UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): April 2, 2019 (April 1, 2019)
OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 001-33805 | 26-0354783 | ||
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(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 9 West 57th Street, New York, New York | 10019 | |
| (Address of Principal Executive Offices) | (Zip Code) |
212-790-0000
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
As previously disclosed, Och-Ziff Capital Management Group LLC (the “Company”) determined to change its tax classification from a partnership to a corporation, effective April 1, 2019 (the “Corporate Classification Change”). On April 1, 2019, the Company completed the Corporate Classification Change.
In connection with the Corporate Classification Change, on April 1, 2019, Och-Ziff Holding Corporation and Och-Ziff Holding LLC, each of which is a wholly owned subsidiary of the Company, entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Och-Ziff Holding LLC merged with and into Och-Ziff Holding Corporation, with Och-Ziff Holding Corporation as the surviving entity (the “Merger”). In the Merger, (i) each limited liability company interest of Och-Ziff Holding LLC was canceled and retired and ceased to exist, and no consideration was delivered in exchange therefor, and (ii) each issued and outstanding share of common stock of Och-Ziff Holding Corporation remained outstanding, unaffected by the Merger, and no additional shares of common stock of Och-Ziff Holding Corporation were issued in connection with the Merger.
In connection with the Merger, on April 1, 2019, the Company and OZ Advisors II LP (“OZA II”), a wholly owned subsidiary of the Company, entered into an amendment (the “Amendment”) to OZA II’s Unit Designation of the Preferences and Relative, Participating, Optional, and Other Special Rights, Powers and Duties of Class A Cumulative Preferred Units, dated February 7, 2019, to reflect that Och-Ziff Holding Corporation became the general partner of OZA II as a result of the Merger.
The foregoing description of the Merger Agreement and the Amendment does not purport to be complete and is qualified in its entirety by reference to Exhibit 2.1 and Exhibit 4.1 to this Current Report on Form 8-K, respectively, which are incorporated herein by reference.
Following the Corporate Classification Change, dividends will be reported to the Company’s Class A shareholders on Form 1099-DIV. The Schedule K-1s that the Company issued previously as a partnership will no longer be issued for periods following the Corporate Classification Change.
Item 9.01. Financial Statements and Exhibits.
| (d) |
Exhibits |
Forward-Looking Statements
The information contained in this Current Report on Form 8-K may contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, that reflect the Company’s current views with respect to, among other things, the transactions described herein; its effect on the Company, including on the Company’s cash flows, balance sheet and earnings; the Company’s ability to create value; the Company’s growth prospects; the anticipated benefits of changing the Company’s tax classification from a partnership to a corporation and subsequently converting from a limited liability company into a corporation and the Company’s ability to complete the Company’s conversion from a limited liability company into a corporation on a timely basis or at all; and future events and financial performance. The Company generally identifies forward-looking statements by terminology such as “outlook,” “believe,” “expect,” “potential,” “continue,” “may,” “will,” “should,” “could,” “seek,” “approximately,” “predict,” “intend,” “plan,” “estimate,” “anticipate,” “opportunity,” “comfortable,” “assume,” “remain,” “maintain,” “sustain,” “achieve,” “see,” “think,” “position” or the negative version of those words or other comparable words.
Any forward-looking statements contained in this Current Report on Form 8-K are based upon historical information and on the Company’s current plans, estimates and expectations. The inclusion of this or other forward-looking information should not be regarded as a representation by the Company or any other person that the future plans, estimates or expectations contemplated by the Company will be achieved.
The Company cautions that forward-looking statements are subject to numerous assumptions, estimates, risks and uncertainties, including but not limited to the following: global economic, business, market and geopolitical conditions; U.S. and foreign regulatory developments relating to, among other things, financial institutions and markets, government oversight and fiscal and tax policy; the outcome of third-party litigation involving the Company; the consequences of the Foreign Corrupt Practices Act settlements with the SEC and the U.S. Department of Justice; and whether the Company realizes all or any of the anticipated benefits from the transactions described herein; whether the transactions described herein result in any increased or unforeseen costs, indemnification obligations or have an impact on the Company’s ability to retain or compete for professional talent or investor capital; conditions impacting the alternative asset management industry; the Company’s ability to retain existing investor capital; the Company’s ability to successfully compete for fund investors, assets, professional talent and investment opportunities; the Company’s ability to retain its active executive managing directors, managing directors and other investment professionals; the Company’s successful formulation and execution of its business and growth strategies; the Company’s ability to appropriately manage conflicts of interest and tax and other regulatory factors relevant to the Company’s business; and assumptions relating to the Company’s operations, investment performance, financial results, financial condition, business prospects, growth strategy and liquidity.
If one or more of these or other risks or uncertainties materialize, or if the Company’s assumptions or estimates prove to be incorrect, the Company’s actual results may vary materially from those indicated in these statements. These factors are not and should not be construed as exhaustive and should be read in conjunction with the other cautionary statements and risks that are included in the Company’s filings with the SEC, including but not limited to the Company’s Annual Report on Form 10-K for the year ended December 31, 2018, dated March 15, 2019, as well as may be updated from time to time in the Company’s other SEC filings. There may be additional risks, uncertainties and factors that the Company does not currently view as material or that are not known. The Company does not undertake to update any forward-looking statement because of new information, future developments or otherwise.
This Current Report on Form 8-K does not constitute an offer of any Company fund.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC (Registrant) | ||
| By: |
/s/ Thomas M. Sipp |
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| Thomas M. Sipp | ||
| Chief Financial Officer and | ||
| Executive Managing Director | ||
April 2, 2019
Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “ Merger Agreement ”), dated as of April 1, 2019, is made by and between Och-Ziff Holding Corporation, a Delaware corporation (“ Oz Corp ”), and Och-Ziff Holding LLC, a Delaware limited liability company (“ Oz Holding ”). Oz Corp and Oz Holding are hereinafter sometimes collectively referred to as the “ Constituent Entities .”
RECITALS
WHEREAS, Oz Corp and Oz Holding are direct, wholly owned subsidiaries of Och-Ziff Capital Management Group LLC, a Delaware limited liability company (“ Parent ”);
WHEREAS, on December 5, 2018, Parent and certain of its subsidiaries, including the Constituent Entities, and Daniel Och entered into a letter agreement providing for the implementation of certain transactions, as set forth in the term sheet attached thereto (the letter agreement, together with the term sheet attached thereto, each as amended, the “ Letter Agreement ”);
WHEREAS, the Letter Agreement provided for, among other things, the preparation and execution of further agreements (the “ Implementing Agreements ”) and other actions to implement the transactions contemplated by the Letter Agreement (collectively, the “ Recapitalization ”);
WHEREAS, in connection with the Recapitalization, this Merger Agreement is being entered into to simplify Parent’s organizational structure;
WHEREAS, Parent and the Constituent Entities intend for the Merger to qualify as a transfer described in Section 351(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”);
WHEREAS, each of the Board of Directors of Parent and the Conflicts Committee (as defined in the Second Amended and Restated Limited Liability Company Agreement of Parent, dated as of November 13, 2007, as amended) have approved (i) the entry into this Merger Agreement by Oz Corp and Oz Holding and (ii) the terms and conditions of this Merger Agreement and the transactions contemplated hereby;
WHEREAS, pursuant to Section 18-209 of the Limited Liability Company Act of the State of Delaware (the “ DLLCA ”) and the Third Amended and Restated Operating Agreement of Oz Holding, Parent, as the sole member of Oz Holding, and the Board of Managers of Oz Holding have each approved the terms and conditions of this Merger Agreement and the transactions contemplated hereby; and
WHEREAS, pursuant to Sections 251 and 264 of the General Corporation Law of the State of Delaware (the “ DGCL ”) and the Amended and Restated By-Laws of Oz Corp, Parent, as the sole stockholder of Oz Corp, and the Board of Directors of Oz Corp have each approved the terms and conditions of this Merger Agreement and the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for the purpose of merging Oz Holding with and into Oz Corp, with Oz Corp surviving the merger (the “ Merger ”), and setting forth certain terms and conditions of the Merger and the mode of carrying the same into effect, Oz Corp and Oz Holding hereby agree as follows:
ARTICLE 1. THE MERGER
Section 1.1 Merger . Subject to the terms and conditions set forth herein, and in accordance with Section 18-209 of the DLLCA and Sections 251 and 264 of the DGCL, Oz Holding shall be merged with and into Oz Corp. Oz Corp shall be, and is herein referred to as, the “ Surviving Entity .” The Merger shall become effective at the time and on the date of the filing of the Certificate of Merger relating to the Merger with the Secretary of State of the State of Delaware (the “ Effective Time ”).
Section 1.2 Effect of Merger . At the Effective Time, Oz Holding shall be merged with and into Oz Corp and the separate existence of Oz Holding shall cease. The Merger shall have the effects set forth in Section 18-209 of the DLLCA and Section 264 of the DGCL. Without limiting the generality of the foregoing, from and after the Effective Time, the Surviving Entity shall possess all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority and be subject to all of the debts, liabilities, obligations, restrictions, disabilities and duties of Oz Holding, all as provided under applicable law.
Section 1.3 Certificate of Incorporation and By-Laws . The Certificate of Incorporation of Oz Corp as in effect immediately prior to the Effective Time shall continue to be the Certificate of Incorporation of the Surviving Entity. The Amended and Restated By-Laws of Oz Corp as in effect immediately prior to the Effective Time shall continue to be the By-Laws of the Surviving Entity.
Section 1.4 Officers and Directors . The officers and directors of Oz Corp immediately prior to the Effective Time shall be the initial officers and directors, respectively, of the Surviving Entity until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Certificate of Incorporation and By-Laws of the Surviving Entity.
Section 1.5 Tax Treatment . Each of Parent and the Constituent Entities (i) agrees to treat, for U.S. federal (and, to the extent permissible, state and local) income tax purposes, the Merger as a transfer of Parent’s interests in OZ Advisors II LP to the capital of Oz Corp pursuant to Section 351(a) of the Code, and (ii) shall not take any action, or fail to take any action, which action or failure to act would be inconsistent with such tax treatment.
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ARTICLE 2. SURVIVING ENTITY INTERESTS
Section 2.1 Succession . At the Effective Time, the separate limited liability company existence of Oz Holding shall cease. At the Effective Time, (a) all the rights, privileges, powers and franchises of a public and private nature of each of the Constituent Entities, subject to all the restrictions, disabilities and duties of each of the Constituent Entities; (b) all assets and real, personal and mixed property belonging to each of the Constituent Entities; and (c) all debts due to each of the Constituent Entities on whatever account, including stock subscriptions and all other things in action, shall succeed to, be vested in and become the property of the Surviving Entity without any further act or deed as they were of the respective Constituent Entities. The title to any real estate vested by deed or otherwise and any other asset in either of such Constituent Entities shall not revert or be in any way impaired by reason of the Merger, but all rights of creditors and all liens upon any property of Oz Holding shall be preserved unimpaired. To the extent permitted by law, any claim existing or action or proceeding pending by or against either of the Constituent Entities may be prosecuted as if the Merger had not taken place. All debts, liabilities and duties of the respective Constituent Entities shall thenceforth attach to the Surviving Entity and may be enforced against it to the same extent as if such debts, liabilities and duties had been incurred or contracted by it. All corporate acts, plans, policies, agreements, arrangements, approvals and authorizations of Oz Holding and its members, officers and agents which were valid and effective immediately prior to the Effective Time shall be taken for all purposes as the acts, plans, policies, agreements, arrangements, approvals and authorizations of the Surviving Entity and shall be as effective and binding thereon as the same were with respect to Oz Holding.
Section 2.2 Further Assurances . From time to time, as and when required by the Surviving Entity or by its successors and assigns, there shall be executed and delivered on behalf of Oz Holding such deeds and other instruments, and there shall be taken or caused to be taken by it all such further and other action as shall be appropriate or necessary, in order to vest, perfect or confirm, of record or otherwise, in the Surviving Entity the title to and possession of all property, interests, assets, rights, privileges, immunities, powers, franchises and authority of Oz Holding and otherwise to carry out the purposes of this Merger Agreement, and the officers of the Surviving Entity are fully authorized in the name and on behalf of Oz Holding or otherwise to take any and all such action to execute and deliver any and all such deeds and other instruments.
Section 2.3 Conversion of Interests . At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, (a) each limited liability company interest of Oz Holding issued and outstanding immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor, and (b) each share of common stock of Oz Corp issued and outstanding immediately prior to the Effective Time shall remain outstanding, unaffected by the Merger. No additional shares of common stock of Oz Corp shall be issued in connection with the Merger.
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Section 2.4 No Appraisal Rights . In accordance with Section 18-210 of the DLLCA, no appraisal rights shall be available to holders of limited liability company interests of Oz Holding in connection with the Merger.
ARTICLE 3. AMENDMENT
Section 3.1 Amendment and Modification . This Merger Agreement may be amended or modified at any time by the parties hereto, but only pursuant to an instrument in writing signed by the parties hereto and only in accordance with applicable provisions of the laws of the State of Delaware.
ARTICLE 4. MISCELLANEOUS PROVISIONS
Section 4.1 Entire Agreement; Assignment . This Merger Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof.
Section 4.2 Termination . This Merger Agreement may be terminated and the Merger and other transactions herein provided for abandoned at any time prior to the Effective Time, if the Board of Directors of Oz Corp or the Board of Managers of Oz Holding determines that the consummation of the transactions provided for herein would not, for any reason, be in the best interests of the Constituent Entities and their respective equity holders.
Section 4.3 Validity . The invalidity or unenforceability of any term or provision of this Merger Agreement in any situation or jurisdiction shall not affect the validity or enforceability of the other terms or provisions in any other situation or in any other jurisdiction.
Section 4.4 Counterparts . This Merger Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 4.5 Descriptive Headings . The descriptive headings herein are inserted for convenience of reference only and shall in no way be construed to define, limit, describe, explain, modify, amplify or add to the interpretation, construction or meaning of any provision of, or scope or intent of, this Merger Agreement or in any way affect this Merger Agreement.
Section 4.6 Governing Law . This Merger Agreement, including all matters of construction, validity, interpretation, performance and enforceability and any action, proceeding or counterclaim (whether in contract, tort, equity or otherwise) directly or indirectly arising out of or relating to this Merger Agreement or any of the transactions contemplated by this Merger Agreement or the negotiation, administration, performance and enforcement hereof, shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
[ Signature Page Follows .]
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IN WITNESS WHEREOF, Oz Corp and Oz Holding have caused this Merger Agreement to be signed by their respective duly authorized persons as of the date first above written.
| OCH-ZIFF HOLDING CORPORATION | ||
| By: |
/s/ Wayne Cohen |
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| Name: Wayne Cohen | ||
| Title: President and Chief Operating Officer | ||
| OCH-ZIFF HOLDING LLC | ||
| By: |
/s/ Wayne Cohen |
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| Name: Wayne Cohen | ||
| Title: President and Chief Operating Officer | ||
[Signature Page to Agreement and Plan of Merger of Och-Ziff Holding Corporation and Och-Ziff Holding LLC]
Exhibit 4.1
EXECUTION VERSION
AMENDMENT TO OZ ADVISORS II LP UNIT DESIGNATION OF THE PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL, AND OTHER SPECIAL RIGHTS, POWERS AND DUTIES OF CLASS A CUMULATIVE PREFERRED UNITS
This AMENDMENT TO OZ ADVISORS II LP UNIT DESIGNATION OF THE PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL, AND OTHER SPECIAL RIGHTS, POWERS AND DUTIES OF CLASS A CUMULATIVE PREFERRED UNITS, dated as of April 1, 2019 (the “ Amendment ”), is entered into by and between Och-Ziff Capital Management Group LLC, a Delaware limited liability company (the “ Company ”), and OZ Advisors II LP, a Delaware limited partnership (the “ Partnership ”). Capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings ascribed to them in the Unit Designation.
WHEREAS , the Company and the Partnership are parties to that certain OZ Advisors II LP Unit Designation of the Preferences and Relative, Participating, Optional, and Other Special Rights, Powers and Duties of Class A Cumulative Preferred Units, dated as of February 7, 2019 (the “ Unit Designation ”);
WHEREAS , the Company owns all of the issued and outstanding equity interests in (i) Och-Ziff Holding Corporation, a Delaware corporation (“ Oz Corp ”), and (ii) Och-Ziff Holding LLC, a Delaware limited liability company (“ Oz Holding ”);
WHEREAS , Oz Holding is the general partner of the Partnership;
WHEREAS , in connection with simplifying the Company’s organizational structure and changing the Company’s tax classification from a partnership to a corporation, Oz Corp and Oz Holding have entered into an Agreement and Plan of Merger, pursuant to which Oz Holding will merge with and into Oz Corp (the “ Merger ”), with Oz Corp surviving the Merger;
WHEREAS , in connection with the Merger, Oz Corp will become the general partner of the Partnership; and
WHEREAS , the Company and the Partnership desire to amend the Unit Designation to reflect that Oz Corp will become the general partner of the Partnership, effective as of the effective time of the Merger.
NOW, THEREFORE , in consideration of the foregoing and of the mutual covenants and agreements contained in the Unit Designation and herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. The definition of “General Partner” in the preamble of the Unit Designation is hereby amended by replacing the words “Och-Ziff Holding LLC, a Delaware limited liability company” with “Och-Ziff Holding Corporation, a Delaware corporation”, effective as of the effective time of the Merger.
2. This Amendment shall only serve to amend and modify the Unit Designation, in accordance with Section 11 of the Unit Designation, to the extent specifically provided herein. All terms, conditions, provisions and references of and to the Unit Designation which are not specifically modified and/or amended herein shall remain in full force and effect and shall not be altered by any provisions herein contained. On and after the date of this Amendment, each reference in the Unit Designation to “this Unit Designation”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the Unit Designation in any other agreements, documents or instruments executed and delivered pursuant to the Unit Designation, shall mean and be a reference to the Unit Designation, as amended by this Amendment; provided that references to “the date of this Unit Designation” and other similar references in the Unit Designation shall continue to refer to the date of the Unit Designation and not to the date of this Amendment.
3. This Amendment shall be subject to the general provisions contained in Sections 11 and 16-17 of the Unit Designation, which are incorporated by reference herein, in each case, mutatis mutandis .
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first above written.
| OZ ADVISORS II LP | ||
| By: | OCH-ZIFF HOLDING LLC, | |
| its general partner | ||
| By: |
/S/ Wayne N. Cohen |
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| Name: | Wayne N. Cohen | |
| Title: | President and Chief Operating Officer | |
| OCH-ZIFF CAPITAL MANAGEMENT GROUP LLC | ||
| By: |
/S/ Wayne N. Cohen |
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| Name: | Wayne N. Cohen | |
| Title: | President and Chief Operating Officer | |
[Signature Page to the Amendment to Unit Designation]