Re: Side Letter Agreement - Veredus / Non-Compete Amendment
EXHIBIT
10.2
April
20,
2006
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx
Fax:
(000) 000-0000
|
Re:
|
Side
Letter Agreement - Veredus / Non-Compete
Amendment
|
Dear
Xx.
Xxxxx:
Reference
is made to that certain Asset Purchase Agreement (the “Purchase Agreement”),
dated as of April 20, 2006 (the “Effective Date”), made by and among Highbury
Financial Inc., a Delaware corporation, Aston Asset Management LLC, a Delaware
limited liability company (collectively, the “Purchaser”), ABN AMRO Asset
Management Holdings, Inc., a Delaware corporation , ABN AMRO Investment Fund
Services, Inc., a Delaware corporation , ABN AMRO Asset Management, Inc., an
Illinois corporation , Montag & Xxxxxxxx, Inc., a Georgia corporation ,
Tamro Capital Partners LLC, a Delaware limited liability company , Veredus
Asset
Management LLC, a Kentucky limited liability company (“Veredus”), and River Road
Asset Management, LLC, a Delaware limited liability company . Capitalized terms
used but not otherwise defined herein shall have the meaning ascribed to such
term in the Purchase Agreement.
As
a
condition to Veredus entering into the Purchase Agreement, Purchaser and Veredus
hereby agree as follows:
1. Notwithstanding
Section 5.4 of the Purchase Agreement to the contrary, Veredus shall not be
restricted by such Section 5.4 from engaging in any and all activities,
business, investment or otherwise, provided that Veredus shall not, directly
or
indirectly,: (i) advise, sub-advise, sponsor, or own a Mutual Fund managed
in a
similar style to the Veredus Aggressive Growth Fund; or (ii) use or permit
the
use of any Retained Names & Marks with respect to any Mutual Fund (other
than in connection with the Target Funds) until the earlier of (x) the fifth
anniversary of the Closing Date and (y) the date on which Veredus ceases to
sub-advise all Target Funds which it had previously advised as the result of
its
termination as a subadvisor by the Purchaser or the board of trustees of such
Target Fund without reasonable cause.
2. Notwithstanding
Section 5.5 of the Purchase Agreement, Purchaser agrees not to solicit or hire
any employees of Veredus during the period commencing on the date hereof and
ending on the earlier of the fifth anniversary of the Closing Date or the
termination of the Purchase Agreement in accordance with its terms.
3. Veredus
shall not be subject to the obligations of Section 4.13 of the Purchase
Agreement.
4. Notwithstanding
Sections 4.10 and 5.6(a), Veredus, its Affiliates, owners, directors and
officers shall be permitted to purchase or sell an interest in Veredus (a
“Veredus Transaction”), regardless of whether such sale or purchase results, or
is deemed to result, in a “change of control” of Veredus and whether structured
as a sale or transfer of membership interests, a merger or otherwise; provided
that (x) the consummation of a Veredus Transaction does not (i) result in the
transfer (other than a deemed transfer) of any of the Acquired Assets, (ii)
result in the termination of any Investment Subadvisory Agreement to which
Veredus is a party or otherwise result in an inability of Veredus to serve
as an
adviser of the Target Funds which it advises, at any time prior the first to
occur of the Closing and termination of the Purchase Agreement or a sub-adviser
of any such Target Funds following the Closing or (iii) otherwise result in
the
inability of Veredus (or, to the extent applicable, the acquiring party) to
complete the transactions contemplated by, and comply with the provisions of
the
Purchase Agreement and the Investment Subadvisory Agreement between Purchaser
and Veredus and (y) the acquiring party in the Veredus Transaction agrees in
writing with Purchaser that Veredus (and to the extent applicable, such
acquiring party) shall continue to be bound by the Purchase Agreement.
Furthermore, notwithstanding the provisions of Section 5.6(a), except as
otherwise required by law, the consummation of a Veredus Transaction which
complies with the provisos set forth in the preceding sentence shall not
constitute a basis for termination of the Investment Subadvisory Agreement
to
which it will be a party or a breach thereunder.
This
letter agreement shall constitute the binding and enforceable obligation of
Purchaser and Veredus and is not superseded or replaced by the terms of the
Purchase Agreement or any other agreement entered into in connection with the
Purchase Agreement. The provisions in this letter agreement shall be effective
upon the Effective Date and if the Closing does not occur for any reason, or
the
Purchase Agreement is terminated in accordance with its terms, this letter
agreement shall also be automatically terminated contemporaneously therewith,
and shall be null and void and of no legal effect, such that neither party
shall
have any obligations hereunder. This letter agreement shall be binding upon
the
parties to this letter agreement and their successors and assigns; provided,
that this letter agreement shall automatically terminate in the event that
(i)
any other Seller or Affiliate of any other Seller becomes the successor to
Veredus (other than a direct or indirect wholly owned subsidiary of Veredus),
(ii) any other Seller or any Affiliate of any other Seller becomes the owner
of
in excess of 50% of the outstanding equity interests in Veredus or (iii) in
the
event of any assignment hereof to any other Seller or Affiliate of any other
Seller.
This
letter agreement shall be governed by the laws of the State of New York, without
regard to its conflicts of law rules.
If
the
foregoing accurately reflects the agreement, please execute one copy of this
letter agreement and return it to us, whereupon this letter agreement shall
become a binding agreement between the parties.
VEREDUS
ASSET MANAGEMENT LLC
By:
/s/ Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Vice President and Chief Operating Officer
Acknowledged
and Accepted:
ASTON
ASSET MANAGEMENT LLC
Its:
Managing Member
By:
/s/ Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
President and Chief Executive Officer
By:
/s/ Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
President and Chief Executive Officer
Side
Letter - Veredus / Non-Compete
