BERKSHIRE CAPITAL SECURITIES LLC OFFICE SERVICE AGREEMENT
Exhibit
10.11
BERKSHIRE
CAPITAL SECURITIES LLC
This
Agreement is dated August 1, 2005 and is entered into between Berkshire
Capital Securities LLC (“Berkshire Capital”) and Highbury Financial Inc.
(“Highbury”).
Berkshire
Capital and Highbury agree that Berkshire Capital will provide to Highbury
for
and in consideration of the fees set forth herein, office space and certain
general and administrative services, as Highbury may require from time to
time
and as outlined below.
1. BASIC
TERMS.
| A. |
Monthly
Fixed Fee for Office Services (as defined in Section 2 below):
$7,500.00
|
| B. |
Facilities:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the
“Building”)
|
| C. |
Term:
from the effective date of Highbury’s proposed initial public offering of
its units pursuant to its Registration Statement on Form S-1 as filed
with
the Securities and Exchange Commission on August 5, 2005, as amended
(such
Registration Statement, the “Registration Statement” and such date, the
“Effective Date”) until the earlier of Highbury’s (i) failure to enter
into a letter of intent, definitive agreement or agreement in principle
with respect to a Business Combination (as defined in the Registration
Statement) on any day during the 18-month period immediately following
the
Effective Date, and (ii) the failure to consummate a Business Combination
on any day during the 24-month period immediately following the Effective
Date (the “Term”)
|
2. OFFICE
SERVICES. Highbury shall be provided with the non-exclusive use of the Building
and shall have access to the Building twenty-four (24) hours a day, seven
(7)
days a week. In exchange for the Monthly Fixed Fee for Office Services,
Berkshire Capital agrees to provide the following base services: office
cleaning, maintenance services, office supplies, electricity, heating and
air
conditioning to the Building, administrative support, including, but not
limited
to, information technology, secretarial and bookkeeping services as well
as
communications services such as unlimited use of Internet/Data, telephone,
fax
and photocopier (the “Office Services”). In addition, Highbury will have
reasonable use of Berkshire Capital’s common area facilities. Highbury shall use
the Building and auxiliary areas of the facilities solely for general office
use
in the conduct of Highbury’s business.
In
order
to accommodate the needs of potential multiple office clients, Berkshire
Capital
will have the right, upon ten (10) days’ written notice, to relocate Highbury to
other offices in the Building and to substitute such other offices for the
offices contracted herein, provided such other offices are substantially
similar
in area and configuration to Highbury’s contracted offices and provided Highbury
shall incur no increase in the total monthly fee or any relocation cost or
expense.
Highbury
will not offer to any party in the Building any of the services which Berkshire
Capital provides to Highbury.
Berkshire
Capital will answer all incoming phone calls, unless otherwise mutually agreed,
during normal business hours, as reasonably determined by Berkshire
Capital.
Highbury
acknowledges that due to the imperfect nature of verbal, written and electronic
communications, Berkshire Capital shall not be responsible for damages, direct
or consequential, which may result from the failure of Berkshire Capital
to
furnish any service, including but not limited to the conveying of messages,
communications and other utilities or services required under this
Agreement.
Highbury
expressly agrees to waive the right to make any claim for damages, direct
or
consequential, arising out of any failure to furnish any utility, service
or
facility, any error or omission with respect thereto, or any delay or
interruption of the same.
Berkshire
Capital will pay some of Highbury’s expenses and Highbury will remit the amount
of such expenses to Berkshire Capital on a monthly basis, at no profit to
Berkshire Capital.
3. DURATION
OF AGREEMENT. After expiration of the Term, the Agreement will automatically
terminate. Prior to expiration of the Term, either party may terminate the
Agreement upon 30 days’ advance written notice to the other party.
4. PAYMENTS.
The monthly invoices/statements for the Monthly Fixed Fee for Office Services
will be billed in advance. Any amounts payable by Highbury for expenses paid
by
Berkshire Capital shall appear on the invoice for the month following the
month
in which Berkshire Capital has paid such expenses. Statements will be placed
in
the mailbox or faxed to Highbury on the first day of each month with payments
due by the fifth day of each month. If the Term shall not commence on the
first
day of a month or end on the last day of a month, fees for any such month
shall
be prorated. All amounts payable hereunder shall be payable at the office
of
Berkshire Capital or to such other location or to any agent designated in
writing by Berkshire Capital.
5. DAMAGES
AND INSURANCE. Highbury will not damage or deface the furnishings, walls,
floors
or ceiling. Highbury will not cause damage to any part of the Building or
disturb the quiet enjoyment of any other licensee or occupant of the Building
nor suffer to be made any waste, obstruction or unlawful, improper or offensive
use of the Building or the common area facilities. At the termination of
this
Agreement, Highbury will return the Building in as good of condition as when
Highbury took possession, though normal wear and tear shall be expected.
Berkshire Capital shall have the right to show the Building to prospective
clients, provided Berkshire Capital will use reasonable efforts not to disrupt
Highbury’s business.
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Berkshire
Capital and its respective directors, licensors, officers, agents, servants
and
employees shall not, to the extent permitted by law, except upon the affirmative
showing of Berkshire Capital’s gross negligence or willful misconduct, be liable
for, and Highbury waives all right of recovery against such entities and
individuals for any damage or claim with respect to any injury to person
or
damage to, or loss or destruction of any property of Highbury, its employees,
authorized persons and invitees due to any act, omission or occurrence in
or
about the Building. Without limitation of any other provision hereof, Highbury
agrees to indemnify, defend, protect and hold Berkshire Capital and its
respective directors, licensors, officers, agents, servants and employees
harmless from and against all liability to third parties arising out of
Highbury’s use and occupancy of the Building or actions or omissions of Highbury
and its agents, employees, contractors, and invitees. Highbury further agrees
that all personal property of Highbury, its agents, employees, contractors,
and
invitees, within or about the facilities of the Building shall be at the
sole
risk of Highbury.
The
parties hereby waive any and all rights of recovery against each other, or
against the officers, employees, agents or representatives of the other,
for
loss of or damage to its property or the property of others under its control,
to the extent such loss or damage is covered by any insurance
policy.
If
the
Building is made unusable, in whole or in part by fire or other casualty
not due
to the negligence of Highbury, Berkshire Capital may, at its option, terminate
the Agreement upon written notice to Highbury, effective upon such casualty,
or
may elect to repair, restore, or rehabilitate, or cause to be repaired, restored
or rehabilitated, the Building, without expense to Highbury, within ninety
(90)
days or within such longer period of time as may be required because of events
beyond Berkshire Capital’s control. The Monthly Fixed Fee for Office Services
shall be abated on a pro rata basis for the period of time the Building is
unusable.
6. DEFAULT.
Highbury shall be deemed to be in default under this Agreement: (a) if Highbury
fails to pay the Monthly Fixed Fee for Office Services, (b) if Highbury fails
to
promptly and fully perform any other provisions of this Agreement and any
such
default continues in excess of five (5) business days after written notice
by
Berkshire Capital, or (c) if Highbury fails to comply with the laws or permit
licensing rules and other requirements regulating the conduct of Highbury’s
business. Should Highbury be in default hereunder, Berkshire Capital may
terminate any or all of the services for the period of such
default.
7. MISCELLANEOUS.
| A. |
This
is the only Agreement between the parties with respect to the subject
matter hereof. All amendments to this Agreement shall be in writing
and
signed by all parties. Any attempted amendment shall be void. The
invalidity or unenforceability of any provision hereof shall not
affect
the remainder hereof.
|
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| B. |
All
waivers must be in writing and signed by the waiving party. Berkshire
Capital’s failure to enforce any provision of this Agreement or its
acceptance of fees shall not be a waiver and shall not prevent Berkshire
Capital from enforcing any provisions of this Agreement in the future.
No
receipt of money by Berkshire Capital shall be deemed to waive any
default
of Highbury or to extend, reinstate or continue the term
hereof.
|
| C. |
In
regard to the trust account that will hold substantially all of the
offering proceeds Highbury expects to raise from the initial public
offering of its units (the “Trust Account”), Berkshire Capital hereby
waives any right of recourse against the Trust Account and agrees
not to
seek reimbursement, payment or satisfaction of any claim against
the Trust
Account.
|
| D. |
The
laws of the State of Colorado without regard to the conflict of law
principles shall govern this Agreement.
|
| E. |
Highbury
represents and warrants to Berkshire Capital that there are no agents,
brokers, finders or other parties with whom Highbury has dealt who
are or
may be entitled to any commission or fee with respect to this
Agreement.
|
| F. |
Neither
Highbury nor anyone claiming by, through or under Highbury shall
assign
this Agreement or permit the use of any portion of the Building by
any
person other than Highbury.
|
| G. |
All
notices hereunder shall be in writing. Notices to Highbury shall
be deemed
to be duly given if hand-delivered to Highbury’s mailbox at 000 Xxxxxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000. Notice to Berkshire Capital
shall be deemed to be duly given if mailed by registered or certified
mail, postage prepaid, to 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
|
| H. |
Highbury
acknowledges that Berkshire Capital will comply with U.S. Postal
Service
regulations regarding client mail and, upon termination of this Agreement,
it will be Highbury’s responsibility to notify all parties of termination
of the use of the above-described
address.
|
| I. |
Berkshire
Capital may assign this Agreement and/or any fees hereunder and Highbury
agrees to attorn any such assignee.
|
| J. |
Berkshire
Capital shall not be liable for any interruption or error in the
performance of its services to Highbury. Highbury waives any recourse
against Berkshire Capital arising from the provision of such services,
including, without limitation, any claim of business interruption
or for
any indirect, incidental, special, consequential or punitive damages,
except for claims arising out of willful misconduct or from negligence
by
Berkshire Capital.
|
4
| K. |
Berkshire
Capital will not be liable for any claim of business interruption
or for
any indirect, incidental, special, consequential, exemplary or punitive
damages arising out of any failure to furnish any service or facility,
any
error or omission with respect thereto, or any delay or interruption
of
the same.
|
| L. |
Berkshire
Capital and its agents will have the right of access to the Building
at
any time for the purpose of (i) making any repairs, alterations and/or
inspections that it deems necessary in its sole discretion for the
preservation, safety or improvements of the facilities, or (ii) to
show
the facilities to prospective clients without in any way being deemed
or
held to have committed an eviction (constructive or otherwise) of
or
trespass against Highbury.
|
| M. |
Failure
of Berkshire Capital to insist upon the strict performance of any
term or
condition of this Agreement or to exercise any right or remedy available
for a breach thereof, or acceptance of full or partial payment during
the
continuance of any such breach, will not constitute a waiver of any
such
breach or any such term or condition. No term or condition of this
Agreement required to be performed by Highbury and no breach thereof,
will
be waived, altered or modified, except by a written instrument executed
by
Berkshire Capital.
|
|
000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
|
BERKSHIRE
CAPITAL SECURITIES LLC
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
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By:
|
By:
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|
Title:
President and Chief
Executive Officer |
Title:
Chief Executive Officer
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Date:
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Date:
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