HIGHBURY FINANCIAL INC. SUBSCRIPTION AGREEMENT
Exhibit
10.5
THIS
SUBSCRIPTION AGREEMENT (the
“Agreement”) is made as of the 1st
day of
August, 2005, by and between HIGHBURY
FINANCIAL INC.,
a
Delaware corporation (the “Company”), and The
XXXXX XXXXXX XXXXX TRUST (“Purchaser”).
WHEREAS,
the
Company desires to issue, and Purchaser desires to acquire, stock of the
Company
as herein described, on the terms and conditions hereinafter set
forth;
NOW,
THEREFORE, IT IS AGREED between
the parties as follows:
1. Purchase
and Sale of Stock.
Purchaser hereby agrees to purchase from the Company, and the Company hereby
agrees to sell to Purchaser, an aggregate of seventy five thousand (75,000)
shares of the Common Stock of the Company (the “Stock”) at $0.0167 per share,
for an aggregate purchase price of $1,250.00. The closing hereunder, including
payment for and delivery of the Stock shall occur at the offices of the Company
immediately following the execution of this Agreement, or at such other time
and
place as the parties may mutually agree.
2. Limitations
on Transfer.
Purchaser shall not assign, hypothecate, donate, encumber or otherwise dispose
of any interest in the Stock except in compliance with applicable securities
laws.
3. Restrictive
Legends.
All
certificates representing the Stock shall have endorsed thereon legends in
substantially the following forms (in addition to any other legend which
may be
required by other agreements between the parties hereto):
(a) “THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS
TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
(b) Any
legend required by appropriate blue sky officials.
4. Investment
Representations.
In
connection with the purchase of the Stock, Purchaser represents to the Company
the following:
(a) Purchaser
is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Stock. Purchaser is purchasing the
Stock
for investment for Purchaser’s own account only and not with a view to, or for
resale in connection with, any “distribution” thereof within the meaning of the
Securities Act of 1933, as amended (the “Act”).
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(b) Purchaser
understands that the Stock has not been registered under the Act by reason
of a
specific exemption therefrom, which exemption depends upon, among other things,
the bona fide nature of Purchaser’s investment intent as expressed
herein.
(c) Purchaser
further acknowledges and understands that the Stock must be held indefinitely
unless the Stock is subsequently registered under the Act or an exemption
from
such registration is available. Purchaser understands that the certificate
evidencing the Stock will be imprinted with a legend which prohibits the
transfer of the Stock unless the Stock is registered or such registration
is not
required in the opinion of counsel for the Company.
(d) Purchaser
is familiar with the provisions of Rules 144, under the Act, as in effect
from
time to time, which, in substance, permit limited public resale of “restricted
securities” acquired, directly or indirectly, from the issuer thereof (or from
an affiliate of such issuer), in a non-public offering subject to the
satisfaction of certain conditions. Unless the Company registers the stock
under
the Act, the Stock may be resold by Purchaser only in certain limited
circumstances subject to the provisions of Rule 144, which requires, among
other
things: (i) the availability of certain public information about the
Company and (ii) the resale occurring following the required holding
period
under Rule 144 after the Purchaser has purchased, and made full payment of
(within the meaning of Rule 144), the securities to be sold.
(e) Purchaser
further understands that at the time Purchaser wishes to sell the Stock there
may be no public market upon which to make such a sale, and that, even if
such a
public market then exists, the Company may not be satisfying the current
public
information requirements of Rule 144, and that, in such event, Purchaser
would
be precluded from selling the Stock under Rule 144 even if the minimum holding
period requirement had been satisfied. Notwithstanding Sections 4(d) and
(e)
hereof, Purchaser understands that it is the position of the Securities and
Exchange Commission (“SEC”) that
promoters or affiliates of a blank check company and their transferees, both
before and after a business combination, would act as an “underwriter” under the
Securities Act of 1933 when reselling the securities of a blank check company.
Accordingly, the SEC believes that those securities can be resold only through
a
registered offering and that Rule 144 would not be available for those resale
transactions despite technical compliance with the requirements of Rule
144.
(f) Purchaser
represents that Purchaser is an “accredited investor” as that term is defined in
Rule 501 of Regulation D promulgated by the Securities and Exchange Commission
under the Act.
5. No
Employment Rights.
This
Agreement is not an employment contract and nothing in this Agreement shall
affect in any manner whatsoever the right or power of the Company (or a parent
or subsidiary of the Company) to terminate Purchaser’s employment for any reason
at any time, with or without cause and with or without notice.
6. Miscellaneous.
(a) Notices.
All
notices required or permitted hereunder shall be in writing and shall be
deemed
effectively given: (i) upon personal delivery to the party to be notified,
(ii) when sent by confirmed facsimile if sent during normal business
hours
of the recipient, and if not during normal business hours of the recipient,
then
on the next business day, (iii) five (5) calendar days after
having
been sent by registered or certified mail, return receipt requested, postage
prepaid, or (iv) one (1) business day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the other party
hereto at such party’s address hereinafter set forth on the signature page
hereof, or at such other address as such party may designate by ten (10)
days
advance written notice to the other party hereto.
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(b) Successors
and Assigns.
This
Agreement shall inure to the benefit of the successors and assigns of the
Company and, subject to the restrictions on transfer herein set forth, be
binding upon Purchaser, Purchaser’s successors, and assigns.
(c) Attorneys’
Fees; Specific Performance.
Purchaser shall reimburse the Company for all costs incurred by the Company
in
enforcing the performance of, or protecting its rights under, any part of
this
Agreement, including reasonable costs of investigation and attorneys’
fees.
(d) Governing
Law; Venue.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York without regard to conflicts of law thereof. The parties
agree
that any action brought by either party to interpret or enforce any provision
of
this Agreement shall be brought in, and each party agrees to, and does hereby,
submit to the jurisdiction and venue of, the appropriate state or federal
court
for the district encompassing the Company’s principal place of
business.
(e) Further
Execution.
The
parties agree to take all such further action(s) as may reasonably be necessary
to carry out and consummate this Agreement as soon as practicable, and to
take
whatever steps may be necessary to obtain any governmental approval in
connection with or otherwise qualify the issuance of the securities that
are the
subject of this Agreement.
(f) Independent
Counsel.
Purchaser acknowledges that this Agreement has been prepared on behalf of
the
Company by Xxxxxxx XxXxxxxxx LLP, counsel to the Company and that Xxxxxxx
XxXxxxxxx LLP does not represent, and is not acting on behalf of, Purchaser.
Purchaser has been provided with an opportunity to consult with Purchaser’s own
counsel with respect to this Agreement.
(g) Entire
Agreement; Amendment.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes and merges all prior agreements
or
understandings, whether written or oral. This Agreement may not be amended,
modified or revoked, in whole or in part, except by an agreement in writing
signed by each of the parties hereto.
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(h) Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded
from this Agreement, (ii) the balance of the Agreement shall be interpreted
as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
(i) Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one
instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
| HIGHBURY FINANCIAL INC. | ||
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| By: | ||
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Xxxxxxx X. Xxxxx |
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| Title: President and Chief Executive Officer | ||
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Address:
000
Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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| Purchaser: The Xxxxx Xxxxxx Xxxxx Trust | ||
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| By: | ||
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Name:
Title:
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| Address: | ||
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