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.
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 Parents 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.