Exhibit 10.1


 




 





 


 


ASSET PURCHASE
AGREEMENT


 


 


between


 


 


DEERFIELD CAPITAL
MANAGEMENT LLC


 


 


and


 


 


LUKE D. KNECHT


 


 


 






 


Dated as of September 30,
2010


 






 




 


 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II
  TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES

  	
  4

  
	
  Section 2.1

  	
  Purchase and Sale of Assets

  	
  4

  
	
  Section 2.2

  	
  Excluded Assets

  	
  4

  
	
  Section 2.3

  	
  Assignment and Assumption of Certain Liabilities and
  Expenses

  	
  4

  
	
  Section 2.4

  	
  Limited Warranty; Nonrecourse; Conveyance; Release

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  REPRESENTATIONS AND WARRANTIES OF SELLER

  	
  5

  
	
  Section 3.1

  	
  Organization and Powers

  	
  5

  
	
  Section 3.2

  	
  Corporate Authority

  	
  5

  
	
  Section 3.3

  	
  No Conflicts

  	
  6

  
	
  Section 3.4

  	
  Absence of Certain Liens and Litigation

  	
  6

  
	
  Section 3.5

  	
  Disclaimer of other Representations and Warranties

  	
  6

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  REPRESENTATIONS AND WARRANTIES OF PURCHASER

  	
  6

  
	
  Section 4.1

  	
  No Conflicts

  	
  6

  
	
  Section 4.2

  	
  Consents and Approvals

  	
  7

  
	
  Section 4.3

  	
  Absence of Certain Liabilities and Litigation

  	
  7

  
	
  Section 4.4

  	
  No Other Representations and Warranties; Estimates,
  Projections and Other Predictions

  	
  7

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  COVENANTS OF THE PARTIES

  	
  7

  
	
  Section 5.1

  	
  Cooperation

  	
  7

  
	
  Section 5.2

  	
  Use of Names, Trademarks, Service Marks and
  Technology Systems

  	
  8

  
	
  Section 5.3

  	
  Limitations

  	
  8

  
	
  Section 5.4

  	
  Bulk Sales Laws

  	
  9

  
	
  Section 5.5

  	
  Transition Assistance

  	
  10

  
	
  Section 5.6

  	
  Certain Tax Matters

  	
  10

  
	
  Section 5.7

  	
  Possession

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  OBLIGATIONS OF PARTIES ON THE CLOSING DATE

  	
  10

  
	
  Section 6.1

  	
  Closing Date and Place

  	
  10

  
	
  Section 6.2

  	
  Obligations of Purchaser on the Closing Date

  	
  10

  
	
  Section 6.3

  	
  Obligations of Seller on the Closing Date

  	
  11

  
	
  Section 6.4

  	
  Additional Payments

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  CONDITIONS TO PURCHASER’S OBLIGATION TO CONSUMMATE THE TRANSACTION

  	
  12

  
	
  Section 7.1

  	
  Representations and Warranties

  	
  12

  
	
  Section 7.2

  	
  Compliance with Covenants

  	
  12

  



 


i

















 


TABLE
OF CONTENTS

(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  CONDITIONS TO SELLER’S OBLIGATION TO CONSUMMATE THE TRANSACTION

  	
  12

  
	
  Section 8.1

  	
  Representations and Warranties

  	
  12

  
	
  Section 8.2

  	
  Compliance with Covenants

  	
  12

  
	
  Section 8.3

  	
  Termination Agreement

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  INDEMNIFICATION 

  	
  13

  
	
  Section 9.1

  	
  Survival

  	
  13

  
	
  Section 9.2

  	
  Indemnification by Purchaser

  	
  13

  
	
  Section 9.3

  	
  Limitations on Indemnification; Exclusive Remedy

  	
  13

  
	
   

  	
   

  	
   

  
	
  ARTICLE X
  TERMINATION

  	
  14

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI
  GENERAL PROVISIONS

  	
  14

  
	
  Section 11.1

  	
  Entire Agreement; Modification; Waiver

  	
  14

  
	
  Section 11.2

  	
  Counterparts; Effectiveness; Third Party
  Beneficiaries

  	
  14

  
	
  Section 11.3

  	
  Interpretation

  	
  14

  
	
  Section 11.4

  	
  Payment of Expenses

  	
  15

  
	
  Section 11.5

  	
  Governing Law; Waiver of Jury Trial; Consent to
  Jurisdiction

  	
  15

  
	
  Section 11.6

  	
  Addresses of Notice

  	
  16

  
	
  Section 11.7

  	
  Intentionally Omitted

  	
  16

  
	
  Section 11.8

  	
  Severability

  	
  16

  
	
  Section 11.9

  	
  Specific Performance

  	
  17

  
	
  Section 11.10

  	
  Rules of Construction

  	
  17

  
	
  Section 11.11

  	
  Employees and Agents of Seller

  	
  17

  
	
  Section 11.12

  	
  Remittances

  	
  17

  



 


ii

















 


ANNEXES AND EXHIBITS


 


	
  ANNEX A:

  	
   

  	
  CERTAIN ASSETS AND THE ELIGIBLE EMPLOYEES

  
	
   

  	
   

  	
   

  
	
  ANNEX B:

  	
   

  	
  BILL OF SALE

  



 
















 


ASSET PURCHASE AGREEMENT, dated as of September 30,
2010, by and between Deerfield Capital Management LLC, a Delaware limited
liability company (“Seller”), and Luke D. Knecht
(“Purchaser”).


 


W I T N E S S E T H:


 


WHEREAS, Seller owns a license to use certain
proprietary software and related materials for managing the duration of
investment portfolios and other assets (collectively, “Return
Profile Management” or “RPM”);


 


WHEREAS, upon the terms and subject to the
conditions of this Agreement, Seller wishes to sell, convey, assign, transfer
and deliver to Purchaser, and Purchaser desires to acquire from the Seller, the
Acquired Assets, subject to certain liabilities;


 


WHEREAS, prior to or concurrently with the execution
and delivery of this Agreement, and as a condition to the willingness of Seller
to enter into this Agreement, Luke D. Knecht is entering into a termination
agreement with Seller pursuant to which, among other things and subject to
certain conditions, he has agreed to resign from his positions with Seller and
its Affiliates effective as of the Closing (the “Termination
Agreement”).


 


NOW, THEREFORE, in consideration of the foregoing
recitals and the following terms, covenants, and conditions, the parties agree
as follows:


 


ARTICLE I 

DEFINITIONS


 


“Acquired Assets”
means the Equipment, the Software and the Track Record, and all of Seller’s
right, title and interest in RPM, including relevant databases and
spreadsheets.


 


“Affiliate”
means, with respect to any Person, any other Person that directly or indirectly
controls, is controlled by or is under common control with, such first
Person.  For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling,”
“controlled by” and “under common control with”), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person, whether through
the ownership of voting securities, by contract or otherwise.


 


“Agreement”
means this Agreement as the same may be amended, supplemented or modified from
time to time in accordance with the terms hereof.


 


“Assumed Liabilities”
has the meaning ascribed to it in Section 2.3.


 


“Bill of Sale”  means the bill of sale in substantially the form and
substance attached hereto as Annex B.


 


1

















 


“Business Day”
means any day other than Saturday, Sunday or a day on which commercial banks in
New York, New York are authorized or required by Law to close.


 


“Closing”
has the meaning ascribed to it in Section 6.1(a).


 


“Closing Date”
has the meaning ascribed to it in Section 6.1(a).


 


“Code” means
the Internal Revenue Code of 1986, as amended (including any successor code),
and the rules and regulations promulgated thereunder.


 


“Eligible Employees”
has the meaning ascribed to it in Section 11.11.


 


“Equipment”
means the computer hardware, equipment and peripherals, including desktop and
laptop personal computers, listed on Annex A attached hereto.


 


“Excluded Assets”
has the meaning ascribed to it in Section 2.2.


 


“Governmental Entity”
means any (i) region, state, county, municipality, city, town, village,
district or other jurisdiction, (ii) foreign, federal, state, provincial,
local, municipal or other government, (iii) governmental or
quasi-governmental authority of any nature (including any governmental agency,
branch, department, self-regulatory organization (including any securities
exchange) or other entity and any court or other tribunal), (iv) body
exercising, or entitled to exercise, any administrative, executive, judicial,
legislative, policy, regulatory or taxing authority or power of any nature or (v) official
of any of the foregoing.


 


“Initial Payment”
means $150,000.


 


“Judgment”
means any judgment, ruling, order, arbitral award or decree of any Governmental
Entity.


 


“Knowledge” or “Know” and similar
terms means (a) with respect to a natural person, the actual knowledge of
such person as of the date of this Agreement, and (b) with respect to a
person that is not a natural person, the actual knowledge, after reasonable
inquiry, of any director, manager or executive officer of any such non-natural
person as of the date of this Agreement.


 


“Law” means
any writ, injunction, Judgment, law, decision, opinion, statute, rule or
regulation of any governmental, judicial, legislative, executive,
administrative or regulatory authority of the United States, or of any state or
local government or any subdivision thereof, or of any Governmental Entity.


 


“Liabilities”
means all liabilities or obligations of any kind or nature, whether known or
unknown, whether absolute, accrued, contingent, choate, inchoate or otherwise,
whether due or to become due, and whether or not required to be reflected on a
balance sheet prepared in accordance with United States generally accepted
accounting principles, as in effect from time to time.


 


2

















 


“Lien” means
any mortgage, deed of trust, lien, security interest, pledge, lease,
conditional sale contract, claim, charge, easement, right of way, assessment,
restriction and other encumbrance or claim of every kind.


 


“New Firm”
has the meaning ascribed to it in Section 5.3(a).


 


“Person”
means any natural person, corporation, general partnership, limited
partnership, limited liability company, proprietorship, other business
organization, trust, union, association or Government Entity.


 


“Purchaser”
has the meaning ascribed to it in the preamble.


 


“Representative”
means, with respect to a particular Person, any director, officer, manager,
employee, agent, consultant, advisor, legal counsel, accountant or other
representative of that Person.


 


“Restricted Period”
has the meaning ascribed to it in Section 5.3(a).


 


“Seller” has
the meaning ascribed to it in the preamble.


 


“Seller’s Clients”
has the meaning ascribed to it in Section 5.3(b).


 


“Software”
means the perpetual, non-exclusive license to use certain software described in
that certain ANALYSIS GROUP, INC./THEORETICS, INC. AGREEMENT RCM
SYSTEM (Agreement No. 91202969) dated as of December 31, 1996, along
with the data files associated with the Software, as such was assigned to
Seller by Dresdner RCM Global Investors LLC (“DRCM”)
pursuant to that certain assignment agreement dated as of May 24, 2002.


 


“Tax Return”
means any report, return or other information required to be supplied to a
taxing authority in connection with Taxes.


 


“Taxes”
means all taxes, charges, fees, levies or other like assessments, including
income, gross receipts, excise, real and personal and intangible property,
sales, use, transfer (including transfer gains taxes), withholding, license,
payroll, recording, ad valorem and franchise taxes imposed by any Governmental
Entity and such term shall include any interest, penalties or additions to tax
attributable to such assessments.


 


“Termination Agreement”
has the meaning ascribed to it in the recitals.


 


“Third Party Consents”
means all consents (or in lieu thereof waivers) from a third party to the
performance by the applicable Person of its obligations under this Agreement
and the other Transaction Documents or to the consummation or performance of
the transactions contemplated hereby and thereby as are required under any
Contract to which such Person is a party or any agreement by which any of the
Acquired Assets are bound or which constitute any of the Acquired Assets.


 


3

















 


“Track Record”
means documentation to support the historic performance records of all
portfolios managed by Seller with the use of RPM and related marketing
materials and client correspondence and any documentation previously acquired
by the Seller from DRCM relating to the operation of RPM.


 


“Transaction Documents”
has the meaning ascribed to it in Section 3.2.


 


ARTICLE II 

TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES


 


Section 2.1            Purchase and Sale of Assets.  Upon the terms and subject to the conditions
of this Agreement, Purchaser agrees to purchase from Seller, and Seller agrees
to sell, convey, transfer, assign and deliver, or cause to be sold, conveyed,
transferred, assigned and delivered, to Purchaser at the Closing, all of Seller’s
right, title and interest in, to and under the Acquired Assets.   For the avoidance of doubt, the parties
hereto agree that all accrued fees payable by RPM clients for the third quarter
of 2010 shall be payable to the Seller.


 


Section 2.2            Excluded Assets.  Purchaser expressly understands and agrees
that Purchaser is not acquiring from Seller, and Seller shall retain ownership
of all right, title and interest in and to, any property or asset other than
any right, title or interest in or to the Acquired Assets, including any
interest in or right to use any logo, name, trademark or service mark presently
or previously used by Seller or any of its Affiliates (including the name “Deerfield”
and any related trademarks or service marks) (collectively, the “Excluded Assets”).  Purchaser further expressly understands and
agrees that Seller retains the right to maintain copies of the Track Record and
disclose the Track Record as necessary for legal, regulatory or accounting
purposes.


 


Section 2.3            Assignment and Assumption of
Certain Liabilities and Expenses. 
Subject to the terms and conditions set forth in this Agreement, on the
Closing Date, Seller shall assign to Purchaser, and Purchaser shall
(i) accept and assume from Seller and (ii) thereafter pay, perform
and discharge in a timely manner when due all obligations with respect to and
be liable for any and all Liabilities of Seller arising out of or in connection
with the development, use or ownership of the Acquired Assets that were
incurred or result from actions taken from and after the Closing Date, and any
and all Liabilities expressly provided in this Agreement that are required to
be borne by Purchaser, including Purchaser’s indemnification obligations under Section 9.3
(collectively, the “Assumed
Liabilities”).


 


Section 2.4            Limited Warranty; Nonrecourse;
Conveyance; Release.


 


(a)           THE CONVEYANCE OF ALL ACQUIRED ASSETS PURCHASED BY
PURCHASER UNDER THIS AGREEMENT AND UNDER ANY CONVEYANCE DOCUMENT EXECUTED IN
CONNECTION HEREWITH SHALL BE MADE, AS NECESSARY, BY SELLER’S ASSIGNMENT OR BILL
OF SALE, IN “AS IS” AND “WHERE IS” CONDITION, AND WITHOUT ANY


 


4

















 


REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH
RESPECT TO SUCH ACQUIRED ASSETS, EXPRESS OR IMPLIED, WITH RESPECT TO
MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, ENVIRONMENTAL CONDITION,
ENFORCEABILITY, COLLECTIBILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR
ENCUMBRANCES (IN WHOLE OR IN PART), CONDITION OF PROPERTY OR ANY OTHER MATTER,
AND PURCHASER SHALL NOT BE ENTITLED TO RELY ON ANY REPRESENTATION OR WARRANTY
WHATSOEVER EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE III OF THIS AGREEMENT.


 


(b)           Purchaser shall execute and deliver to Seller, and Seller
shall execute and deliver to Purchaser such further instruments and documents
of conveyance (in form and substance reasonably satisfactory to Seller and
Purchaser) as shall be reasonably necessary to vest in Purchaser the full legal
and equitable title of Seller in and to the Acquired Assets, free and clear of
all Liens.


 


(c)           On and after the Closing Date, Purchaser shall execute,
acknowledge and deliver to Seller all such acknowledgements and other instruments
as Seller shall reasonably request (in form and substance reasonably
satisfactory to Purchaser and Seller) to effectively relieve and discharge
Seller when due from any of the Assumed Liabilities.


 


ARTICLE III 

REPRESENTATIONS AND WARRANTIES OF SELLER


 


Seller represents and warrants to Purchaser as
follows:


 


Section 3.1            Organization and Powers.  Seller is a limited liability company, duly
organized and validly existing under the laws of Delaware.  Seller has the requisite limited liability
company power and authority to own or lease and operate the Acquired Assets.


 


Section 3.2            Corporate Authority.  Seller has the requisite limited liability
company power and authority to execute and deliver this Agreement, the
Termination Agreement and any other documents, agreements or instruments
expressly contemplated by this Agreement (collectively, the “Transaction Documents”) to
which Seller is a party and to consummate the transactions contemplated hereby
and thereby.  The execution and delivery
of this Agreement and the other Transaction Documents to which Seller is a
party and the consummation of the transactions contemplated hereby and thereby,
have been duly authorized by all necessary limited liability company action on
the part of Seller and no further limited liability company action on the part
of Seller is necessary to approve this Agreement or any of the other
Transaction Documents to which it is a party or to consummate the transactions
contemplated hereby and thereby.  This
Agreement has been, and as of the Closing Date, each of the other Transaction
Documents to which Seller is a party will have been, duly executed and
delivered by Seller and, assuming the due authorization, execution and delivery
of this Agreement by


 


5

















 


Purchaser and each of the
other Transaction Documents to which it is a party by Purchaser, this Agreement
constitutes, and as of the Closing Date each of the other Transaction Documents
to which Seller is a party will constitute, the legal, valid and binding
obligations of Seller enforceable against Seller in accordance with their
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).


 


Section 3.3            No Conflicts.  Neither the execution or delivery by Seller
of this Agreement or any other Transaction Document to which Seller is a party
nor the performance of the transactions contemplated hereby or thereby to be
performed by either of them shall (a) violate the certificate of formation
or limited liability company agreement of either of them, (b) violate any
applicable Law or (c) require any consent or other action by any Person,
including without limitation any Third Party Consent, under, constitute a
default under or give rise to any right of termination, cancellation or
acceleration of any right or obligation or to a loss of any benefit to which
either of them is entitled under any provision of any agreement or other
instrument binding upon Seller, except in the case of clauses (b) and (c) as
to matters which would not reasonably be expected to have a material adverse
effect on the ability of Seller to perform its obligations hereunder or under
any of the other Transaction Documents to which it is a party.


 


Section 3.4            Absence of Certain Liens and
Litigation.  Seller and its
controlled Affiliates have not created a Lien on, sold, licensed or otherwise
conveyed any of its rights, title or interest in or to any of the Acquired
Assets.  To the Knowledge of Seller,
there are no Liens on the Acquired Assets and there is no Litigation that is
pending or threatened involving or related to the Acquired Assets.


 


Section 3.5            Disclaimer of other
Representations and Warranties. 
Except as expressly set forth in this Article III, neither Seller
nor any of its Affiliates makes any representation or warranty, express or
implied, relating to the Acquired Assets or any other matter, including any
representation or warranty as to merchantability, habitability, profitability,
future performance, fitness for a particular purpose or non-infringement.  All of such additional representations and
warranties are hereby disclaimed.


 


ARTICLE IV 

REPRESENTATIONS AND WARRANTIES OF PURCHASER


 


Purchaser hereby represents and warrants to Seller
as follows:


 


Section 4.1            No Conflicts.  Neither the execution or delivery by
Purchaser of this Agreement or any other Transaction Document to which
Purchaser is a party nor the performance of the transactions contemplated
hereby or thereby to be performed by it shall (a) violate any Law applicable
to Purchaser or (b) require any


 


6

















 


consent or other action by
any Person under, constitute a default under or give rise to any right of
termination, cancellation or acceleration of any right or obligation or to a
loss of any benefit to which Purchaser is entitled under any provision of any
agreement or other instrument binding upon Purchaser, except as to matters
which would not reasonably be expected to have a material adverse effect on the
ability of Purchaser to perform its obligations hereunder or under any of the
other Transaction Documents; provided, that, for greater clarity,
nothing in this Section 4.1 shall be deemed to constitute a representation
or warranty as to whether a Third Party Consent is required under any of the
Acquired Assets for Purchaser to accept the sale, conveyance, transfer,
assignment or delivery of all of Seller’s right, title and interest therein.


 


Section 4.2            Consents and Approvals.  Purchaser is not required to obtain any
approval or any Third Party Consents in connection with (a) Purchaser’s
execution and delivery of this Agreement or any Transaction Document to which
it is a party or (b) the consummation by Purchaser of the transactions
contemplated hereby or thereby.


 


Section 4.3            Absence of Certain Liabilities
and Litigation.  To the Knowledge of
Purchaser, there are no Liabilities of Seller or any of its Affiliates created
with the authorization or at the direction of Purchaser arising out of or in
connection with the development, use or ownership of the Acquired Assets and
there is no Litigation that is pending or threatened involving or related to,
directly or indirectly, the Acquired Assets.


 


Section 4.4            No Other Representations and
Warranties; Estimates, Projections and Other Predictions.Purchaser is an
informed and sophisticated purchaser, experienced in the evaluation and
purchase of property and assets such as the Acquired Assets as contemplated
hereunder.  Purchaser 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 and the other Transaction Documents to which it is a party.  Purchaser acknowledges that Seller has given
Purchaser complete and open access to the Acquired Assets and the key employees
and books and records related thereto. 
Purchaser will undertake prior to Closing such further investigation and
request such additional documents and information as it deems necessary.  Purchaser understands that any cost
estimates, projections or other predictions which have been provided to it are
not and shall not be deemed to be representations or warranties of Seller.  Purchaser acknowledges that there are
uncertainties inherent in attempting to make such estimates, projections and
other predictions, that Purchaser is familiar with such uncertainties, that
Purchaser is taking full responsibility for making its own evaluation of the
adequacy and accuracy of all estimates, projections and other predictions so
furnished to it, and that Purchaser shall have no claim against anyone with
respect thereto.


 


ARTICLE V

COVENANTS OF THE PARTIES


 


Section 5.1            Cooperation.  Subject to the terms and conditions of this
Agreement, and unless another standard of efforts is expressly set forth in
this Agreement, Seller and Purchaser shall cooperate with each other and use
their respective commercially reasonable efforts to consummate the transactions


 


7

















 


contemplated by this Agreement, and each shall take
all commercially reasonable actions necessary to accomplish such transactions.


 


Section 5.2            Use of Names, Trademarks, Service
Marks and Technology Systems.


 


(a)           Subject to Section 5.2(c), no interest in or right to
use any logo, name, trademark or service mark presently or previously used by
Seller or any of its Affiliates (including the name “Deerfield” and any related
trademarks or service marks) is being conveyed pursuant to this Agreement.


 


(b)           Subject to Section 5.2(c), Purchaser agrees that
after the Closing Date neither it nor any of its Affiliates shall use or
authorize others to use the name “Deerfield” or any related trademarks or
service marks or any similar name, trademark or service mark indicating
affiliation after the Closing with Seller or any of its Affiliates, in
connection with any business activity engaged in by Purchaser or any of its
Affiliates.


 


(c)           As promptly as practicable following the Closing Date and
except as otherwise agreed by Seller in writing, Purchaser shall (i) commence
the removal of Seller’s trade names, names (including any reference to “Deerfield”
or any similar name indicating affiliation after Closing with Seller or any of
its Affiliates), trademarks or service marks, logos, insignia, slogans,
emblems, symbols, designs, and other identifying characteristics (“Names”) from the Acquired
Assets, and from all printed materials and related business literature and (ii) not
make reference to “Deerfield” or Seller or any of its Affiliates in its
marketing, solicitation or client materials other than to factually reference (A) Purchaser’s
period of employment at Seller, (B) the period during which RPM was operated
by Seller, (C) Seller’s continuing interest in the revenue related to RPM
and (D) the terms of this Agreement which have been publicly disclosed.


 


(d)           Except as specifically provided in this Agreement, neither
Seller nor any of its Affiliates shall have any obligation to provide any
services (transition or otherwise) to Purchaser in respect of the Acquired
Assets or any other matter.  For a period
of three months following the Closing Date, upon reasonable advance notice from
Purchaser, Seller will use commercially reasonable efforts to provide
Purchaser, at Purchaser’s sole cost and expense and during normal business
hours, with reasonable consulting services related to matters concerning the
manner in which the Software functioned within Seller’s information technology
systems (it being acknowledged that Seller shall not have any obligation to
provide such consulting services to the extent doing so would unreasonably
interfere with the business or operations of Seller or to make available any
particular employee of Seller to provide such consulting services).


 


Section 5.3            Limitations.


 


(a)           Purchaser will have the right to affiliate with any other
investment management firm (a “New Firm”)
for the purpose of continuing to offer RPM


 


8

















 


to existing RPM clients of Seller and other
prospective clients; provided that an affiliation with any New Firm during the
one year period following Closing Date (the “Restricted
Period”) shall be require the Seller’s prior written consent,
not to be unreasonably withheld.


 


(b)           Purchaser will not solicit any client of the Seller (“Seller’s Clients”) for any product
other than RPM without the Seller’s prior written consent during the Restricted
Period.  Purchaser and Seller shall agree
in writing upon a list of Seller’s Clients prior to Closing.  During the Restricted Period, any New Firm
shall be prohibited from soliciting the Seller’s Clients for investments in
high yield bonds and bank loans, residential mortgage backed securities and
asset backed securities and structured products secured by any of the preceding
classes of assets unless the New Firm had a pre-existing relationship with such
Seller’s Client.


 


(c)           Purchaser will not sell, convey, transfer, assign or
deliver or cause to be sold, conveyed, transferred, assigned or delivered any
of Purchaser’s right, title or interest in, to and under the Acquired Assets,
or any of the economics related thereto, to another Person without securing
such Person’s written agreement, in form and substance reasonably acceptable to
the Seller, to abide by the terms and provisions of the Transaction Documents,
including, without limitation, the obligations under this Article V and Section 6.4
of this Agreement.


 


(d)           Seller will not acquire, build or offer an investment
product with a strategy substantially similar to that of RPM (i.e., duration
management in the U.S. Treasury bond market or similar markets for government
debt issued by G-7 countries) nor solicit existing RPM clients for such a
product during the Restricted Period; provided, however, that Seller shall be
permitted to solicit existing RPM clients for investments in other investment
products offered by Seller as of the Closing Date .  After the Restricted Period, nothing in any Transaction
Document shall be construed to prohibit or otherwise limit or restrict the
ability of Seller or its Affiliates to engage or participate in (including as
an owner, partner, member, shareholder, investor, financing source, manager,
adviser, agent or otherwise), or render services for, any Person or entity
engaged in any asset management of related business.


 


(e)           During the three months following the Closing Date,
Purchaser shall use reasonable efforts to cooperate in Seller’s efforts to
introduce other investment products managed or to be managed by Seller to
existing RPM clients, including by making introductions of senior personnel of
the Seller, provided that such investment products do not compete with products
managed by any New Firm.


 


(f)            During the twenty-four months following the Closing Date,
Seller shall use reasonable efforts to promptly refer any inquiries regarding
the RPM product to the Purchaser.


 


Section 5.4            Bulk Sales Laws.  Each of the parties hereby waives compliance
with all applicable provisions of the “bulk sales” or similar laws of any
jurisdiction and all bulk sales tax provisions in all states.


 


9

















 


Section 5.5            Transition Assistance.  Seller shall, and shall cause its Affiliates
to, cooperate reasonably with Purchaser and otherwise take such actions as may
be reasonably requested by Purchaser in connection with the transfer of the
Track Record to the Purchaser during the sixty days following the Closing Date.


 


Section 5.6            Certain Tax Matters.


 


Seller and Purchaser shall provide each other with
such assistance as reasonably may be requested by either of them in connection
with (i) the preparation of any Tax Return related to, or with respect to,
the Acquired Assets, or (ii) any audit or other examination by any taxing
authority, or any judicial or administrative proceedings relating to liability
for Taxes arising from, or with regard to, the Acquired Assets.  The party requesting assistance hereunder
shall reimburse the other party for reasonable out-of-pocket expenses incurred
in providing such assistance, provided, however, that, for
purposes of receiving reimbursement, no independent contractors, such as
accountants or attorneys, shall be consulted without the written consent of the
party requesting assistance, which consent shall not be unreasonably withheld.


 


Section 5.7            Possession.  Purchaser shall be permitted to take
possession of, and use and otherwise enjoy all of Seller’s rights, title and
interest in all of the Acquired Assets immediately following the Closing.  Immediately following the Closing, Seller
shall take, and shall cause its Affiliates to take, such steps as may be
required to put Purchaser in actual possession and operating control of the
Acquired Assets.


 


ARTICLE VI 

OBLIGATIONS OF PARTIES ON THE CLOSING DATE


 


Section 6.1            Closing Date and Place.


 


(a)           Subject to the satisfaction or waiver of the conditions
set forth in Articles VII and VIII, the closing of the sale and purchase of the
Acquired Assets and the assumption and assignment of the Assumed Liabilities
(the “Closing”) shall
take place at the offices of Seller in Rosemont, Illinois on the date
hereof (the “Closing Date”).  The transfer of the Acquired Assets to
Purchaser and the assumption of the Assumed Liabilities, if any, by Purchaser
shall be deemed to occur at 10:00 a.m. on the Closing Date.


 


(b)           Any deliveries, assignments, or transfers required under
this Agreement, other than the foregoing, shall be made at the time and date
specified in this Agreement (and where no time is specified, on or before the
close of business on the date specified) and in the manner and place specified
in this Agreement.


 


Section 6.2            Obligations of Purchaser on the
Closing Date.  Subject to the
satisfaction or waiver of all conditions precedent to Purchaser’s obligations
and the simultaneous delivery by Seller of all items required under
Section 6.3, Purchaser shall deliver to Seller at the Closing:  (a) the Initial Payment; and (b) duly
executed copies of


 


10
















 


the Bill of Sale and
Termination Agreement and such other documents as Seller may reasonably request
and are necessary or appropriate to consummate the transactions contemplated by
this Agreement.


 


Section 6.3            Obligations of Seller on the
Closing Date.  Subject to the
satisfaction or waiver of all conditions precedent to Seller’s obligations and
the simultaneous delivery by Purchaser of all items required under
Section 6.2, Seller shall deliver or cause to be delivered, as applicable,
to Purchaser at the Closing:  duly
executed copies of the Bill of Sale and Termination Agreement and such other
documents as Purchaser may request and are necessary or appropriate to
consummate the transactions contemplated by this Agreement.


 


Section 6.4            Additional Payments.  Following the Closing Date, the Purchaser
shall make (a) five annual payments to the Seller each in an amount equal
to (i) the annual gross revenues earned by Purchaser, any New Firm and/or
any Affiliate thereof relating to RPM and derived from RPM clients of Seller
existing as of the Closing Date (and any Affiliates of such clients) during
each of the five consecutive 12-month periods following the Closing Date
multiplied by (ii) 20%, payable in each case within 30 days of the
applicable anniversary of the Closing Date (or, if any applicable payments from
any RPM client are not received within 30 days, within five days after receipt
solely with respect to such payment) and (b) a one-time payment equal to (i) the
gross revenues relating to RPM and derived from all RPM clients of Purchaser,
any New Firm and/or any Affiliate thereof (other than those RPM clients of
Seller existing as of the Closing Date (and any Affiliates of such clients))
earned by Purchaser, any New Firm and/or any Affiliate thereof during the fifth
12-month period following the Closing Date multiplied by (ii) 10%, payable
within 30 days of the fifth anniversary of the Closing Date (or, if any
applicable payments from any RPM client are not received within 30 days, within
five days after receipt solely with respect to such payment); provided,
however, that any payment pursuant to Section 6.4(a) of this
Agreement relating to the first 12-month period after the Closing Date shall be
reduced by the amount of the Initial Payment (not less than zero).  Within 10 Business Days of the end of each
calendar quarter following the Closing Date, Purchaser shall deliver to Seller
copies of the quarterly invoice for management fees prepared for each of the
RPM clients of Seller existing as of the Closing Date (and any Affiliates of
such clients) or, if copies of such invoices are not available, an estimate of
such management fees.  The copies of the
fourth quarterly invoices for each 12-month period following the Closing Date
shall be accompanied by the Purchaser’s payment required by Section 6.4(a) of
this Agreement.  The Purchaser’s payment
required by Section 6.4(b) of this Agreement shall be accompanied by
a computation of the payment in a form similar to the one used by Purchaser to
invoice RPM clients for management fees. 
Unless Seller notifies Purchaser within 30 days of receipt of an annual
payment that Seller disputes the amount of such payment, then such payment
shall be deemed to be final.  Any Seller
disputes shall be resolved by mutual agreement of Seller and Purchaser or, if
they fail to agree following discussions for a reasonable period of time, by an
accounting, investment banking, valuation or appraisal firm designated mutually
by Seller and Purchaser, one half of whose fees shall be paid by each of Seller
and Purchaser.


 


11

















 


ARTICLE VII 

CONDITIONS TO PURCHASER’S OBLIGATION

TO CONSUMMATE THE TRANSACTION


 


The obligations of Purchaser under this Agreement
are subject to the satisfaction or waiver, on or before the Closing Date, of
the following conditions:


 


Section 7.1            Representations and Warranties.  The representations and warranties of Seller
contained in this Agreement that are not qualified by a materiality standard
shall be true and correct in all material respects and the representations and
warranties of Seller contained in this Agreement that are qualified by a
materiality standard shall be true and correct in all respects, in each case,
on and as of the Closing Date with the same force and effect as though such
representations and warranties were made at the Closing (or, if given as of a
specific date, at and as of such date).


 


Section 7.2            Compliance with Covenants.  The covenants required to be performed by
Seller at or prior to the Closing pursuant to the terms of this Agreement shall
have been duly performed in all material respects.


 


Any conditions specified in this Article VII
may be waived by Purchaser; provided, that no such waiver shall be
effective unless it is set forth in a writing executed by Purchaser.


 


ARTICLE VIII 

CONDITIONS TO SELLER’S OBLIGATION

TO CONSUMMATE THE TRANSACTION


 


The obligations of Seller under this Agreement to be
performed at the Closing shall be subject to the satisfaction or waiver, on or
before the Closing Date, of the following conditions:


 


Section 8.1            Representations and Warranties.  The representations and warranties of
Purchaser contained in this Agreement that are not qualified by a materiality
standard shall be true and correct in all material respects, and the
representations and warranties of Purchaser contained in this Agreement that
are qualified by a materiality standard shall be true and correct in all
respects, in each case, on and as of the Closing Date with the same force and
effect as though such representations and warranties were made at the Closing
(or, if given as of a specific date, at and as of such date).


 


Section 8.2            Compliance with Covenants.  The covenants required to be performed by
Purchaser at or prior to the Closing pursuant to the terms of this Agreement
shall have been duly performed in all material respects.


 


Section 8.3            Termination Agreement.  No portion of the Termination Agreement,
including any release thereunder, shall have been revoked.


 


12

















 


Any conditions specified in this Article VIII
may be waived by Seller; provided, that no such waiver shall be
effective unless it is set forth in writing executed by Seller.


 


ARTICLE IX 

INDEMNIFICATION


 


Section 9.1            Survival.  The representations and
warranties contained in this Agreement shall survive the Closing for a period
of one year, except that the representations and warranties set forth in
Sections 3.1, 3.2 and 3.3 and Sections 4.1, and 4.2  shall survive indefinitely, and the representations
and warranties set forth in Section 4.3 shall survive until the date which
is ninety (90) days after the end of the applicable statute of limitations
(after giving effect to any waiver, mitigation or extension (whether automatic
or with permission) thereof).  Unless a
specific period is set forth in this Agreement (in which event such specified
period shall control), all other covenants and agreements contained in this
Agreement which are required to be performed after the Closing shall survive
the Closing and remain in effect indefinitely.


 


Section 9.2            Indemnification by Purchaser.  From and after the Closing, subject to the
terms and limitations set forth herein, Purchaser shall indemnify, defend and
hold harmless Seller, each of its Affiliates, and each of their Representatives
(together, the “Seller
Indemnified Parties”), from and against any and all
Indemnifiable Losses relating to, resulting from or arising out of any of the
following:


 


(a)           any breach of or any inaccuracy in any representation or
warranty made by Purchaser in this Agreement or the Bill of Sale;


 


(b)           any breach of any covenant or undertaking of Purchaser
contained in this Agreement or the Bill of Sale; or


 


(c)           (i) any liability or obligation of any nature or
kind, known or unknown, fixed, accrued, absolute or contingent or any claim,
demand or condition to the extent related to the Acquired Assets that is
incurred or results from actions taken from and after the Closing (other than
by reason of the breach of any representation or warranty or covenant of Seller
in this Agreement or any failure by Seller or its Affiliates to obtain any
Third Party Consent), and (ii) any Assumed Liabilities.


 


Section 9.3            Limitations on Indemnification;
Exclusive Remedy.


 


(a)           Following the Closing, the provisions of this
Article IX shall be the exclusive remedy for any and all claims relating
to the subject matter of this Agreement or any of the other Transaction
Documents, except for fraud and any injunctive or other equitable remedy to which
either party may be entitled.


 


(b)           To the extent that Seller or Purchaser shall have any
obligation to indemnify and hold harmless any other Person hereunder, such
obligation


 


13

















 


shall not include (i) consequential, special,
punitive, incidental or indirect damages (and the injured party shall not
recover for such amounts) or (ii) any damages measured by lost profits,
lost revenues, multiple of earnings, business interruption, cost of capital or
loss of business reputation or opportunity, in any case for any breach or
default under, or any act or omission arising out of or resulting from, this
Agreement or the other Transaction Documents or the transactions contemplated
hereby and thereby, under any form of action whatsoever, whether in contract or
otherwise (other than indemnification for fraud or for amounts paid or payable
to third parties in respect of any third party claim for which indemnification
hereunder is otherwise required).


 


ARTICLE X 

TERMINATION


 


Intentionally
Omitted.


 


ARTICLE XI 

GENERAL PROVISIONS


 


Section 11.1          Entire Agreement; Modification;
Waiver.  This Agreement, including
all Annexes hereto, the other Transaction Documents and the documents referred
to herein constitutes the entire agreement of the parties pertaining to the
subject matter contained herein and this Agreement supersedes all prior or
contemporaneous agreements, representations and understandings of the
parties.  No supplement, modification or
amendment to, or waiver of this Agreement shall be binding unless executed in
writing by Seller and Purchaser.  No
waiver of any provision of this Agreement shall be deemed or shall constitute a
waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver.  No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. 
The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by Law.


 


Section 11.2          Counterparts; Effectiveness; Third
Party Beneficiaries.  This Agreement
may be executed in two or more counterparts (by facsimile or otherwise), each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. 
This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other party hereto.  No provision of this Agreement is intended to
confer any rights, benefits, remedies, obligations, or liabilities hereunder
upon any Person other than the parties hereto and their respective successors
and assigns.


 


Section 11.3          Interpretation.  When a reference is made in this Agreement to
Annexes, such reference shall be to an Annex to this Agreement unless
otherwise indicated.  When a reference is
made in this Agreement to Articles or Sections, such


 


14

















 


reference shall be to an
Article or Section of this Agreement unless otherwise indicated.  For purposes of this Agreement, the words “include,”
“includes” and “including” shall be deemed in each case to be followed by the
words “without limitation.”  The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.


 


Section 11.4          Payment of Expenses.  Except as otherwise expressly provided in
this Agreement, whether or not the transactions contemplated hereby are
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses.


 


Section 11.5          GOVERNING LAW; WAIVER OF JURY
TRIAL; CONSENT TO JURISDICTION.


 


(a)           THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES OF SUCH STATE THAT WOULD REQUIRED THE APPLICATION OF
ANY OTHER LAW.


 


(b)           EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.


 


(c)           PURCHASER AND SELLER EACH IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF (I) THE COURTS OF THE STATE OF ILLINOIS, COOK
COUNTY, AND (II) THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF THIS AGREEMENT OR THE RELATED DOCUMENTS AND ANY TRANSACTION
CONTEMPLATED HEREBY OR THEREBY (AND EACH AGREES THAT NO SUCH ACTION, SUIT OR
PROCEEDING RELATING TO THIS AGREEMENT OR THE RELATED DOCUMENTS SHALL BE BROUGHT
BY IT OR ANY OF ITS AFFILIATES EXCEPT IN SUCH COURTS).  EACH OF PURCHASER AND THE SELLER FURTHER
AGREES THAT THE SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S.
REGISTERED MAIL TO SUCH PERSON’S RESPECTIVE ADDRESS SET FORTH IN
SECTION 11.6 SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY ACTION, SUIT OR
PROCEEDING IN ILLINOIS WITH RESPECT TO ANY MATTERS TO WHICH IT HAS SUBMITTED TO
JURISDICTION AS SET FORTH ABOVE IN THE IMMEDIATELY PRECEDING SENTENCE.  EACH OF PURCHASER AND SELLER IRREVOCABLY AND
UNCONDITIONALLY WAIVES (AND AGREES NOT TO PLEAD OR CLAIM) ANY OBJECTION TO THE
LAYING OF VENUE OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT
OR THE OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY IN (I) THE COURTS OF THE STATE OF ILLINOIS, COOK


 


15

















 


COUNTY OR (II) THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS, OR THAT ANY SUCH ACTION, SUIT OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


Section 11.6          Addresses of Notice.  All notices, requests, demands and other
communications provided for under this Agreement and under the related
documents shall be in writing (including telegraphic communication) and mailed
(by registered or certified mail, return receipt requested, or delivered by
Federal Express or other similar express overnight delivery service), or
telegraphed, telecopied or delivered to the applicable party at the addresses
indicated below.


 


	
  If to Purchaser:

  	
  Luke Knecht

  
	
   

  	
  285 West Westminster Road

  
	
   

  	
  Lake Forest, IL 60045

  
	
   

  	
   

  
	
  If to Seller:

  
	
   

  	
  Deerfield Capital Management LLC

  
	
   

  	
  6250 North River Road, 12th Floor

  
	
   

  	
  Rosemont, Illinois 60018

  
	
   

  	
  Attention:   General Counsel

  
	
   

  	
  Facsimile:   (771) 380-1695

  



 


or,
to each party, at such other address that party designates in a written notice
to the other party in accordance with this section.  All such notices, requests, demands or other
communications shall be deemed delivered (i) if sent by messenger, upon
personal delivery to the party to whom the notice is directed, (ii) if
sent by facsimile, upon electronic or telephonic confirmation of receipt from
the receiving facsimile machine, (iii) if sent by reputable overnight courier,
one Business Day after delivery to such courier, or (iv) if sent by mail,
three Business Days following deposit in the United States mail, postage
prepaid, certified mail, return receipt requested.


 


Section 11.7          Intentionally Omitted.


 


Section 11.8          Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.


 


16

















 


Section 11.9          Specific Performance.  The parties hereto agree that irreparable
damage would occur if any provision of this Agreement were not performed in accordance
with the terms hereof and that the parties shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement or to enforce specifically
the performance of the terms and provisions hereof in (i) the courts of
the State of Illinois, Cook County or (ii) the United States District
Court for the Northern District of Illinois, in addition to any other remedy to
which they are entitled at law or in equity.


 


Section 11.10       Rules of Construction.  The parties to this Agreement agree that they
have been represented by counsel, or had the opportunity to be represented by
counsel, during the negotiation and execution of this Agreement and, therefore,
waive the application of any Law or rule of construction providing that
ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.


 


Section 11.11       Employees and Agents of Seller.  Purchaser is under no legal obligation to
employ any personnel formerly employed by Seller.  However, after the Closing Date, Purchaser
may, but shall not be required to, offer employment to those Employees set
forth on Annex A hereto and, except as provided in this Agreement and
the Termination Agreement, each such individual shall have the right, but only
to the extent necessary, to accept such employment without breaching any
non-competition, non-solicitation or non-hire covenant or confidentiality
obligations solely with respect to the Acquired Assets made by him or her in
favor of Seller or its Affiliates or incurring any obligation to Seller or its
Affiliates (the “Eligible Employees”), who
shall be third party beneficiaries of this Section 11.11); provided,
however, that Purchaser shall require, or cause any New Firm to require, that a
condition to any Eligible Employee’s acceptance of an offer of employment by
Purchaser or any New Firm be that such Eligible Employee release Seller from
any obligation to provide severance to such Eligible Employee and waive any
right to severance from Seller related to such Eligible Employee’s departure
from Seller, in each case upon terms acceptable to Seller.


 


Section 11.12       Remittances.  Seller shall use commercially reasonable
efforts to cause all remittances, mail and other communications relating to the
Acquired Assets, Assumed Liabilities or the Purchaser received by Seller after
the Closing Date to be promptly forwarded to Purchaser.


 


[Remainder of Page Intentionally
Left Blank]


 


17

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.


 


	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  DEERFIELD CAPITAL MANAGEMENT LLC  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert A. Contreras

  
	
   

  	
   

  	
  Name:

  	
  Robert A. Contreras

  
	
   

  	
   

  	
  Title:

  	
  General Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  LUKE D. KNECHT

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Luke D. Knecht

  



 


18
















 


ANNEX A


 


ASSETS AND ELIGIBLE EMPLOYEES


 


Assets


 


1.                                      Knecht’s laptop
computer, external monitor and all locally installed software and data files
(excluding anything specific to Seller and not relevant to the operation of the
RPM product or servicing of the RPM clients).


2.                                      Frye’s trading
desk computer, monitors and all locally installed software and data files
(excluding anything specific to Seller and not relevant to the operation of RPM
or the servicing of the RPM clients).


3.                                      Knecht’s
trading desk computer, monitors and all locally installed software and data
files (excluding anything specific to Seller and not relevant to the operation
of the RPM product or servicing of the RPM clients).


4.                                      The Synopsis
software license and all installs of the software and the associated files
necessary to make the software function (Knecht’s laptop, Frye’s trading desk
computer and Knecht’s trading desk computer)


5.                                      All RATs
software, licenses and related data files as contained on the above mentioned
computers and network T drive


6.                                      All data files
necessary for the Synopsis and RATs software to function (files located on the
T drive under the directory DDM


7.                                      All
spreadsheets relating to the historic results or simulated results of DDM and
RPM as contained in the network T drive under the DDM directory in various
sub-folders


8.                                      All Power
Point, Word documents, PDF files and Excel files containing client update or
marketing material specific to RPM including those on the T drive under the DDM
directory as well as those on the Presentations Drive in the directory
Marketing/RPM


9.                                      Hard copy RPM
client files maintained by Knecht


10.                               Hard copy of
historic presentations to RPM clients and prospects


11.                               All manuals and
other documentation regarding Synopsis and RATs whether in electronic (MS Word,
PDF, Excel, Power Point or Access) or hard copy form.


12.                               Hard copies of
all client contracts and correspondence relating to RPM maintained by Legal and
Accounting


13.                               Copies of all
client records necessary to support the historic performance record of RPM
including the records acquired by Seller when it acquired the product from RCM
and copies of all month-end RPM custodial statements.


14.                               Microsoft
Outlook PST files for Knecht and Frye including contacts


15.                               Copies of RPM
daily trading records


 


Eligible Employees


 


 


Christine Frye


 


A-1

















 


ANNEX B


 


BILL OF SALE


 


THIS BILL OF SALE (this “Bill of Sale”) is made and
entered into as of [date], 2010, by and between Deerfield Capital Management LLC,
a Delaware limited liability company (“Seller”),
and Luke D. Knecht (“Purchaser”).  Unless otherwise defined herein, all
capitalized terms used in this Bill of Sale shall have the respective meanings
ascribed to them in the Agreement (defined below).


 


WHEREAS, pursuant to
the Asset Purchase Agreement, dated as of [ 
], 2010 (the “Agreement”),
by and between Seller and Purchaser, Purchaser has agreed to purchase from
Seller, and Seller has agreed to sell and deliver to Purchaser, all of its
right, title and interest in and to the Acquired Assets.


 


NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged by Seller, Seller
does hereby sell, convey, assign, transfer and deliver to Purchaser, and its
successors and assigns, all of Seller’s right, title and interest in and to the
Acquired Assets.


 


In accordance with the Agreement, the Acquired
Assets shall not include, and Purchaser is not acquiring from Seller, any of
the Excluded Assets, and Seller shall retain ownership of all right, title and
interest in and to the Excluded Assets.


 


Seller covenants and agrees with Purchaser that
Seller will from time to time execute, acknowledge and deliver such other and
further instruments and will take such other action as may be necessary or
desirable to carry out more effectively the transfer of the Acquired Assets
provided for herein.


 


Nothing in this instrument, express or implied, is
intended or shall be construed to confer upon, or give to, any Person other
than Purchaser and its successors and permitted assigns, any remedy or claim
under or by reason of this instrument or any agreements, covenants or terms
hereof, and all the agreements, covenants and terms contained in this
instrument shall be for the sole and exclusive benefit of Purchaser and its
successors and permitted assigns.


 


This Bill of Sale shall inure to the benefit of and
be binding upon and enforceable against Seller, Purchaser and their respective
successors and permitted assigns.


 


This Bill of Sale shall be governed by and construed
in accordance with the laws of the State of Illinois, without regard to the
conflict of laws principles thereof that would require the application of any
other law.


 


EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT,
NEITHER SELLER NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, RELATING TO


 


B-1

















 


THE
ASSETS OR ANY OTHER MATTER, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO
MERCHANTABILITY, HABITABILITY, PROFITABILITY, FUTURE PERFORMANCE, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND THE PURCHASE AND SALE OF THE ASSETS
IS BEING MADE ON AN “AS IS, WHERE IS” BASIS.


 


The terms of the Agreement (including the
definitions and usage provisions) are incorporated herein by reference and will
not be superseded, modified, replaced, amended, changed, rescinded or otherwise
affected by this Bill of Sale, but will remain in full force and effect to the
full extent provided therein.  If there
is any inconsistency between the Agreement and this Bill of Sale, the Agreement
will control and govern.


 


This Bill of Sale may not be amended, supplemented
or otherwise modified except in a written document executed by the party
against whose interest the modification will operate.


 


This Bill of Sale may be executed in any number of
counterparts (including by facsimile or otherwise), each of which shall be
deemed to be an original, and all of which together shall be deemed to be one
and the same instrument.


 


This Bill of Sale is given pursuant to the
Agreement, and, except as herein otherwise provided, the transfer of the
property hereunder is made subject to the terms and provisions of the
Agreement.


 


IN WITNESS WHEREOF, this Bill of
Sale has been duly executed and delivered by the duly authorized office of
Seller as of the date first written above.


 


	
   

  	
  DEERFIELD CAPITAL MANAGEMENT LLC  

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  AGREED
  AND ACCEPTED:

  
	
   

  
	
   

  	
  LUKE D. KNECHT

  
	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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