the Subscription Agreements on a timely basis in order to cause the Equity Financing Sources to consummate the transactions contemplated by the Subscription Agreements concurrently with the Closing.

Section 10.18 Stock Transactions. During the Pre-Closing Period, except as otherwise contemplated by this Agreement, neither the Nephrite Group nor the Opal Family, directly or indirectly, shall engage in any transactions involving the securities of the Buyer without the prior written consent of the Buyer.

Section 10.19 The Buyer Certificate of Incorporation and the Buyer Bylaws. Subject to receipt of the Required Vote, immediately prior to the Closing, the Buyer shall (a) file the Buyer Certificate of Incorporation substantially in the form attached to this Agreement as Exhibit A, in accordance with the provisions of this Agreement and the DGCL and (b) adopt the Buyer Bylaws substantially in the form attached to this Agreement as Exhibit B as its bylaws until thereafter amended in accordance with the provisions thereof, the Buyer Certificate of Incorporation and the DGCL.

Section 10.20 Name Change. In connection with the Closing, the Buyer will complete the Name Change.

 

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Section 10.21 Exclusivity.

(a) From the date of this Agreement, until the earlier of the Closing or the termination of this Agreement in accordance with Section 13.1, neither the Nephrite Group (solely to the extent related to the Diamond Business), nor the Opal Family (solely to the extent related to the Opal Business) shall, directly or indirectly (i) solicit, initiate or take any action to facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from any Person or group of Persons other than the Buyer and the Sponsor (and their respective representatives, acting in their capacity as such) (a “Competing Buyer”) that may constitute, or could reasonably be expected to lead to, a Competing Transaction; (ii) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Competing Buyer regarding a Competing Transaction; (iii) furnish (including through any virtual data room) any information relating to the Nephrite Group (solely to the extent related to the Diamond Business) or the Opal Family (solely to the extent related to the Opal Business) (as applicable), or afford access to the assets, business, properties, books or records relating to the Nephrite Group (solely to the extent related to the Diamond Business) or the Opal Family (solely to the extent related to the Opal Business) (as applicable) to a Competing Buyer, in all cases for the purpose of assisting with or facilitating, or that could otherwise reasonably be expected to lead to, a Competing Transaction; (iv) approve, endorse or recommend any Competing Transaction; or (v) enter into a Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Competing Transaction or publicly announce an intention to do so.

(b) From the date of this Agreement, until the earlier of the Closing or the termination of this Agreement in accordance with Section 13.1, the Buyer shall not directly or indirectly (including by or through the Sponsor), (i) solicit, initiate or take any action to facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from any Person or group of Persons other than the Sellers (an “Alternative Target”) that may constitute or could reasonably be expected to lead to, a Buyer Competing Transaction, (ii) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Alternative Target regarding a Buyer Competing Transaction; (iii) furnish (including through any virtual data room) any non-public information relating to the Buyer or any of its assets or businesses, or afford access to the assets, business, properties, books or records of the Buyer to an Alternative Target, in all cases for the purpose of assisting with or facilitating, or that could otherwise reasonably be expected to lead to, a Buyer Competing Transaction; (iv) approve, endorse or recommend any Buyer Competing Transaction; or (v) enter into a Buyer Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Buyer Competing Transaction or publicly announce an intention to do so.

Section 10.22 Diamond Transition Services. Between the date of this Agreement and the Closing Date, (a) Nephrite, Opal Group and the Buyer shall cooperate in good faith to prepare and mutually agree on a customary form of transition services agreement (including schedules thereto) to be executed as of the Closing Date and covering transition services as mutually agreed to be provided by Nephrite to the Diamond Business and (b) Nephrite shall use commercially reasonable efforts to take such steps as are necessary to prepare to provide the services that would be provided pursuant to the transition services agreement in accordance with all applicable Laws. From and after the Closing until the 10th anniversary of the Closing Date (notwithstanding the termination

 

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of any such transition services agreement prior to such time), during regular business hours and upon reasonable prior written request, (i) Nephrite Group shall afford the Buyer and the Blue Owl Companies (and their respective representatives) with reasonable access to the books and records of the Diamond Transferred Companies and the Diamond Business in the control of any member of the Nephrite Group for purposes of complying with applicable Law and/or regulation (including the right to copy at the Buyer’s and the Blue Owl Companies’ sole expense) and (ii) Nephrite Group shall (and shall cause its compliance, regulatory and similar personnel to) reasonably cooperate with the Buyer and the Blue Owl Companies from and after the Closing in connection with investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding brought or threatened to be brought by the Buyer or the Blue Owl Companies or their respective Affiliates arising under this Agreement), or preparing reports to Governmental Entities, with respect to the Diamond Transferred Companies and/or the Diamond Business relating to or encompassing any time prior to the Closing; provided, that notwithstanding anything in this Section 10.22 to the contrary, Nephrite Group shall not be required to provide any access or information or cooperation which constitutes information protected by attorney-client privilege or which would violate any obligation owed to a third party under Contract or Law; provided, further, that Nephrite Group shall use commercially reasonable efforts to cooperate in connection with providing reasonable access, information or cooperation that does not cause a loss of such privilege or a violation of such obligations. Notwithstanding the foregoing, but without limiting any of the foregoing, the transition services agreement shall not include compliance, legal or regulatory services. This Section 10.22 shall not apply to Taxes or Tax matters, which are the subject of Article XII.

Section 10.23 Treatment of Certain Assets and Liabilities.

(a) If, after the Closing Date, any member of the Nephrite Group is found to have retained any interests, assets, property or rights of the Diamond Business constituting a Diamond Asset (the “Other Diamond Assets”) that, in accordance with the terms of this Agreement, should have been transferred as a result of the Diamond Reorganization or otherwise to the Buyer or any of the Blue Owl Companies at the Closing, Nephrite shall, or shall cause one of its Affiliates to, notify the Buyer and remit or transfer any such Other Diamond Assets promptly to the Buyer or an entity designated by the Buyer. Without limitation of the foregoing, if, after the Closing Date, any member of the Nephrite Group receives payment in respect of the Diamond Business, the Diamond Assets and/or the Diamond Transferred Companies (including payment to an account maintained by a member of the Nephrite Group prior to the Closing for purposes of conducting the Diamond Business) that constitutes a Diamond Asset, Nephrite shall deliver such payments to an account designated by the Buyer in writing by wire transfer of immediately available funds. If, after the Closing Date, the Buyer or its controlled Affiliates (including Blue Owl Holdings or Blue Owl Carry) is found to have received any interests, assets, property or rights of the Excluded Diamond Assets or any other interests, assets, property or rights of Nephrite Group that do not constitute Diamond Assets that should have been retained (the “Misplaced Diamond Assets”), the Buyer shall, or shall cause one of its Affiliates to, notify Nephrite and remit or transfer any such Misplaced Diamond Assets promptly to Nephrite or an entity designated by Nephrite. Without limitation of the foregoing, if, after the Closing Date, any Diamond Transferred Company receives payment in respect of the Excluded Diamond Assets or any other interests, assets, property or rights of Nephrite Group that do not constitute Diamond Assets, the Diamond Transferred Companies shall deliver such payments to an account designated by Nephrite in writing by wire

 

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transfer of immediately available funds. Without limiting the generality of the foregoing, with respect to any Other Diamond Asset or Misplaced Diamond Asset, the Parties shall, and shall cause their respective Affiliates to, (i) execute all such agreements, deeds or other documents as may be necessary for the purposes of transferring, assigning and conveying such Other Diamond Asset or Misplaced Diamond Asset (or part thereof), as applicable, or the relevant interests in them to the other Party, (ii) use commercially reasonable efforts to obtain all consents from Persons necessary or appropriate for the purposes of transferring, assigning, and conveying such Other Diamond Asset or Misplaced Diamond Asset (or part thereof), as applicable, or the relevant interests in them to the other Party, (iii) complete all such further acts or things as the other Party may reasonably direct in order to transfer, assign, and convey such Other Diamond Asset or Misplaced Diamond Asset (or parts thereof), as applicable, or the relevant interests in them to the other Party, (iv) hold such Other Diamond Asset or Misplaced Diamond Asset (or part thereof), as applicable, in trust for the other Party (to the extent permitted by applicable Law) until such time as the transfer is validly effected to vest the asset (or part thereof) or relevant interest in the Other Diamond Asset or Misplaced Diamond Asset, as applicable, to the other Party, and (v) until such time as such Other Diamond Asset or Misplaced Diamond Asset, as applicable, is transferred to the appropriate Party, comply with all applicable covenants and obligations with respect to any such Other Diamond Asset or Misplaced Diamond Asset held by it, including the payment of any costs and expenses in connection therewith, which shall be performed by such Party or its applicable Affiliate for the other Party’s account and such other Party shall promptly reimburse such party for any such out-of-pocket costs, expenses or payments.

(b) If, after the Closing Date, Opal Partners, Opal Feeder or any of their respective Affiliates that is not an Opal Transferred Company is found to have retained any interests, assets, property or rights of the Opal Business constituting an Opal Asset (the “Other Opal Assets”) that, in accordance with the terms of this Agreement, should have been transferred as a result of the Opal Reorganization or otherwise to the Buyer or any of the Blue Owl Companies at the Closing, Opal Feeder shall, or shall cause one of its Affiliates to, notify the Buyer and remit or transfer any such Other Opal Assets promptly to the Buyer or an entity designated by the Buyer. Without limitation of the foregoing, if, after the Closing Date, any member of the Opal Group receives payment in respect of the Opal Business, the Opal Assets and/or the Opal Transferred Companies (including payment to an account maintained by a member of the Opal Group prior to the Closing for purposes of conducting the Opal Business) that constitutes an Opal Asset, Opal Feeder shall deliver such payments to an account designated by the Buyer in writing by wire transfer of immediately available funds. If, after the Closing Date, the Buyer or its controlled Affiliates (including Blue Owl Holdings or Blue Owl Carry) is found to have received any interests, assets, property or rights of the Retained Opal Business or any other interests, assets, property or rights of the Opal Family that do not constitute Opal Assets that should have been retained (the “Misplaced Opal Assets”), the Buyer shall, or shall cause one of its Affiliates to, notify Opal Feeder and remit or transfer any such Misplaced Opal Assets promptly to Opal Feeder or an entity designated by Opal Feeder. Without limitation of the foregoing, if, after the Closing Date, any Opal Transferred Company receives payment in respect of the Retained Opal Business or any other interests, assets, property or rights of Opal Family that do not constitute Opal Assets, the Opal Transferred Companies shall deliver such payments to an account designated by Opal Feeder in writing by wire transfer of immediately available funds. Without limiting the generality of the foregoing, with respect to any Other Opal Asset or Misplaced Opal Asset, the Parties shall, and shall cause their respective Affiliates to, (i) execute all such agreements, deeds or other documents

 

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as may be necessary for the purposes of transferring, assigning and conveying such Other Opal Asset or Misplaced Opal Asset (or part thereof), as applicable, or the relevant interests in them to the other Party, (ii) use commercially reasonable efforts to obtain all consents from Persons necessary or appropriate for the purposes of transferring, assigning, and conveying such Other Opal Asset or Misplaced Opal Asset (or part thereof), as applicable, or the relevant interests in them to the other Party, (iii) complete all such further acts or things as the other Party may reasonably direct in order to transfer, assign, and convey such Other Opal Asset or Misplaced Opal Asset (or parts thereof), as applicable, or the relevant interests in them to the other Party, (iv) hold such Other Opal Asset or Misplaced Opal Asset (or part thereof), as applicable, in trust for the other Party (to the extent permitted by applicable Law) until such time as the transfer is validly effected to vest the asset (or part thereof) or relevant interest in the Other Opal Asset or Misplaced Opal Asset, as applicable, to the other Party, and (v) until such time as such Other Opal Asset or Misplaced Opal Asset, as applicable, is transferred to the appropriate Party, comply with all applicable covenants and obligations with respect to any such Other Opal Asset or Misplaced Opal Asset held by it, including the payment of any costs and expenses in connection therewith, which shall be performed by such Party or its applicable Affiliate for the other Party’s account and such other Party shall promptly reimburse such party for any such out-of-pocket costs, expenses or payments.

Section 10.24 Net Capital Requirements. The Opal Broker-Dealer Subsidiary will maintain “net capital” (as such term is defined in Rule 15c3-1(c)(2) under the Exchange Act) equal to or in excess of the minimum “net capital” required to be maintained by it under the Exchange Act.

Section 10.25 Mixed-Use Contracts.

(a) Any Diamond Asset which is a Contract that is only partially intended to be assigned (because it is primarily, but not exclusively, related to the Diamond Business) as part of the Diamond Reorganization (each such Contract, a “Shared Diamond Reorganization Contract”) shall be assigned only with respect to (and preserving the meaning of) those parts that are intended to be assigned to the applicable Diamond Transferred Company, if so assignable or appropriately amended, so that the intended Diamond Transferred Company will be (i) entitled to the rights and benefits of those parts of the Shared Diamond Reorganization Contract that are intended to be assigned and (ii) be responsible for the liabilities contemplated to be assumed by such intended Diamond Transferred Company with respect to such Diamond Asset. If any Shared Diamond Reorganization Contract cannot be assigned by its terms or otherwise, or cannot be amended, without any Consent, and such Consent cannot be obtained or if it is otherwise not practical to assign a Shared Diamond Reorganization Contract in part, then, until the earlier of such time as such Consent has been obtained or a renegotiation of such Shared Diamond Reorganization Contract and execution of new Contracts with the related counterparties shall have been concluded (or until such Contract expires), Nephrite shall, and shall cause its Affiliates to, use commercially reasonable efforts to establish an alternative agency-type arrangement pursuant to which, to the fullest extent practicable, (A) the economic and other claims, rights and benefits of such Shared Diamond Reorganization Contract intended to be provided to an intended Diamond Transferred Company are provided to such intended Diamond Transferred Company and such intended Diamond Transferred Company bears all costs and liabilities contemplated to be borne by such intended Diamond Transferred Company with respect to such Shared Diamond Reorganization

 

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Contract and (B) all other rights and liabilities under such Shared Diamond Reorganization Contract are retained by Nephrite and its Affiliates (other than the Diamond Transferred Companies). For the avoidance of doubt, (i) any Liabilities described in clause (A) of the preceding sentence shall constitute Diamond Liabilities and (ii) any Liabilities described in clause (B) of the preceding sentence shall constitute Retained Diamond Liabilities.

(b) If any Consent required for the assignment, conveyance or transfer of a Diamond Asset contemplated to be assigned, conveyed or transferred as part of the Diamond Reorganization cannot be obtained in accordance with Section 10.4, then the Parties will use commercially reasonable efforts to cooperate on the implementation of an alternative agency-type arrangement pursuant to which, to the fullest extent practicable, the economic and other claims, rights and benefits of such Diamond Asset are provided to the intended Diamond Transferred Company of such Diamond Asset and such intended Diamond Transferred Company bears all costs and liabilities contemplated to be borne by such intended Diamond Transferred Company with respect to such Diamond Asset and arrangement. For the avoidance of doubt, any Liabilities under such Diamond Asset or otherwise arising out of any such arrangement shall constitute a Diamond Liability. Notwithstanding any other provision of this Agreement, this Agreement shall not constitute an agreement to, directly or indirectly, assign, convey or transfer any Diamond Asset, if such assignment, transfer or conveyance, without the Consent of any Person or otherwise, (i) would constitute a breach or other contravention of the rights of such Person or (ii) would be ineffective under, or contravene, applicable Law.

(c) For the avoidance of doubt, this Section 10.25, shall not apply to any Client Contracts (which are governed by Section 10.1).

Section 10.26 Specified Matters. Without breach of any representation, warranty, covenant or agreement herein (including for purposes of any certificate delivered hereunder), Opal Feeder may take such actions as it reasonably determines in good faith in order to provide, in resolution of the Opal Special Liabilities, for the issuance of shares of Buyer at or after Closing, and Buyer shall take such actions within its control to cause the issuance of such shares; provided, however, that, in all cases, any such issuance or other economic impact of such actions shall be included in the reduction to the Opal Equity Consideration. Opal Feeder shall keep Buyer and Nephrite reasonably informed regarding the status of the matters described in this Section 10.26.

Section 10.27 FIC Dissolution. Reasonably promptly following the Closing, the Buyer shall cause Opal Group FIC Holdings to be dissolved.

Section 10.28 Placement Agreement. With respect to the marketing and distribution of interests in Diamond Capital Partners V, during the Pre-Closing Period the Parties will use commercially reasonable efforts to enter into a placement agreement with Neuberger Berman BD LLC under which Neuberger Berman BD LLC shall provide customary placement agency services following the Closing to the Diamond Business in respect of the marketing and distribution of interest in Diamond Capital Partners V for no fee (other than disbursements to third parties for placement fees specifically approved by the Diamond Business). With respect to any successor fund thereto, Nephrite or its Affiliate may, if and to the extent agreed to by the parties, provide, on mutually agreeable terms, placement agency services to the Diamond Business in respect of the marketing and distribution of interest of such funds.

 

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Section 10.29 Participation Agreement. To provide for the agreed 85% / 15% split of the Promote Distributions, during the Pre-Closing Period, the appropriate Parties shall enter into an agreement or arrangement with respect to the revenue associated with the incentive fee attributable to the Diamond Finance Fund. In addition, the appropriate parties shall enter into an agreement or arrangement to document Nephrite’s right to allocate rights and obligations associated with 34% of Promote Distributions (net of Specified Equity) arising from the first successor fund to follow Diamond Fund V and 22 2/3% of the Promote Distributions (net of Specified Equity) arising from the second successor fund to follow Diamond Fund V, it being understood, for the avoidance of doubt, that such allocations shall be made out of the 85% of Promote Distributions that are not Diamond Assets.

Section 10.30 Net Working Capital; Indebtedness. Each of Opal Feeder, Opal Partners, Opal Group and Nephrite shall take such reasonable actions within its control, including in the case of Opal Group by reducing quarterly distributions after the date hereof and in the case of Nephrite by delivering cash to the extent necessary as part of the Diamond Assets, such that the Opal Closing Adjustment Amount and the Diamond Closing Adjustment Amount, as the case may be, shall be $0. Subject only to the foregoing, nothing herein shall limit Opal Group from making cash distributions consistent with past practice or require Nephrite to deliver cash as a Diamond Asset.

Section 10.31 Aggregator Formation. As promptly as practicable after the date hereof, the Parties will, without reducing the rights of Nephrite or any Permitted Transferee under the Investor Rights Agreement, negotiate in good faith an agreement on the rights of the NB Aggregator and NB Aggregator Subject Members under the Investor Rights Agreement, the A&R Blue Owl Holdings LP Agreement and the A&R Blue Owl Carry LP Agreement and the other Ancillary Agreements and what rights of Nephrite remain applicable notwithstanding such dispersed ownership and attempt to reflect such agreement in revised versions (with such references to each such agreement in this Agreement, thereafter being updated to include such agreed amendments) including how ownership of Equity Securities by NB Aggregator and the NB Aggregator Subject Members (as opposed to Nephrite) count towards governance rights of Nephrite and any ownership thresholds applicable thereto (including as to which of Nephrite’s rights under Article II of the Investor Rights Agreement remain in effect notwithstanding such Transfers), how to provide for orderly transfer of shares by NB Aggregator and NB Aggregator Subject Matters under the Investor Rights Agreement, the Exchange Agreement or any other Ancillary Agreement given dispersed ownership, and methods to provide for communication and coordination through Nephrite and NB Aggregator with respect to the exercise of any rights or obligations of any NB Aggregator Subject Member under the Investor Rights Agreement, the Exchange Agreement or any other Ancillary Agreement. If such agreement has not been entered into among the Parties as of the Closing and no subsequent agreement has been reached prior to the expiration of the Initial Period, the NB Aggregator Subject Members shall be deemed not to be a Permitted Transferee of Nephrite for purposes of determining the NB First Ownership Threshold solely with respect to the Fall-Away Rights, and if as a result thereof, the NB First Ownership Threshold would not be satisfied as of the expiration of the Initial Period without inclusion of such NB Aggregator Subject Members, upon the expiration of the Initial Period, then the rights of Nephrite pursuant to Sections 2.3(a)(ii), 2.3(a)(v), 2.3(a)(vi) and 2.3(a)(viii) of the Investor Rights Agreement (collectively, the “Fall-Away Rights”) (and, for the avoidance of doubt (but without limiting any other termination or expiration (e.g., pursuant to Section 2.3(a)(ix) of the Investor Rights Agreement or because the NB First Ownership Threshold was otherwise not satisfied), only such rights) shall expire and be of no further force or effect from and after the expiration of the Initial Period. For the avoidance of doubt, the NB Aggregator Subject Members shall, subject to Section 3.16(b) of the Investor Rights Agreement, (i) from and after the Closing Date, be counted as a Permitted Transferee for purposes of determining the applicable thresholds for any purpose under the Investor Rights Agreement, and (ii) continue to be so counted after the expiration of the Initial Period for any purpose under the Investor Rights Agreement other than the Fall-Away Rights. Capitalized terms used in this Section 10.31 but not otherwise defined therein shall have the meanings ascribed thereto in the Investors Rights Agreement. For the avoidance of doubt, nothing in this Section 10.31 is intended to apply to Dyal SLP, the Dyal Principals, any Dyal SLP Aggregator or any Dyal SLP Aggregator Subject Members (each as defined in the Investor Rights Agreement), and no amendments or modifications to the Investor Rights Agreement or any applicable Ancillary Agreements contemplated by this Section 10.31 shall reduce, limit or restrict any of the rights of Dyal SLP, the Dyal Principals, any Dyal SLP Aggregtor or any Dyal SLP Aggregator Subject Members.

 

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Article XI

ADDITIONAL AGREEMENTS

Section 11.1 Access to Books and Records.

(a) From and after the Closing, (i) the Buyer and its Subsidiaries shall make or cause to be made available to Nephrite (including the right to copy at Nephrite’s sole expense) all books, records and documents (including in electronic form) relating to periods prior to the Closing Date of any Diamond Transferred Company (and the reasonable assistance of employees responsible for such books, records and documents) during regular business hours and upon reasonable prior written request as may be reasonably necessary for (x) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding brought or threatened to be brought by Nephrite or its Subsidiaries arising under this Agreement), (y) preparing reports to Governmental Entities or (z) any other reasonable business purpose; and (ii) the Buyer and its Subsidiaries shall make or cause to be made available to Opal Feeder and Opal Partners (including the right to copy at their respective sole expense) all books, records and documents (including in electronic form) relating to periods prior to the Closing Date of any Opal Transferred Company (and the reasonable assistance of employees responsible for such books, records and documents) during regular business hours and upon reasonable prior written request as may be reasonably necessary for (x) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding brought or threatened to be brought by Opal Feeder, Opal Partners or their respective Affiliates arising under this Agreement), (y) preparing reports to Governmental Entities or (z) any other reasonable business purpose.

(b) From and after the Closing, each of the Nephrite Group (solely to the extent related to the Diamond Business) and the Opal Business (solely to the extent related to the Opal Business) shall make or cause to be made available to the Buyer (including the right to copy at the Buyer’s sole expense) all books, records and documents (including in electronic form) relating to periods prior to the Closing Date of the Diamond Business (including the Diamond Related Business Records) or the Opal Business (to the extent not transferred at Closing), as applicable (and the reasonable assistance of employees responsible for such books, records and documents) during regular business hours and upon reasonable prior written request as may be reasonably necessary for (x) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding brought or threatened to be brought by the Buyer or its Affiliates arising under this Agreement), (y) preparing reports to Governmental Entities or (z) any other reasonable business purpose.

(c) The Buyer shall cause (at its sole expense) (i) each Diamond Transferred Company to maintain and preserve all such books, records and other documents in the possession of the Diamond Transferred Companies as of the Closing Date for the greater of (x) six years after the Closing Date and (y) any applicable statutory or regulatory retention period, as the same may be extended; and (ii) each Opal Transferred Company to maintain and preserve all such books,

 

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records and other documents in the possession of the Opal Transferred Companies as of the Closing Date for the greater of (x) six years after the Closing Date and (y) any applicable statutory or regulatory retention period, as the same may be extended. Notwithstanding anything in this Section 11.1 to the contrary, the Parties shall not be required to provide any access or information to any other Party which constitutes information protected by attorney-client privilege or which would violate any obligation owed to a third party under Contract or Law; provided that the Parties shall use commercially reasonable efforts to cooperate in connection with providing reasonable access in a manner that does not cause a loss of such privilege or a violation of such obligation. This Section 11.1 shall not apply to Taxes or Tax matters, which are the subject of Article XII.

(d) In connection with the Closing, the Parties will cooperate for the transfer of any Diamond Related Business Records that are primarily but not exclusively related to the Diamond Assets and the Diamond Funds to the extent reasonably necessary for the continuing operation of the Diamond Business.

(e) Notwithstanding anything to the contrary in Section 3.11(b) or this Section 11.1 (except for the following sentence), the Buyer acknowledges and agrees that (i) Nephrite is entitled to retain (x) copies of (1) the Diamond Acquired Business Records, including the Diamond Track Record and (2) the Diamond Related Business Records, and (y) all books, records and documents supporting (1) the Diamond Acquired Business Records and (2) the Diamond Related Business Records, in each case relating to periods prior to the Closing Date and (ii) following the Closing, the Nephrite Group may solely use such copies solely to the extent the Nephrite Group determines in good faith (upon advice of counsel) that such use is necessary for (w) regulatory or compliance purposes, (x) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding, (y) preparing reports to Governmental Entities as required by applicable Law or (z) in preparation of, in connection with, or in response to, an exam, by a Governmental Entity (and, in each case, in such event solely for the foregoing purposes). For the avoidance of doubt, following the Closing, the Nephrite Group shall not use the Diamond Acquired Business Records for any purpose other than as expressly contemplated by the foregoing sentence.

Section 11.2 Nephrite Name.

(a) The Buyer acknowledges and agrees that (i) the Buyer is not acquiring, and the Diamond Business is not retaining, any right, title or interest in or to, or right to use, any Nephrite Marks and (ii) following the Closing, the Buyer and its Subsidiaries shall not have any right, title or interest in or to, or right to use, and the Buyer covenants that the Buyer and its Subsidiaries will not from and after the date of this Agreement adopt, use, apply to register or register, or authorize others to adopt, use, apply to register or register, any names or trademarks consisting of, incorporating or confusingly similar to any Nephrite Marks, except as expressly set forth in Section 11.2(b).

(b) The Buyer and its Subsidiaries may utilize materials and assets (including stationery, forms, business cards and other similar items) that bear the Nephrite Marks as of the Closing Date for up to ninety (90) calendar days following the Closing Date. As soon as practicable, but in no event later than ninety (90) calendar days following the Closing Date, the Buyer shall, and shall cause its Subsidiaries to, remove, strike over, or otherwise obliterate all Nephrite Marks

 

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from all assets and materials owned or used by the Buyer and its Subsidiaries. Any use by the Buyer and its Subsidiaries under this Section 11.2(b) of any materials and assets that bear the Nephrite Marks is subject to the Buyer and its Subsidiaries’ use of such materials and assets in a form and manner, and with standards of quality, as in effect for such materials, assets and Nephrite Marks as of the Closing Date. The Buyer and its Subsidiaries shall not use the Nephrite Marks in a manner that may reflect negatively on such marks or on the Nephrite Group. Nephrite may terminate the foregoing license, effective immediately, if the Buyer and its Subsidiaries fails to comply with the foregoing terms and conditions. Notwithstanding the foregoing, nothing in this Agreement shall be construed to prohibit use of the Nephrite Marks by the Buyer and its Subsidiaries in a manner that would constitute “fair use” under applicable Law, including to refer factually to the former ownership by the Nephrite Group of the Diamond Business; provided that such references do not use any logo or stylized font associated with the Nephrite Group.

Section 11.3 Buyer Name. Promptly following the Closing, Buyer will cease all use of the name “Altimar Acquisition Corporation” (the “Buyer Name”), including as part of its corporate name, provided that the foregoing shall not prohibit Buyer and its Affiliates from using the Buyer Name in a neutral, non-trademark manner to describe Buyer’s history. Buyer further agrees that to the extent that it owns any rights, title or interest in or to the Buyer Name, whether by operation of law or otherwise, from and after the Closing it irrevocably transfers and assigns any and all such rights to Sponsor.

Article XII

TAX MATTERS

Section 12.1 Tax Returns.

(a) The Applicable Representative shall prepare and file, or cause to be prepared and filed (and, if applicable, the Buyer shall cooperate in filing), at the cost and expense of the Blue Owl Companies all applicable Income Tax Returns of each Blue Owl Flow-Thru Company for any taxable period ending on or prior to the Closing Date and that are due after the Closing Date (collectively, the “Sellers Prepared Returns”). Each Sellers Prepared Return shall be prepared in a manner consistent with the applicable Transferred Company’s past practices except as otherwise required by applicable Law. Each Sellers Prepared Return filed after the Closing Date (taking into account applicable extensions) shall be submitted to the Buyer and the Other Representative for review no later than 30 days prior to the due date for filing such Tax Return (taking into account applicable extensions). The Applicable Representative shall consider in good faith all reasonable comments received from the Buyer and the Other Representative in writing no later than the 10th day prior to the due date for filing any such Tax Return (taking into account applicable extensions), and shall not file any such Tax Return without the consent of the Buyer and the Other Representative, such consent not to be unreasonably withheld, conditioned, or delayed. No filed Sellers Prepared Return may be amended after the Closing without the prior written consent of the Buyer, the Applicable Representative, and the Other Representative, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer shall prepare and file, or cause to be prepared and filed, at the cost and expense of the Blue Owl Companies, all Tax Returns of the Blue Owl Companies (other than Sellers Prepared Returns) for any taxable period ending on or before the Closing Date or for any Straddle Period, in each case that are due after the Closing Date (taking into account applicable extensions) (the “Buyer Prepared Returns”). Each

 

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Buyer Prepared Return shall be prepared in a manner consistent with the Transferred Companies’ past practices except as otherwise required by applicable Law. Each Buyer Prepared Return that is an Income Tax Return or that could give rise to an indemnification obligation under this Agreement shall be submitted to the Applicable Representative and the Other Representative no later than the 30th day prior to the due date for filing such Tax Return (taking into account applicable extensions). The Buyer shall consider in good faith all reasonable comments received from the Applicable Representative and the Other Representative in writing no later than the 10th day prior to the due date for filing any such Tax Return (taking into account applicable extensions), and shall not file any such Tax Return without the consent of the Applicable Representative and the Other Representative, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, each Income Tax Return for any Blue Owl Company (including the Transferred Companies) for a taxable period that includes the Closing Date (x) for which the “interim closing method” under Section 706 of the Code (or any similar provision of state, local or non-U.S. Law) is available shall be prepared in accordance with such method (with such interim closing occurring as of the Closing Date), (y) for which an election under Section 754 of the Code (or any similar provision of state, local or non-U.S. Law) may be made shall make such election (if not already in effect from a prior period, which election shall not be revoked) and (z) shall be prepared in a manner such that any and all deductions, losses, or credits of any of the Blue Owl Companies resulting from, attributable to or accelerated by the payment of the Transaction Expenses in connection with the transactions contemplated by this Agreement are reported by the Blue Owl Companies and allocated to the taxable period (or portion thereof) beginning after the Closing Date to the maximum extent permitted by applicable Law (and the parties agree that 70% of any success-based fees shall be deductible for U.S. federal or state income tax purposes pursuant to Revenue Procedure 2011-29, 2011-18 IRB to the extent permitted by applicable Law). For the avoidance of doubt, all Tax Returns of each Blue Owl Company (other than Sellers Prepared Returns and the Buyer Prepared Returns) that are filed after the Closing Date shall be prepared and filed in accordance with the terms of the A&R Blue Owl Holdings LP Agreement or the A&R Blue Owl Carry LP Agreement, as applicable.

(b) After the Closing, without the prior written consent of the Applicable Representative (which consent shall not be unreasonably withheld, conditioned or delayed), the Buyer shall not (and shall neither cause nor permit any Blue Owl Company to) take any of the following actions: (A) file (except for Sellers Prepared Returns and the Buyer Prepared Returns as permitted under and in accordance with Section 12.1(a)), amend, re-file or otherwise modify any Tax Return relating in whole or part to any Blue Owl Company with respect to any Pre-Closing Tax Period or that could give rise to an indemnification obligation under this Agreement, (B) enter into an agreement to extend the statute of limitations with respect to Tax Returns relating in whole or part to any Blue Owl Company with respect to any Pre-Closing Tax Period or that could give rise to an indemnification obligation under this Agreement, (C) make any Tax election or take any position on any Tax Return with respect to any Blue Owl Company that would have retroactive effect to a Pre-Closing Tax Period or that could give rise to an indemnification obligation under this Agreement, or (D) initiate discussion, voluntary disclosure or examination with any Taxing Authority regarding Taxes or Tax Returns with respect to any Blue Owl Company for any Pre-Closing Tax Period or that could give rise to an indemnification obligation under this Agreement.

 

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(c) Notwithstanding the deadlines set forth in Section 12.1(a) with respect to any Tax Return described therein, the Applicable Representative, the Other Representative, the Buyer, and the Blue Owl Companies, as applicable, shall reasonably cooperate to set later deadlines if it is reasonably necessary in order to allow sufficient time for preparation and review of such Tax Return prior to the due date of such Tax Return (including applicable extensions).

Section 12.2 Cooperation. Each Party shall reasonably cooperate (and cause its Affiliates to reasonably cooperate), as and to the extent reasonably requested by each other Party, in connection with the preparation and filing of Tax Returns required to be filed by the Sellers and Tax Returns pursuant to Section 12.1, including the Buyer signing and filing or causing to be signed and filed Sellers Prepared Returns that have been prepared in accordance with Section 12.1(a) on behalf of a Blue Owl Company, the preparation of the Allocation and the Tax Basis Balance Sheet, and any Tax Proceeding with respect to Taxes or Tax Returns of any Blue Owl Company. Such cooperation shall include the provision of records and information which are reasonably relevant to any such Tax Return, Tax Proceeding or other Tax-related matter and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided under this Agreement. Following the Closing, the Buyer, the Blue Owl Companies, and the other Parties (to the extent such Parties have any such books and records in their possession) shall retain all books and records with respect to Tax matters pertinent to the Blue Owl Companies relating to any taxable period beginning before the Closing Date until the seven-year anniversary of the Closing Date, and to abide by all record retention agreements entered into with any Taxing Authority. The Parties shall (and shall cause their respective Affiliates (other than the Blue Owl Companies after the Closing) to) provide any information reasonably requested to allow the Buyer or any Blue Owl Company to comply with any information reporting or withholding requirements contained in the Code or other applicable Laws or to compute the amount of payroll or other employment Taxes due with respect to any payment made in connection with this Agreement. Notwithstanding the foregoing, nothing shall require any member of the Nephrite Group or any member of the Opal Family to provide any other party any Tax Returns filed by or on behalf of any such member or any Seller or its Affiliates (other than the Blue Owl Companies).

Section 12.3 Tax Proceedings. Each Party shall promptly notify the other Parties in writing upon receipt by the applicable Party or its Affiliates of notice of any Tax Proceeding (x) that is with respect to Taxes or Tax Returns of any Blue Owl Company relating to any Pre-Closing Tax Period or (y) that is with respect to Taxes which are the subject of indemnification under this Agreement (each, an “Applicable Tax Proceeding”). Such notification shall specify in reasonable detail the basis for such Tax Proceeding and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority. In connection with any Tax Proceeding:

(a) The Applicable Representative shall have the right to control, at the cost and expense of the Blue Owl Companies, any Applicable Tax Proceeding in respect of any Blue Owl Company that is with respect to Income Tax matters for any taxable period that ends on or before the Closing Date; provided, however, that (A) the Buyer (at the cost and expense of the Blue Owl Companies) and the Other Representative (at its own expense) shall have the right to participate in any such Tax Proceeding, (B) the Applicable Representative shall use its commercially reasonable efforts to keep the Buyer and the Other Representative reasonably informed with respect to such Tax Proceeding, (C) the Applicable Representative shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of

 

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the Buyer and the Other Representative, which consent shall not be unreasonably withheld, conditioned or delayed, but only if such settlement, compromise, or abandonment would reasonably be expected to adversely affect the Tax Liability (including by increasing or affecting any Taxes that are the subject of indemnification pursuant to this Agreement) or Tax position of the Buyer or the Blue Owl Companies or the Other Representative (or the Sellers represented by such Other Representative), as applicable, and (D) the Applicable Representative shall conduct the control of such Tax Proceeding diligently and in good faith.

(b) The Buyer, at the cost and expense of the Blue Owl Companies, may control any Tax Proceeding that the Applicable Representative would otherwise have the right to control under Section 12.3(a) if the Applicable Representative elects in writing not to control such Tax Proceeding; provided, however, that if the Buyer exercises its right to control any such Tax Proceeding under this Section 12.3(b), the Applicable Representative and the Other Representative (in each case at their sole cost and expense) shall have the right to participate in any such Tax Proceeding and the Buyer shall (x) use its commercially reasonable efforts to keep the Applicable Representative and the Other Representative reasonably informed with respect to such Tax Proceeding, (y) not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Applicable Representative and the Other Representative, which consent shall not be unreasonably withheld, conditioned or delayed, but only if such settlement, compromise or abandonment would reasonably be expected to adversely affect the Tax Liability (including by increasing or affecting any Taxes that are the subject of indemnification pursuant to this Agreement) or Tax position of the Applicable Representative or the Other Representative (or the Sellers represented by either of them), as applicable, and (z) conduct the control of such Tax Proceeding diligently and in good faith.

(c) If any Party (the “Affected Party”) receives notice of any Applicable Tax Proceeding that is not described in Section 12.3(a), then: (A) such Affected Party (at its sole cost and expense) shall have the right to participate in (but not control) any such Tax Proceeding, (B) the Party (or its Affiliate) controlling such Tax Proceeding shall use its commercially reasonable efforts to keep the Affected Party reasonably informed with respect to such Tax Proceeding, (C) the Party (or its Affiliate) controlling such Tax Proceeding shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Affected Party, which consent shall not be unreasonably withheld, conditioned or delayed, but only to the extent such settlement, compromise, or abandonment would reasonably be expected to adversely affect the Tax Liability (including by increasing or affecting any Taxes that are the subject of indemnification pursuant to this Agreement) or Tax position of the Affected Party or its applicable Affiliates under this Agreement, and (D) the Party (or its Affiliate) controlling such Tax Proceeding shall conduct the control of such Tax Proceeding diligently and in good faith; provided that, each of the foregoing clauses (A) through (D) shall only apply to the extent such Tax Proceeding relates to (or could reasonably be expected to increase or otherwise affect) any Taxes subject to indemnification by the Affected Party pursuant to this Agreement.

Section 12.4 Transfer Taxes. Nephrite shall prepare and file in a timely manner, all necessary Tax Returns and other documentation with respect to, and shall pay or cause to be paid, all Transfer Taxes relating to respect to transfers of the Diamond Business or Diamond Transferred Companies under this Agreement, and Opal Partners shall prepare and file in a timely manner, all necessary Tax Returns and other documentation with respect to, and shall pay or cause to be paid,

 

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all Transfer Taxes relating to respect to transfers of the Opal Business or Opal Transferred Companies under this Agreement. If required by applicable Law, the other Parties will, and will cause their respective Affiliates to, reasonably cooperate and join in the execution of any such Tax Returns and other documentation. The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any Transfer Tax. Nephrite or Opal Partners, as applicable, shall provide the other Parties with evidence reasonably satisfactory to such other Party or Parties that such Transfer Taxes have been paid, or if the relevant transactions are exempt from Transfer Taxes, evidence of the filing of an appropriate certificate or other evidence of exemption.

Section 12.5 Intended Tax Treatment. The Parties acknowledge and agree that for U.S. federal (and, as applicable, state and local) income Tax purposes, they intend that:

(a) Pursuant to the Opal Group Merger, (A) under Section 2.3(a)(iv), the holders of Opal Group FIC Units shall be treated as selling such Opal Group FIC Units to Blue Owl GP in a taxable transaction governed by Code Section 741 in exchange for cash and the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement; (B) under Section 2.3(a)(v) and Section 2.3(a)(vi), with respect to holders of Opal Group Class A Units and Opal Group Sponsor B Units (other than Electing Opal Units), such holders shall be treated as selling such Opal Group Class A Units and Opal Group Sponsor B Units to Blue Owl GP in taxable transaction governed by Code Section 741 in exchange for cash, Buyer Class A Shares (or Buyer Class B Shares, as applicable), Buyer Class E Shares, and the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement; (C) under Section 2.3(b)(iv), with respect to holders of Opal Carry Units (other than Electing Opal Units), such holders shall be treated as selling such Opal Carry Units to Blue Owl GP in taxable transaction governed by Code Section 741 in exchange for cash, Buyer Class A Shares (or Buyer Class B Shares, as applicable) and the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement;

(b) Any Opal Group Blocker Merger pursuant to Section 2.3(c)(i) shall be treated as a taxable purchase by Blue Owl GP of the Equity Securities in the applicable Opal Group Blocker from the equityholder(s) of such Opal Group Blocker pursuant to Code Section 1001 in exchange for in exchange for Buyer Class A Shares, Buyer Class E Shares, and the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement;

(c) Under Section 2.3(c)(ii) and Section 2.3(c)(iii), with respect to the Electing Opal Units of holders of Opal Group Class A Units or Opal Group Sponsor B Units, such holders shall be treated as selling a portion of such Opal Group Class A Units or Opal Group Sponsor B Units, as applicable, to Blue Owl GP in taxable transaction governed by Code Section 741, to the extent of any cash consideration and the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement; and

(d) Pursuant to Section 2.6(a)(iii), each Diamond Seller shall be treated as selling partnership interests to Blue Owl GP in a taxable transaction governed by Code Section 741 in exchange for cash and the right to receive certain payments to be made by Blue Owl GP under the Tax Receivable Agreement (such treatment described in this Section 12.5, the “Intended Tax Treatment”).

 

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Section 12.6 Allocation. Within 180 days following the final determination of the Diamond Final Adjustment Amount and the Opal Final Adjustment Amount, the Buyer will prepare, and deliver (or cause to be prepared and delivered) to the Applicable Representative and the Other Representative, (i) an allocation statement allocating amounts treated as consideration for U.S. federal income Tax purposes among the assets of the Blue Owl Companies (the “Allocation&#