Exhibit 10.5


 


ASSIGNMENT AND ASSUMPTION AGREEMENT


 


This
Assignment and Assumption Agreement (this “Assignment and Assumption
Agreement”) is made and entered into as of September     ,
2008, by and between Nomura Holdings Inc. (on behalf of itself and the entities that are its Affiliates (as defined
in the BarCap TSA) listed in Schedule 2 to the Nomura Purchase Agreement, as
same may be amended or supplemented from time to time) (“Nomura”
and each a “Purchaser”), and Lehman Brothers Holdings Inc., a Delaware
corporation (“LBHI”).


 


WHEREAS,
LBHI is a party to that certain Transition Services Agreement dated as of September 22,
2008 (the “BarCap TSA”), by and between LBHI and Barclays Capital Inc.
(“BarCap”), pursuant to which, among other things, (i) BarCap agreed
to provide, or cause to be provided, to LBHI (and its Affiliates as defined in the BarCap TSA as of the
date thereof) (collectively, the “LBHI Entities”), certain services, use of
facilities and other assistance on a transitional basis and (ii) LBHI agreed
to provide, or cause to be provided, to BarCap (and its Affiliates as defined in the BarCap TSA as of the
date thereof) certain services, use of facilities and other assistance on a
transitional basis;


 


WHEREAS,
Nomura is a party to that certain International Asset Sale Agreement dated as
of September     , 2008 (the “Nomura Purchase
Agreement”), by and among the HK Insolvency Officers, the Singapore
Insolvency Officers, the Australian Insolvency Officers, the Sellers listed in
Schedule 1 thereto (the “Sellers”) and the Purchasers listed in Schedule 2
thereto (the “Purchasers”), whereby the Sellers agreed to sell all of the Sale
Assets and the Purchasers agreed to purchase all of the Sale Assets and make
offers of employment to the Transferred Employees (which assets and employees,
for the avoidance of doubt, do not include (i) the assets and employees of
the IMD Business, as such term is defined in the BarCap TSA, nor (ii) the
assets or employees of Lehman Brothers Holdings plc, Lehman Brothers Limited,
LB UK RE Holdings Limited or Lehman Brothers International (Europe); nor (iii) any
assets or employees of BarCap pursuant to the Asset Purchase Agreement, dated
as of September 16, 2008, between LBHI, Lehman Brothers Inc., LB 745 LLC
and BarCap (as amended and supplemented, and together with any other agreements
executed among such parties, the “BarCap Purchase Agreement”));


 


WHEREAS,
pursuant to Section 9.10(a)(i)(B) of the BarCap TSA, LBHI has the
right to assign the LBHI Entities’ 
rights and obligations under the BarCap TSA, in whole or in part, to
certain acquirers of the Retained LBHI Business (as such term is defined in the
BarCap TSA), which, the parties agree for the purposes of this Assignment and
Assumption Agreement, includes the Sale Assets and the Transferred Employees;


 


WHEREAS,
for purposes of this Assignment and Assumption Agreement, each party agrees
that the LBHI Entities shall be deemed to include the Sellers even if there is
ambiguity regarding the fact that such Sellers could be construed as no longer
being under the “control” of LBHI due to the appointment of liquidators or
provisional liquidators; and


 


WHEREAS,
the parties hereto desire to execute this Assignment and Assumption Agreement
to evidence (i) the assignment from LBHI to the Purchasers of all rights,
title and 


 


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interests under the BarCap TSA solely as such relate to the LBHI
Entities which are transferring assets to the Purchasers and which employed the
Transferred Employees prior to the date of the Nomura Purchase Agreement (the
“Assigned Rights”, provided that, for the avoidance of doubt, the rights
with respect to assets and liabilities that have not been transferred under the
Nomura Purchase Agreement shall not be deemed part of the Assigned Rights), and
(ii) the Purchasers’ assumption of the obligations under the BarCap TSA
solely as such relate to the LBHI Entities which are transferring assets to the
Purchasers and which employed the Transferred Employees prior to the date of
the Nomura Purchase Agreement (the “Assumed Obligations”).


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:


 


1.             Capitalized
Terms.  Except as otherwise provided
herein, all capitalized terms used and not defined herein (including the
recitals hereto) shall have the respective meanings assigned to such terms in
the Nomura Purchase Agreement.


 


2.             Commencement.  This Assignment and Assumption Agreement
shall be conditional upon execution of the Nomura Purchase Agreement, and shall
come into effect with respect to the Assumed Obligations and Assigned Rights in
relation to a particular LBHI Entity upon completion of the sale of the
transferred assets or transfer of employees of such LBHI Entity under the
Nomura Purchase Agreement; provided that the assignments hereunder shall
constitute one single assignment for the purposes of Section 9.10(b) of
the BarCap TSA, but that to the extent that an assignment for a particular LBHI
Entity (x) takes place after 15 October 2008 or, if such assignment
is deferred past such date due to pending regulatory or legal approvals, after
10 November 2008, or (y) involve businesses outside of Asia,
Australia or the investment banking business in India, then such assignment
shall count as a separate assignment for the purposes of Section 9.10(b) of
the BarCap TSA.  For the avoidance of doubt, the
LBHI Entities will require any assignee or purchaser of the non-investment
banking businesses in India (including the service business, or the assets or
employees thereof) to assume the obligation to continue to provide Services to
the Recipient(s) (as such terms are defined in the BarCap TSA)
pursuant to the terms and conditions of the BarCap TSA as a condition to
such assignment or purchase.  LBHI
further agrees to assign its rights under the Barcap TSA with respect
to Services to such businesses to such assignee or
purchaser, subject to and in accordance with the terms and conditions
of the BarCap TSA, as a condition to such assignment or purchase.


 


3.             Additional
Purchasers.  The parties acknowledge
that Nomura may, on or before Completion, nominate additional Purchasers under
the Nomura Purchase Agreement that are Affiliates.  Nomura shall procure that each additional
Purchaser executes an assignment and assumption agreement in substantially the
same form as this Assignment and Assumption Agreement.  All Purchasers under the Nomura Purchase
Agreement and their Affiliates shall together count as a single assignee for
the purposes of this Assignment and Assumption Agreement and Section 9.10(b) of
the BarCap TSA.


 


4.             Assignment.  In accordance with and subject to the terms
of the Nomura Purchase Agreement and the BarCap TSA, LBHI hereby conveys,
transfers, assigns and delivers to the 


 


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Purchasers and their Affiliates (together counting as a single assignment
for the purposes of section 9.10(b) of the BarCap TSA), all of the
Assigned Rights.


 


5.             Acceptance and
Assumption.  In accordance with and
subject to the terms of the Nomura Purchase Agreement and the BarCap TSA, the
Purchasers hereby (i) accept the conveyance, transfer, assignment and
delivery of the Assigned Rights, and (ii) expressly succeed to, are
substituted for, and accept, assume and undertake to pay, perform and discharge
all of the Assumed Obligations and each hereby covenants to BarCap their
observance and performance of the same.


 


6.             Acknowledgement.  Each party hereto acknowledges the assignment
by LBHI of its rights and obligations under the BarCap TSA on the terms and
conditions of this Assignment and Assumption Agreement.


 


7.             No Third Party
Beneficiaries.  Nothing in this
Assignment and Assumption Agreement, express or implied, is intended or shall
be construed to confer upon, or give to, any person other than the Purchasers,
the LBHI Entities, and BarCap and their respective and permitted successors and
assigns, any remedy or claim under or by reason of this Assignment and
Assumption Agreement on any terms, covenants or condition hereof, and all the
terms, covenants and conditions, promises and agreements in this Assignment and
Assumption Agreement shall be for the sole and exclusive benefit of the parties
hereto and their successors and assigns.


 


8.             No Modification or
Amendment.  This Assignment and
Assumption Agreement does not amend or otherwise modify or limit any of the
provisions of the Nomura Purchase Agreement or the BarCap TSA (except to the
extent of the clarifications of the counting of the number of assignments in
section 2 of this Assignment and Assumption Agreement for the purposes of Section 9.10(b) of
the BarCap TSA) or the BarCap Purchase Agreement, and (a) in the event of
any conflict between the terms of the Nomura Purchase Agreement, and the terms
hereof, the Nomura Purchase Agreement shall supersede and control this
Assignment and Assumption Agreement in all respects as between the LBHI
Entities and Nomura and (b) in the event of any conflict between the terms
of the BarCap TSA and the BarCap Purchase Agreement, on one hand, and the terms
hereof, on the other hand, the BarCap TSA and BarCap Purchase Agreement shall
supersede and control this Assignment and Assumption Agreement in all respects.


 


9.             Other
Confirmations.


 


(a)           LBHI and
Nomura shall jointly cooperate with BarCap, using good faith and reasonable
efforts, as may be reasonably requested for BarCap to provide or receive
Services to or from either party, including where BarCap needs reasonable
guidance on the scope of the Sale Assets and Transferred Employees as
distinguished from those Retained LBHI Businesses that are not being acquired
by the Purchasers, and including where there are interdependencies among LBHI
and the Purchasers as relate to the provision or receipt of Services.


 


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(b)           Except
as BarCap may otherwise agree, not to be unreasonably withheld, Nomura
agrees to designate a single co-ordinator with overall
responsibilities for the co-ordination of its service management and separation
activities across the Asian jurisdictions including the investment banking
business in India with a view to achieving an efficient and orderly business
separation and to act as a central point of liaison for BarCap in relation to
the performance of its obligations hereunder.


 


10.           Miscellaneous.


 


(a)           Headings.  The section headings used herein are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Assignment and Assumption Agreement.


 


(b)           Governing
Law & Jurisdiction.  This
Assignment and Assumption Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflict of laws, and subject to Section 9.11 in the BarCap TSA with
respect to jurisdiction.


 


(c)           Counterparts.  This Assignment and Assumption Agreement may
be executed in two or more counterparts, each of which shall be deemed an
original but all of which together will constitute one and the same instrument.


 


(d)           Amendments.  No amendment or modification of this
Assignment and Assumption Agreement shall be effective unless it is set forth
in writing and signed by each of the parties hereto.


 


(e)           Notices.  Any notice, request or instruction to be
given under or in connection with this Deed shall be in writing and shall be
sent by mail, courier or telefax (in the case of telefax, a copy also to be
sent by mail) to the addresses as follows:


 


	
  if to LBHI or to

  BarCap:

  	
  As set out in section 9.05 (Notices) of the

  BarCap TSA.

  
	
   

  	
   

  
	
  if to Nomura:

  	
  Nomura Holdings Inc.

  c/o Nomura International plc

  Nomura House

  1 St Martin’s-le-Grand

  London EC1A 4NP

  Fax: (44 20) 7521 2121

  
	
   

  	
   

  
	
   

  	
  Attention: General Counsel and Company

  Secretary

  



 


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  with a copy to

  	
  [ ]

  



 


Each
party may at any time change its address by giving notice to the other parties,
as the case may be, in the manner described in section 9.05 of the BarCap TSA.


 


(f)            Successors and
Assigns.  This Assignment and
Assumption Agreement is executed by, and shall be binding upon, the parties
hereto and their respective successors and assigns for the uses and purposes
above set forth and referred to, as of the date hereof, provided that the
foregoing shall not be interpreted to contravene any limitations on assignment
pursuant to the BarCap TSA.


 


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REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]


 


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IN
WITNESS WHEREOF, the parties have caused this Assignment and Assumption
Agreement to be duly executed and delivered as of the date first written above.


 


 


	
   

  	
  LEHMAN BROTHERS HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James P. Fogarty

  
	
   

  	
   

  	
  Name: James P. Fogarty

  
	
   

  	
   

  	
  Title: Executive Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NOMURA HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Takumi Shibata

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted and Agreed:

  	
   

  
	
   

  	
   

  
	
  BARCLAYS CAPITAL INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Gerard S. LaRocca

  	
   

  
	
   

  	
  Name: Gerard S. LaRocca

  	
   

  
	
   

  	
  Title: CEO

  	
   

  



 


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