Contract
Exhibit
10.19
PLACEMENT UNIT
PURCHASE AGREEMENT (this
“Agreement”) made
as
of this ___ day of December, 2005 among Highbury Financial Inc., a Delaware
corporation (the “Company”), ThinkEquity Partners LLC (“TEP”) as representative
of the underwriters of the IPO (solely for the purposes of Sections 5 and
8
hereof), and the undersigned (the “Purchasers”).
WHEREAS,
the Company has filed with the Securities and Exchange Commission (“SEC”) a
registration statement on Form S-1, as amended (File No. 333-127272) (the
“Registration Statement”), in connection with the Company's initial public
offering (the “IPO”) of up to 5,833,333 units, each unit (“Unit”) consisting of
one share of the Company's common stock, $.0001 par value (the “Common Stock”),
and (ii) two warrants (the “Warrants”), each Warrant to purchase one share of
Common Stock; and
WHEREAS,
the Company desires to sell in a private placement to the Purchasers (the
“Placement”) an aggregate of 166,667 units (the “Placement Units”) substantially
identical to the Units being issued in the IPO pursuant to the terms and
conditions hereof and as set forth in the Registration Statement, except
that
the Placement Units, Common Stock and Warrants to be issued in the Placement
shall not be registered under the Securities Act of 1933, as amended (the
“Securities Act”);
WHEREAS,
each Purchaser desires to acquire the number of Placement Units set forth
opposite his name on Schedule A hereto;
WHEREAS,
the Warrants included in the Placement Units shall be governed by the Warrant
Agreement filed as an exhibit to the Registration Statement; and
WHEREAS,
the Purchasers are entitled to registration rights with respect to the Common
Stock and the Warrants comprising the Placement Units and the Common Stock
underlying such Warrants (collectively, the “Registrable Securities”) on the
terms set forth in this agreement.
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Purchase
of Units.
The
Purchasers hereby agree, directly or through nominees, to purchase an aggregate
of 166,667 Placement Units at a purchase price of $6.00 per Placement Unit,
or
an aggregate of $1,000,002 (the “Purchase Price”). Such purchases shall be in
the names and amounts set forth on Schedule A hereto.
2. Closing.
The
closing of the purchase and sale of the Placement Units (the “Closing”) will
take place at such time and place as the parties may agree (the “Closing Date”),
but in no event later than the date on which the SEC declares the Registration
Statement effective (the “Effective Date”). On the Effective Date, the
Purchasers shall pay the Purchase Price by wire transfer of funds to an account
maintained by the Company. Immediately prior to the closing of the IPO, the
Company shall deposit $1,000,002 of the Purchase Price into the trust account
described in the Registration Statement (the “Trust Account”). The certificates
for the Common Stock and Warrants comprising the Placement Units shall be
delivered to the Purchasers promptly after the closing of the IPO.
3. Voting
of Shares.
If the
Company solicits approval of its stockholders of a Business Combination,
the
Purchasers shall vote all of the shares of the Common Stock acquired by the
Purchasers (i) pursuant to this Agreement, (ii) in the IPO and (iii) in the
aftermarket in accordance with the majority of the shares of Common Stock
voted
by the “public stockholders” (as defined in the Registration Statement) and
therefore waive any redemption rights they might have with respect to certain
of
such shares. As used herein, a “Business Combination” shall mean an acquisition
or the acquisition of control of, through a merger, capital stock exchange,
asset acquisition, stock purchase or other similar business combination,
of one
or more businesses in the financial services industry selected by the
Company.
4. Waiver
of Liquidation Distributions.
In
connection with the Placement Units purchased pursuant to this Agreement,
the
Purchasers hereby waive any and all right, title, interest or claim of any
kind
in or to any liquidating distributions by the Company in the event of a
liquidation of the Company upon the Company's failure to timely complete
a
Business Combination. For purposes of clarity, any shares of Common Stock
purchased in the IPO or the aftermarket by the Purchasers shall be eligible
to
receive any liquidating distributions by the Company.
5. Lock-Up
Agreement.
The
Purchasers shall not, without the prior written consent of the Company, TEP
and
EarlyBirdCapital, Inc., (i) sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of
or
agree to dispose of, directly or indirectly, or file (or participate in the
filing of) a registration statement with the SEC in respect of, or establish
or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act
of
1934, as amended, and the rules and regulations of the SEC promulgated
thereunder (the “Exchange Act”) with respect to, any Placement Units and the
shares and warrants comprising the Placement Units, or any securities
convertible into or exercisable or exchangeable for shares, or warrants or
other
rights to purchase shares or any such securities, (ii) enter into any swap
or
other arrangement that transfers to another, in whole or in part, any of
the
economic consequences of ownership of Placement Units or any securities
convertible into or exercisable or exchangeable for shares, or warrants or
other
rights to purchase shares or any such
securities,
whether any such transaction is to be settled by delivery of shares or such
other securities, whether any such transaction is to be settled by delivery
of
shares or such other securities, in cash or otherwise, or (iii) publicly
announce an intention to effect any transaction specified in clause (i) or
(ii)
until after the consummation of a Business Combination. In order to enforce
this
covenant, the undersigned agrees, if requested by TEP, to deposit the Placement
Units in an account to be established at TEP.
6. Representations
and Warranties of the Purchasers.
Each
Purchaser hereby represents and warrants to the Company that:
6.1 The
Purchaser is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act.
6.2 The
Placement Units, Common Stock and Warrants are being acquired for the
Purchaser's own account, only for investment purposes and not with a view
to, or
for resale in connection with, any distribution or public offering thereof
within the meaning of the Securities Act.
6.3 The
Purchaser has the full right, power and authority to enter into this Agreement
and this Agreement is a valid and legally binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
7. Registration
Rights.
7.1 Demand
Registration.
At any
time and from time to time on or after the date of the consummation of a
Business Combination, the Purchasers or their transferees holding a
majority-in-interest of the Registrable Securities may make a written demand
for
registration under the Securities Act of all or part of their Registrable
Securities (a “Demand Registration”). Any demand for a Demand Registration shall
specify the number of Registrable Securities proposed to be sold and the
intended method(s) of distribution thereof. The Company will notify all holders
of Registrable Securities of the demand, and each holder of Registrable
Securities who wishes to include all or a portion of such holder's Registrable
Securities in the Demand Registration (each such holder including shares
of
Registrable Securities in such registration, a “Demanding Holder”) shall so
notify the Company within fifteen (15) days after the receipt by the holder
of
the notice from the Company. Upon any such request, the Demanding Holders
shall
be entitled to have their Registrable Securities included in the Demand
Registration.
The
Company shall, as expeditiously as possible and in any event within sixty
(60)
days after receipt of a request for a Demand, prepare and file with the SEC
a
Registration Statement on any form for which the Company then qualifies or
which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of all Registrable Securities to be registered thereunder in
accordance with the intended method(s) of distribution thereof, and shall
use
its best efforts to cause such Registration Statement to become effective
as
promptly as practicable, but in no event prior to the consummation of the
Business Combination.
The
Company shall not be obligated to effect more than two Demand Registrations
in
respect of Registrable Securities.
7.2 “Piggyback”
Registration Rights.
Subject
to the last sentence of this Section 7.2, at any time after a Business
Combination, if the Company shall determine to proceed with the actual
preparation and filing of a new registration statement under the Securities
Act
in connection with the proposed offer and sale of any of its securities by
it or
any of its security holders (other than a registration statement on Form
X-0,
X-0 or other limited purpose form), the Company will give written notice
of its
determination to the Purchasers or their nominees. Upon the written request
from
a majority-in-interest of the Purchasers, within 15 days after receipt of
any
such notice from the Company, the Company will, except as herein provided,
cause
all of the Registrable Securities covered by such request (the “Requested
Stock”) held by the Purchasers making such request (the “Requesting Holders”) to
be included in such registration statement (each, a “Piggy-Back Registration”),
all to the extent requisite to permit the sale or other disposition by the
prospective seller or sellers of the Requested Stock; provided, further,
that
nothing herein shall prevent the Company from, at any time, abandoning or
delaying any registration. If any registration pursuant to this Section 7.2
shall be underwritten in whole or in part, the Company may require that the
Requested Stock be included in the underwriting on the same terms and conditions
as the securities otherwise being sold through the underwriters. In such
event,
the Requesting Holders shall, if requested by the underwriters, execute an
underwriting agreement containing customary representations and warranties
by
selling stockholders and a lock-up on Registrable Securities not being sold.
If
in the good faith judgment of the managing underwriter of such public offering
the inclusion of all of the Requested Stock would reduce the number of shares
to
be offered by the Company or interfere with the successful marketing of the
shares of stock offered by the Company, the number of shares of Requested
Stock
otherwise to be included in the underwritten public offering may be reduced
pro
rata (by number of shares) among the Requesting Holders and all other holders
of
registration rights who have requested inclusion of their securities or excluded
in their entirety if so required by the underwriter. To the extent only a
portion of the Requested Stock is included in the underwritten public offering,
thoseshares of Requested Stock which are thus excluded from the underwritten
public offering and any other securities of the Company held by such holders
shall be withheld from the market by the Holders thereof for a period, not
to
exceed 90 days, which the managing underwriter reasonably determines is
necessary in order to effect the underwritten public offering. At such time
as
the provisions of the registration rights agreement filed as an exhibit to
the
Registration Statement covering the shares of Common Stock acquired by the
Purchasers prior to the IPO may be exercised, the exercise and procedural
provisions of such agreement, rather than the provisions of Sections 7.2,
7.3
and 7.4 hereof, shall govern the Registrable Securities with respect to
Piggy-Back Registrations.
7.3 Registration
Procedures. To the extent required by Sections 7.1 or 7.2, the Company
will:
(a) prepare
and file with the SEC a registration statement with respect to such securities,
and use its best efforts to cause such registration statement to become and
remain effective until the earlier of the date on which all of the Registrable
Securities included in the registration statement have been disposed of in
accordance with the intended method(s) of distribution set forth in such
Registration Statement or three years from the effective date;
(b) prepare
and file with the SEC such amendments to such registration statement and
supplements to the prospectus contained therein as may be necessary to keep
such
registration statement effective until the earlier of the date on which all
of
the Registrable Securities included in the registration statement have been
disposed of in accordance with the intended method(s) of distribution set
forth
in such Registration Statement or three years from the effective
date;
(c) furnish
to the holders participating in such registration and to the underwriters
of the
securities being registered such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such other documents
as
such underwriters may reasonably request in order to facilitate the public
offering of such securities;
(d) use
its best efforts to register or qualify the securities covered by such
registration statement under such state securities or blue sky laws of such
jurisdictions as the holders may reasonably request in writing within 20
days
following the original filing of such registration statement, except that
the
Company shall not for any purpose be required to execute a general consent
to
service of process or to qualify to do business as a foreign corporation
in any
jurisdiction wherein it is not so qualified;
(e) notify
the holders, promptly after it shall receive notice thereof, of the time
when
such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been
filed;
(f) notify
the holders promptly of any request by the SEC for the amending or supplementing
of such registration statement or prospectus or for additional
information;
(g) prepare
and promptly file with the SEC and promptly notify such holders of the filing
of
such amendment or supplement to such registration statement or prospectus
as may
be necessary to correct any statements or omissions if, at the time when
a
prospectus relating to such securities is required to be delivered under
the
Securities Act, any event shall have occurred as the result of which any
such
prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary
to
make the statements therein, in the light of the circumstances in which they
were made, not misleading; and
(h) advise
the holders, promptly after it shall receive notice or obtain knowledge thereof,
of the issuance of any stop order by the SEC suspending the effectiveness
of
such registration statement or the initiation or threatening of any proceeding
for that purpose and promptly use its best efforts to prevent the issuance
of
any stop order or to obtain its withdrawal if such stop order should be
issued.
The
Purchasers shall cooperate with the Company in providing the information
necessary to effect the registration of the Registrable Securities, including
completion of customary questionnaires.
7.4 Expenses.
The
Company shall bear all costs and expenses incurred in connection with any
Demand
Registration pursuant to Section 7.1, any Piggy-Back Registration pursuant
to
Section 7.2, and all expenses incurred in performing or complying with its
other
obligations under this Agreement, whether or not the Registration Statement
becomes effective, including, without limitation: (i) all registration and
filing fees; (ii) fees and expenses of compliance with securities or “blue sky”
laws (including fees and disbursements of counsel in connection with blue
sky
qualifications of the Registrable Securities); (iii) printing expenses; (iv)
the
Company's internal expenses (including, without limitation, all salaries
and
expenses of its officers and employees); (v) the fees and expenses incurred
in
connection with the exchange listing of the Registrable Securities; (vi)
National Association of Securities Dealers, Inc. fees; (vii) fees and
disbursements of counsel for the Company and fees and expenses for independent
certified public accountants retained by the Company (including the expenses
or
costs associated with the delivery of any opinions or comfort letters); (viii)
the fees and expenses of any special experts retained by the Company in
connection with such registration and (ix) the fees and expenses of one legal
counsel selected by the holders of a majority-in-interest of the Registrable
Securities included in such registration. The Company shall have no obligation
to pay any underwriting discounts or selling commissions attributable to
the
Registrable Securities being sold by the holders thereof, which underwriting
discounts or selling commissions shall be borne by such holders. Additionally,
in an underwritten offering, all selling shareholders and the Company shall
bear
the expenses of the underwriter pro rata in proportion to the respective
amount
of shares each is selling in such offering.
8.
Waiver of Claims; Indemnification The
Purchasers hereby waive any and all rights to assert any present or future
claims, including any right of rescission, against the Company, TEP or the
other
underwriters in the IPO with respect to their purchase of the Placement Units,
and each Purchaser agrees jointly and severally to indemnify and hold the
Company, TEP and the other underwriters in the IPO harmless from all losses,
damages or expenses that relate to claims or proceedings brought against
the
Company, TEP or such other underwriters by any Purchaser of the Placement
Units
or their transferees, heirs, assigns or any subsequent holders of the Placement
Units.
9. Counterparts;
Facsimile.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same instrument. This Agreement or any counterpart
may be
executed via facsimile transmission, and any such executed facsimile copy
shall
be treated as an original.
10.
Governing Law.
This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of New York. Each of the
parties hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New York or the United States District Court for
the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives
any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the __
day
of December, 2005.
|
|
A
Delaware Corporation
By:
________________________________
Name:
Xxxxxxx X. Xxxxx
Title:
President and Chief Executive Officer
PURCHASERS:
____________________________________
R.
Xxxxx Xxxxxxx
____________________________________
Xxxxxxx
X. Xxxxx
____________________________________
X.
Xxxxxxx Forth
BROAD
HOLLOW LLC
____________________________________
By:
Name:
THE
XXXXXXX XXXXX TRUST
____________________________________
By:
THE
XXXXX XXXXXX XXXXX TRUST
____________________________________
By:
THINKEQUITY
PARTNERS LLC
(SOLELY FOR THE PURPOSES OF SECTIONS 5 and 8 HEREOF) AS
REPRESENTATIVE OF THE UNDERWRITERS
By:___________________________________ Name:
Title:
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SCHEDULE
A
|
R.
Xxxxx Xxxxxxx
|
16,667
|
|||
|
Xxxxxxx
X. Xxxxx
|
50,000
|
|||
|
X.
Xxxxxxx Forth
|
8,333
|
|||
|
Broad
Hollow LLC
|
75,000
|
|||
|
The
Xxxxxxx Xxxxx Trust
|
8,333
|
|||
|
The
Xxxxx Xxxxxx Xxxxx Trust
|
8,334
|
