EFTA01186011.pdf

EX-3.2 3 dex32.htm AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF APOLLO Exhibit 3.2 AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF APOLLO GLOBAL MANAGEMENT, LLC DATED AS OF JULY 13, 2007 EFTA01186011  TABLE OF CONTENTS S1 t ARTICLE I DEFINITIONS 1 Section 1.1 Definitions Section 1.2 Interpretation 11 ARTICLE II ORGANIZATION 12 Section 2.1 Formation 12 Section 2.2 Certificate of Formation 12 Section 2.3 Name 12 Section 2.4 Registered Office; Registered Agent; Principal Office; Other Offices 12 Section 2.5 Purposes 13 Section 2.6 Powers 13 Section 2.7 Power of Attorney 13 Section 2.8 Term 14 Section 2.9 Title to Company Assets 14 ARTICLE III MEMBERS AND SHARES 15 Section 3.1 Members 15 Section 3.2 Authorization to Issue Shares 16 Section 3.3 Certificates 16 Section 3.4 Record Holders 17 Section 3.5 Registration and Transfer of Shares 18 Section 3.6 Restrictions on Transfers 18 Section 3.7 Citizenship Certificates; Non-citizen Assignees 20 Section 3.8 Redemption of Shares of Non-citizen Assignees 20 Section 3.9 Rights of Members 21 Section 3.10 ERISA Ownership Limitations 22 ARTICLE IV SPLITS AND COMBINATIONS 24 Section 4.1 Splits and Combinations 24 ARTICLE V CAPITAL ACCOUNTS; ALLOCATIONS OF TAX ITEMS; DISTRIBUTIONS 25 Section 5.1 Maintenance of Capital Accounts; Allocations 25 Section 5.2 Distributions to Record Holders 26 ARTICLE VI MANAGEMENT AND OPERATION OF BUSINESS 27 Section 6.1 Management 27 Section 6.2 Restrictions on Manager's Authority 29 Section 6.3 Resignation of the Manager 29 Section 6.4 Board Generally 30 Section 6.5 Election of Directors 30 Section 6.6 Removal 30 EFTA01186012  TABLE OF CONTENTS (continued) Section 6.7 Resignations 30 Section 6.8 Vacancies 30 Section 6.9 Chairman of Meetings 31 Section 6.10 Place of Meetings 31 Section 6.11 Special Meetings; Notice 31 Section 6.12 Action Without Meeting 31 Section 6.13 Conference Telephone Meetings 31 Section 6.14 Quorum 31 Section 6.15 Committees 31 Section 6.16 Remuneration 32 Section 6.17 Reimbursement of the Manager 32 Section 6.18 Outside Activities 33 Section 6.19 Loans from the Manager; Loans or Contributions from the Company; Contracts with Affiliates; Certain Restrictions on the Manager 33 Section 6.20 Indemnification 34 Section 6.21 Liability of Indemnified Persons 36 Section 6.22 Resolution of Conflicts of Interest; Standards of Conduct and Modification of Duties 37 Section 6.23 Other Matters Concerning the Manager 38 Section 6.24 Reliance by Third Parties 39 ARTICLE VII BOOKS; RECORDS; ACCOUNTING AND REPORTS 39 Section 7.1 Records and Accounting 39 Section 7.2 Fiscal Year 39 Section 7.3 Reports 39 ARTICLE VIII TAX MATTERS 40 Section 8.1 Tax Returns and Information 40 Section 8.2 Tax Elections 40 Section 8.3 Tax Controversies 40 Section 8.4 Withholding 41 Section 8.5 Class B Common Shares 41 Section 8.6 Tax Receivable Agreement 41 ARTICLE IX DISSOLUTION AND LIQUIDATION 41 Section 9.1 Dissolution 41 Section 9.2 Liquidator 41 Section 9.3 Liquidation 42 Section 9.4 Cancellation of Certificate of Formation 42 Section 9.5 Return of Contributions 42 ii EFTA01186013  TABLE OF CONTENTS (continued) Pace Section 9.6 Waiver of Partition 43 ARTICLE X AMENDMENT OF AGREEMENT 43 Section 10.1 Amendments to be Adopted Solely by the Manager 43 Section 10.2 Amendment Procedures 44 Section 10.3 Amendment Requirements 44 ARTICLE XI MERGER, CONSOLIDATION OR CONVERSION 45 Section 11.1 Authority 45 Section 11.2 Procedure for Merger, Consolidation or Conversion 45 Section 11.3 Approval by Members of Merger, Consolidation or Conversion or Sales of Substantially All of the Company's Assets 46 Section 11.4 Certificate of Merger or Conversion 47 Section 11.5 Amendment of Agreement 47 Section 11.6 Effect of Merger 48 Section 11.7 Corporate Treatment; Change of Law 48 ARTICLE XII MEMBER MEETINGS 48 Section 12.1 Member Meetings 48 Section 12.2 Notice of Meetings of Members 49 Section 12.3 Record Date 49 Section 12.4 Quorum: Required Vote for Member Action; Voting for Directors; Adjournment 50 Section 12.5 Conduct of a Meeting; Member Lists 50 Section 12.6 Action Without a Meeting 51 Section 12.7 Voting and Other Rights 51 Section 12.8 Proxies and Voting 52 ARTICLE XIII GENERAL PROVISIONS 53 Section 13.1 Addresses and Notices 53 Section 13.2 Further Assurances 53 Section 13.3 Binding Effect 53 Section 13.4 Integration 53 Section 13.5 Creditors 53 Section 13.6 Waiver 54 Section 13.7 Counterparts 54 Section 13.8 Applicable Law 54 Section 13.9 Severability 54 Section 13.10 Consent of Members 54 Section 13.11 Facsimile Signatures 54 iii EFTA01186014  This Amended and Restated Limited Liability Company Operating Agreement, dated as of July 13, 2007 (as amended, supplemented or restated from time to time, this "Agreement"), of Apollo Global Management, LLC, a Delaware limited liability company (the "Company"), is made and entered into and shall be effective as of this 13th day of July, 2007, by and among the Members (as defined below), AGM Management, LLC, a Delaware limited liability company (the "Manager"), and the Company. WHEREAS, the Company was formed under the Delaware Act pursuant to a certificate of formation filed with the Secretary of State of the State of Delaware on July 3, 2007; WHEREAS, the Company and certain Members originally entered into a Limited Liability Company Operating Agreement, dated as of July 3, 2007 (the "Original Agreement.), for the purpose of governing the affairs of, and the conduct of the business of, a limited liability company formed pursuant to the provisions of the Delaware Act; WHEREAS, the parties hereto are entering into this Agreement to amend and restate the Original Agreement in its entirety as set forth herein and the Manager has authorized and approved an amendment and restatement of the Original Agreement on the terms set forth herein. NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants and undertakings contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions. The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement. "Affiliate of any Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person. Except as expressly stated otherwise in this Agreement, the term "Affiliate" with respect to the Company does not include at any time any Fund or Portfolio Company. "Aggregate Class B Vote" has the meaning set forth in Section 12.7(e). "Agreement" has the meaning set forth in the recitals to this Agreement. "Agreement Among Principals" means the Agreement Among Principals, dated as of the date hereof, by and among the Principals, Black Family Partners, L.P., a Delaware limited partnership, MJR Foundation LLC, a New York limited liability company, BRH and Holdings, as may be amended, supplemented or restated from time to time. "Apollo Employer" means the Company (or such successor thereto or such other entity controlled by the Company or its successor as may be such Person's employer at such time, but does not include any Portfolio Companies). 1 EFTA01186015  "Apollo Group" means (i) the Manager and its Affiliates, including their respective general partners, members and limited partners, (ii) Holdings and its Affiliates, including their respective general partners, members and limited partners, (iii) with respect to each Principal, such Principal and such Principal's Group, (iv) any former or current investment professional of or other employee of an Apollo Employer or the Apollo Operating Group (or such other entity controlled by a member of the Apollo Operating Group) and any member of such Person's Group, (v) any former or current executive officer of an Apollo Employer or the Apollo Operating Group (or such other entity controlled by a member of the Apollo Operating Group) and any member of such Person's Group; and (vi) any former or current director of an Apollo Employer or the Apollo Operating Group (or such other entity controlled by a member of the Apollo Operating Group) and any member of such Person's Group. "Apollo Operating Group" means (i) Apollo Management Holdings, L.P., a Delaware limited partnership, Apollo Principal Holdings I, L.P., a Delaware limited partnership, Apollo Principal Holdings II, L.P., a Delaware limited partnership, Apollo Principal Holdings III, L.P., a Cayman Islands exempted limited partnership, Apollo Principal Holdings IV, L.P., a Cayman Islands exempted limited partnership, and any successors thereto or other entities formed to serve as holding vehicles for the carry vehicles, management companies or other entities formed by the Company or its Subsidiaries to engage in the asset management business (including alternative asset management) and (ii) any such carry vehicles, management companies or other entities formed by the Company or its Affiliates to engage in the asset management business (including alternative asset management) and receiving management fees, incentive fees, fees paid by Portfolio Companies, carry or other remuneration which are not Subsidiaries of the Persons described in clause (i), excluding any Funds and any Portfolio Companies. "Applicable Lae means, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any Governmental Entity applicable to such Person. "Assets" means all assets, whether, tangible or intangible and whether real, personal or mixed, at any time owned by the Company, including cash and investments acquired by the Manager for the account of the Company in the course of carrying on the activities of the Company, including the lending of money or the purchasing of shares, bonds, debentures, notes, warrants, options or other securities, instruments, rights or any other assets of the Company (whether convertible or exchangeable or not); "Audit Committee" means a committee of the Board designated as such in accordance with Section 6.15 hereof, and composed entirely of one or more Independent Directors. "Beneficial Owner" means, with respect to a Share, a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has or shares: (A) voting power, which includes the power to vote, or to direct the voting of, such Share and/or (B) investment power, which includes the power to dispose, or to direct the disposition of, such Share. The terms "Beneficially Own" and "Beneficial Ownership" have correlative meanings. "Board" means the Board of Directors of the Company. "Business Day" means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close. "BRH" means BRH Holdings, L.P., a Cayman Islands exempted limited partnership. "BRHHoldings" means BRH Holdings GP, Ltd, a Cayman Islands exempted company. "BR!!Holdings Cessation Date" has the meaning set forth in Section 3.2(c). 2 EFTA01186016  "Capital Contribution" means any cash, cash equivalents or the fair market value (as determined by the Manager) of any property or asset that a Member contributes to the Company pursuant to this Agreement. "Carrying Value" means, with respect to any Company asset, the asset's adjusted basis for U.S. federal income tax purposes, except that the initial carrying value of assets contributed to the Company shall be their respective gross fair market values on the date of contribution as determined by the Manager, and the Carrying Values of all Company assets shall be adjusted to equal their respective fair market values, in accordance with the rules set forth in United States Treasury Regulation Section 1.704-1(b)(2Xiv)(f), except as otherwise provided herein, as of: (a) the date of the acquisition of any additional Share by any new or existing Members in exchange for more than a de minimis Capital Contribution; (b) the date of the distribution of more than a de minimis amount of Company assets to a Member; (c) the date a Share is relinquished to the Company; or (d) any other date specified in the United States Treasury Regulations; provided however that adjustments pursuant to clauses (a), (b) (c) and (d) above shall be made only if such adjustments are deemed necessary or appropriate by the Manager to reflect the relative economic interests of the Members. In the case of any asset that has a Carrying Value that differs from its adjusted tax basis, Carrying Value shall be adjusted by the amount of depreciation calculated for purposes of the definition of "Net Income (Loss)" rather than the amount of depreciation determined for U.S. federal income tax purposes, and depreciation shall be calculated by reference to Carrying Value rather than tax basis once Carrying Value differs from tax basis. "Certificate" means a certificate issued in global form in accordance with the rules and regulations of the Depository Trust Company or in such other form as may be adopted by the Manager, issued by the Company evidencing ownership of one or more Class A Common Shares or Class B Common Shares or a certificate, in such form as may be adopted by the Manager, issued by the Company evidencing ownership of one or more other securities of the Company. "Certificate ofFormation" means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware, as may be amended, supplemented or restated from time to time. "Charitable Institution" means an organization described in Section 501(c)(3) of the Code (or any corresponding provision of a future United State Internal Revenue law) which is exempt from income taxation under Section 501(a) thereof. "Charitable Beneficiary" means one or more beneficiaries of a trust as determined pursuant to Section 3.10(d)(vi), provided that each such organization must be described in Section 50I(cX3) of the Code and contributions to each such organization must be eligible for deduction under each of Sections 70(b)(I )(A), 2055 and 2522 of the Code. "Citizenship Certification" means a properly completed certificate in such form as may be specified by the Manager by which a Member certifies that he, she or it (and if he, she or it is a nominee holding for the account of another Person, that to the best of his knowledge such other Person) is an Eligible Citizen. "Class A Common Shares" means the Class A Common Shares of the Company (including any non-voting Class A Common Shares held by an Investor or its Affiliates) representing limited liability company interests in the Company, having such rights associated with such Class A Common Shares as set forth in this Agreement and any equity securities issued or issuable in exchange for or with respect to such Class A Common Shares (i) by way of a dividend, split or combination of shares or (ii) in connection with a reclassification, recapitalization, merger, consolidation or other reorganization. 3 EFTA01186017  "Class B Common Shares" means the Class B Common Shares of the Company representing limited liability company interests in the Company, having such rights associated with such Class B Common Shares as set forth in this Agreement and any equity securities issued or issuable in exchange for or with respect to such Class B Common Shares (i) by way of a dividend, split or combination of shares or (ii) in connection with a reclassification, recapitalization, merger, consolidation or other reorganization. "Code" means the Internal Revenue Code of 1986, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder. "Common Shares" means the Class A Common Shares and Class B Common Shares. "Company" has the meaning set forth in the recitals to this Agreement, including any successor entity thereto. "Company Group" means the Company and each Subsidiary of the Company. "Company Group Member" means a member of the Company Group. "Conflicts Committee" means a committee of the Board designated as such in accordance with Section 6.15 hereof, and composed entirely of one or more Independent Directors. "Control' means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contrast or otherwise, and "controlling" and "controlled" shall have meanings correlative thereto. "CS Rights Agreement' means the Registration Rights Agreement, to be entered into by and between the Company and "CS" (as defined in the Shareholders Agreement), as it may be amended, supplemented or restated from time to time. "Current Market Price' means with respect to any class of Shares as of any date, the average of the daily closing prices per Share of such class for the 20 consecutive Trading Days immediately prior to such date, or as otherwise determined in accordance with Section 3.8(a)(h). "Delaware Act" means the Delaware Limited Liability Company Act, 6 Del. C. Section 18.101, et seq., as amended, supplemented or restated from time to time, and any successor to such statute. "Departing Manager" means a former Manager from and after the effective date of any withdrawal of such former Manager. "DGCL" means the Delaware General Corporation Law, as amended, supplemented or restated from time to time, and any successor to such statute. "Director" means a member of the Board. "Eligible Citizen" means a Person qualified to own interests in real property in jurisdictions in which any Company Group Member does business or proposes to do business from time to time, and whose status as a Member the Manager determines in its sole discretion does not or would not subject such Company Group Member to a significant risk of cancellation or forfeiture of any of its properties or any interest therein. "ERMA- means the U.S. Employee Retirement Income Security Law of 1974, as amended, and rules and regulations promulgated thereunder. "ER1SA Person" means any Person which is, or is acting on behalf of, a Plan. "ERISA Dust" has the meaning set forth in Section 3.10(g). 4 EFTA01186018  "Exchange Act' means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time, and the rules and regulations promulgated thereunder. "Exchange Agreement" means the Exchange Agreement, dated as of date hereof, by and among the Company, each member of the Apollo Operating Group, Intermediate Holdings and the other parties thereto. "Fund" means any pooled investment vehicle or similar entity sponsored or managed, directly or indirectly, by the Company or any of its Subsidiaries. "Governmental Entity" means any Federal, state, county, city, local or foreign governmental, administrative or regulatory authority, commission, committee, agency or body (including any court, tribunal or arbitral body). "Group" has the meaning set forth in Section 13(d) of the Exchange Act as in effect on the date of this Agreement. "Holdings" means AP Professional Holdings, L.P., a Cayman Islands exempted limited partnership. "Indemnified Person" means: (a) the Manager, (b) any Departing Manager; (c) any Affiliate of the Manager or any Departing Manager; (d) any member, partner, Tax Matters Partner (as defined in the Code), officer, director, employee, agent, fiduciary or trustee of any Company Group Member, the Manager, any Departing Manager or any of their respective Affiliates; (e) any Person who is or was serving at the request of the Manager or any Departing Manager or any of their respective Affiliates as an officer, director, employee, member, partner, Tax Matters Partner, agent, fiduciary or trustee of another Person; provided that a Person shall not be an Indemnified Person by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services; and (f) any Person that the Manager in its sole discretion designates as an "Indemnified Person" for purposes of this Agreement. "Independent Director" means a Director who meets the then current independence standards required of audit committee members established by the Exchange Act and the rules and regulations of the SEC thereunder and by each National Securities Exchange on which Shares are listed for trading. "Initial Offering" means the earlier to occur of (i) a Private Placement or (ii) an IPO. "Initial Offering Registration Rights Agreements" means any registration rights agreement approved by the Manager in connection with the consummation of an IPO. "Investment Company Ace' means the U.S. Investment Company Act of 1940, as amended, modified, supplemented or restated from time to time. "Investor" means, each of the APOC Holdings, Ltd., a Cayman Islands exempted company, and California Public Employees' Retirement System, a unit of the State and Consumer Services Agency of the State of California (together with its Affiliates that become Noteholders under the Strategic Agreement). "IPO" means the earlier of (i) the consummation of an underwritten public offering of Class A Common Shares pursuant to an effective registration statement (other than on Forms S-4 or S-8 or successors and/or equivalents to such forms); provided, that no such underwritten public offering shall constitute an "IPO" for the purposes of this Agreement unless (x) it involves a sale to underwriters for distribution to the public representing a public float of at least 10% of the then Outstanding Voting S EFTA01186019 Power of the Company (calculated on a fully-diluted basis as if all outstanding Operating Group Units have been exchanged for, and all outstanding Notes have been converted into, Class A Common Shares) and (y) such offering satisfies the Price Threshold, and (ii) the effectiveness of the shelf registration statement to be filed by the Company in respect of the Class A Common Shares to be sold in the Private Placement; in the case of clauses both (i) and (ii), such registration statement to be filed by the Company with the SEC or (in connection with a listing on the London Stock Exchange) with the Financial Services Authority of the United Kingdom. "WO Date" means the first date on which Class A Common Shares are delivered by the Company to the Underwriters pursuant to the provisions of the Underwriting Agreement. "Lender Rights Agreement" means the Lender Rights Agreement, dated as of the date hereof, by and among the Investors and the Company, as it may be amended, supplemented or restated from time to time. "Liquidator" means one or more Persons selected by the Manager to perform the functions described in Section 9.2 as liquidating trustee of the Company within the meaning of the Delaware Act. "Manager" has the meaning set forth in the recitals. "Member" means any Person owning any Share in the Company, including any Substitute Member or any Person admitted as a Member of the Company in accordance with Article III as a result of an issuance of Shares by the Company to such Person. "Merger Agreement" has the meaning set forth in Section 11.1. "National Securities Exchange" means an exchange registered with the SEC under Section 6(a) of the Exchange Act or any other exchange (domestic or foreign, and whether or not so registered) designated by the Manager as a National Securities Exchange. "Net Income (lim)" for any tax years means the taxable income or loss of the Company for such period as determined in accordance with the accounting method used by the Company for U.S. federal income tax purposes with the following adjustments; (i) any income of the Company that is exempt from U.S. federal income taxation and not otherwise taken into account in computing Net Income (Loss) shall be added to such taxable income or loss; (ii) if the Carrying Value of any asset differs from its adjusted tax basis for U.S. federal income tax purposes, any depreciation, amortization or gain resulting from a disposition of such asset shall be calculated with reference to such Carrying Value; (iii) upon an adjustment to the Carrying Value of any asset, pursuant to the definition of Carrying Value, the amount of the adjustment shall be included as gain or loss in computing such taxable income or loss; and (iv) any expenditures of the Company not deductible in computing taxable income or loss, not properly capitalizable and not otherwise taken into account in computing Net Income (Loss) pursuant to this definition shall be treated as deductible items. "Non-citizen Assignee" means a Person whom the Manager has determined in its sole discretion does not constitute an Eligible Citizen and as to whose Shares the Manager has become the Member, pursuant to Section 3.8. "Noteholder" means any Person who holds a Note, other than Persons who acquired Notes in a transaction not permitted by the Notes, the Strategic Agreement, any substantially similar agreement pursuant to which additional Notes may be issued and the Lender Rights Agreement. "Notes" means the 7% convertible senior unsecured notes of the Company, convertible into non-voting Class A Common Shares, as each may be amended, supplemented, restated or otherwise modified from time to time. "Notes" shall also include any additional Notes issued within ninety (90) days of the date hereof. 6 EFTA01186020  "Operating Group Units- refers to units in the Apollo Operating Group, each of which represent one limited partnership interest in each of the limited partnerships that comprise the Apollo Operating Group and any other securities issued or issuable in exchange for or with respect to such Operating Group Units (i) by way of a dividend, split or combination of shares or (ii) in connection with a reclassification, recapitalization, merger, consolidation or other reorganization. All calculations in respect of the Operating Group Units shall assume that all Operating Group Units shall have vested fully as of the date of determination. "Opinion ofCounsel' means a written opinion of counsel (who may be regular counsel to the Company or any of its Affiliates) acceptable to the Manager. "Outstanding" means, with respect to Company securities, all Company securities that are issued by the Company and reflected as outstanding on the Company's books and records as of the date of determination; provided, however, that if at any time any Person or Group (other than any member of the Apollo Group) Beneficially Owns 20% or more of any class of Outstanding Shares, all Shares owned by such Person or Group shall not be entitled to be voted on any matter and shall not be considered to be Outstanding when sending notices of a meeting of Members to vote on any matter (unless otherwise required by Applicable Law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement; provided,further, that the foregoing limitation shall not apply: (i) to any Person or Group who acquired 20% or more of any Outstanding Shares of any class then Outstanding directly from any member of the Apollo Group; (ii) to any Person or Group who acquired 20% or more of any Outstanding Shares of any class then Outstanding directly or indirectly from a Person or Group described in clause (i) provided that the Manager shall have notified such Person or Group in writing that such limitation shall not apply; or (iii) to any Person or Group who acquired 20% or more of any Shares issued by the Company with the prior approval of the Manager; provided,further, that if at any time the Investor or any of its Affiliates Beneficially Owns any Class A Common Shares, no Class A Common Shares Beneficially Owned by the Investor or any ofits Affiliates shall be entitled to be voted on any matter and shall not be considered to be Outstanding when sending notices of a meeting of Members to vote on any matter (unless otherwise required by Applicable Law), calculating required votes, determining the presence of a quorum or for other similar purposes under this Agreement. "Percentage Interest" means, as to any Class A Common Shares held by any Person (assuming the conversion of the Notes into Class A Common Shares), the product obtained by multiplying (a) 100% less the percentage applicable to the Shares referred to in clause (iii) by (b) the quotient obtained by dividing (x) the number of such Class A Common Shares held by such Person (determined on an as- converted basis) by (y) the total number of all Outstanding Class A Common Shares (determined on an as-converted basis), (ii) as to any Class B Common Shares, 0%, and (iii) as to any other Shares, the percentage established for such Shares by the Manager as a part of the issuance of such Shares. "Person" shall be construed broadly and includes any individual, corporation, firm, partnership, limited liability company, joint venture, estate, business, association, trust, Governmental Entity or other entity. "Plan- means (a) an "employee benefit plan" (within the meaning of Section 3(3) of ERISA) that is subject to Part 4 of Subtitle B Title I of ERISA, (b) a plan, individual retirement account or other arrangement that is subject to Section 4975 of the Code or any Similar Law, or (c) an entity whose underlying assets are considered to include "plan assets" of any such plan, account or arrangement pursuant to ERiSA, the Code, any applicable Similar Law or otherwise; "Plan Asset Regulations" means the plan asset regulations of the U.S. Department of Labor, 29 C.F.R. Sec. 2510.3-101 (as modified by Section 3(42) of ERiSA); 7 EFTA01186021  "Plan of Conversion" has the meaning set forth in Section 11.1. "Portfolio Company" means any Person in which any Fund owns or has made, directly or indirectly, an "Investment" (as defined in the Strategic Agreement). "Preferred Shares" means a class of Shares that entitles the Record Holders thereof to a preference or priority over the Record Holders of any other class of Shares in: (i) the right to share profits or losses or items thereof; (ii) the right to share in Company distributions; or (iii) rights upon dissolution or liquidation of the Company. "Price Threshold- has the meaning set forth in the Strategic Agreement. "Principal" means each of Leon D. Black, Marc J. Rowan and Joshua J. Harris. "Principal's Group" means with respect to each Principal, such Principal and (i) such Principal's spouse, (ii) a lineal descendant of such Principal's parents, the spouse of any such descendant or a lineal descendent of any such spouse, (iii) a Charitable Institution controlled solely by such Principal and other members of such Principal's Group, (iv) a trustee of a trust (whether inter vivos or testamentary), all of the current beneficiaries and presumptive remaindermen of which are one or more of such Principal and Persons described in clauses (i) through (iii) of this definition, (v) a corporation, limited liability company or partnership, of which all of the outstanding shares of capital stock or interests therein are owned by one or more of such Principal and Persons described in clauses (i) through (iv) of this definition, (vi) an individual mandated under a qualified domestic relations order, or (vii) a legal or personal representative of such Principal in the event of his death or Disability. For purposes of this definition, (x) "lineal descendants" shall not include individuals adopted after attaining the age of eighteen (18) years and such adopted Person's descendants; and (y) "presumptive remaindermen" shall refer to those Persons entitled to a share of a trust's assets if it were then to terminate. No Principal shall ever be a member of the Principal Group of another Principal. As used herein, "Principal's Group means individually, any member of a Principal's Group or, collectively, more than one member of a Principal's Group. "Private Placement" means a private placement of Class A Common Shares pursuant to Rule 144A (or any successor provision) and Regulation S promulgated under the Securities Act, in an offering (i) to at least fifteen (15) purchasers and (ii) that requires the Company to file with the SEC a shelf registration statement permitting registered re-sales of the Class A Common Shares within eight (8) months of the consummation of such offering (subject to Section 6.2(d)); provided, that no such private placement shall qualify as a "Private Placement" for the purposes of this Agreement, unless (x) such offering satisfies the Price Threshold and (y) it involves engagement of one or more initial purchasers, placement agents or investment banks performing a similar role for the purpose of facilitating the distribution of Class A Common Shares representing at ►east 10% of the then outstanding equity interests of the Company (calculated on a fully-diluted basis as if all outstanding Operating Group Units have been exchanged for, and all outstanding Notes had been converted into, Class A Common Shares); provided,further that in the event that any Person purchases Class A Common Shares representing more than 25% of such offering, the amount in excess of 25% shall be disregarded for the purpose of determining whether the 10% threshold set forth in this clause (y) has been satisfied. "Prohibited Owner" has the meaning set forth in Section 3.10(a). "Quarter" means, unless the context requires otherwise, a fiscal quarter, or, with respect to the first fiscal quarter after the IPO Date, the portion of such fiscal quarter after the IPO Date, of the Company. EFTA01186022  "Record Date" means the date established by the Manager in its sole discretion for determining (a) the identity of the Record Holders entitled to notice of, or to vote at, any meeting of Members or entitled to vote by ballot or give approval of Company action in writing without a meeting or entitled to exercise rights in respect of any lawful action of Members; or (b) the identity of Record Holders entitled to receive any report or distribution or to participate in any offer. "Record Holder" or "holder" means with respect to any Shares, the Person in whose name such Shares are registered on the books of the Transfer Agent as of the opening of business on a particular Business Day. "Registration Statement' means (i) any registration statement or comparable U.K. filing, as it may be amended or supplemented from time to time, filed by the Company with the SEC or the Financial Services Authority of the United Kingdom (other than on Forms S4 or S-8 or successors and/or equivalents to such forms), in each case, to register the offering and sale of the Class A Common Shares in the Initial Offering, or (ii) any Private Placement offering memorandum, as it may be amended or supplemented from time to time, prepared by the Company pursuant to an exemption from the Securities Act including, without limitation, Rule 144A and Regulation S promulgated under the Securities Act to effect a Private Placement of Class A Common Shares by the Company in the Initial Offering. "Roll-up Agreements" mean the several Roll-up Agreements, each dated as of the date hereof, among Holdings, BRH, the Company, APO Corp., a Delaware corporation, and APO Asset Co., LLC, a Delaware limited liability company, on the one hand, and a senior manager of Apollo, on the other hand, in each case, dated as of the date hereof. "SEC' means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act. "Securities Act- means the Securities Act of 1933, as amended, supplemented or restated from time to time, and the rules and regulations promulgated thereunder. "Share" means a share of capital stock or other equity interests (including, the Class A Common Shares and the Class B Common Shares) of the Company or any options, warrants or other securities that are directly or indirectly convertible into, or exercisable or exchangeable for, capital stock or other equity interests of the Company then outstanding (including, for the avoidance of doubt, the Notes). "Share Designation" means, with respect to any additional Shares that may be issued by the Company in one or more classes in accordance with the terms of this Agreement, such designations, preferences, rights, powers and duties (which may be junior to, equivalent to, or senior or superior to, any existing classes of Shares), as shall be fixed by the Manager and reflected in a written action or actions approved by the Manager. "Shareholders Agreement' means the Shareholders Agreement, dated as of the date hereof, by and among the Company, Holdings, SRI!, Black Family Partners, L.P., a Delaware limited partnership, MJR Foundation LLC, a New York limited liability company, and each of the Principals, as it may be amended, supplemented or restated from time to time. "Similar Lain' means any state, local, non-U.S. or other laws or regulations that would have the same effect as the Plan Asset Regulations so as to cause the underlying assets of the Company to be treated as assets of an investing entity by virtue of its investment (or any beneficial interest) in the Company and thereby subject the Company and the Manager (or other Persons responsible for the investment and operation of the Company's assets) to laws or regulations that are similar to the fiduciary responsibility or prohibited transaction provisions contained in Title I of ERISA or Section 4975 of the Code. 9 EFTA01186023  "Special Approval" means either (a) approval by a majority of the members of the Conflicts Committee, as applicable, or (b) approval by the vote of the Record Holders of a majority of the voting power of the Outstanding Voting Shares (excluding Voting Shares owned by the Manager and its Affiliates). "Strategic Agreement" means the Strategic Agreement,