UNIT PURCHASE OPTION REPURCHASE AGREEMENT
Exhibit
99.2
THIS
UNIT
PURCHASE OPTION REPURCHASE AGREEMENT (the “Agreement”)
is
made as of this 20th day
of July, 2007, by and between HIGHBURY FINANCIAL INC., a Delaware
corporation (the “Company”),
and
EARLYBIRDCAPITAL,
INC.
(“Seller”).
WITNESETH:
WHEREAS,
Seller is the registered owner of a purchase option (the “Purchase
Option”)
originally issued to Seller on January 31, 2006 to purchase up to
168,333 units (“Units”)
of the
Company.
WHEREAS,
the Company wishes to purchase from the Seller, and the Seller wishes to sell
to
the Company, the Purchase Option on the terms and conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
1. Sale
and Purchase of the Purchase Option.
The
Seller hereby sells, assigns, transfers and delivers to the Company, and the
Company hereby purchases, accepts, assumes and receives from the Seller, all
right, title and interest in and to the Purchase Option.
2. Purchase
Price.
The
purchase price for the Purchase Option is $3.86138 per Unit, or Six Hundred
Forty-Nine Thousand Nine Hundred Ninety-Eight Dollars and Seven Cents
($649,998.07) in the aggregate (the “Purchase Price”).
3. Deliveries.
Simultaneously with the execution and delivery of this Agreement:
(a) the
Seller has delivered to the Company the certificate representing the Purchase
Option, together with a stock power and assignment duly endorsed in blank in
the
form attached hereto as Exhibit A; and
(b) the
Company has delivered to the Seller the Purchase Price by wire transfer of
U.S.
Dollars in immediately available funds at the account described on Exhibit
B.
4. Representations
and Warranties of the Seller.
The
Seller represents and warrants to the Company as follows:
(a) Seller
is
validly existing and is in good standing under the laws of the jurisdiction
of
its organization.
(b) Seller
has full legal capacity, power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by Seller have been duly and validly authorized by all
necessary action on the part of Seller, and no other proceedings on the part
of
Seller are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby.
(c) This
Agreement has been duly and validly executed and delivered by Seller and
constitutes a valid and binding agreement of Seller, enforceable against Seller
in accordance with its terms.
(d) Seller
owns of record the Purchase Option and is assigning it to the Company free
and
clear of all “adverse claims” (as such term is defined in
Section 8-102(a)(1) of the Uniform Commercial Code of the State of New
York).
(e) The
execution and delivery of this Agreement by Seller does not, and the performance
of the terms of this Agreement by Seller will not, (i) require Seller to obtain
the consent or approval of, or make any filing with or notification to, any
governmental or regulatory authority, domestic or foreign; (ii) conflict with
or
violate the organizational documents of Seller; (iii) require the consent or
approval of any other person pursuant to any agreement, obligation or instrument
binding on Seller or its properties and assets; (iv) conflict with or violate
any organizational document or law, rule, regulation, order, judgment or decree
applicable to Seller or by which any property or asset of Seller is bound;
or
(v) violate any other agreement to which Seller is a party, including, without
limitation, any voting agreement, stockholders agreement, irrevocable proxy,
or
voting trust.
(f) Seller
acknowledges that (i) the Company may have possession of material, non-public
information concerning the Company and its securities (collectively, the
“Excluded
Information”)
and
the Company is not sharing the Excluded Information with Seller; (ii) Seller
does not possess or have access to the Excluded Information, and, as a
consequence, there may exist a disparity of information between the Company
and
the Seller with respect to the Company and its securities, including the
Purchase Option; (iii) the Excluded Information could be indicative of a value
of the Purchase Option that is higher than the Purchase Price reflected in
the
sale or could otherwise be adverse to the Seller; and (iv) the Excluded
Information may be material to Seller’s decision to sell the Purchase
Option.
(g) Seller
has not requested the Excluded Information and agrees that the Company shall
not
be obligated to disclose any Excluded Information to the Seller and that the
Company shall have no liability with respect to any non-disclosure of the
Excluded Information. As a condition to the Company’s agreement to buy the
Purchase Option, to the fullest extent permitted by law, the Seller hereby
releases and waives any and all claims, causes of action, actions, proceedings,
suits, judgments, liens and executions, claims and causes of action, whether
known or unknown, now or hereafter arising against the Company, based upon
or
relating to such non-disclosure or the Seller’s failure to review the Excluded
Information and further covenants not to xxx the Company for any loss, damage
or
liability arising from or relating to the sale of the Purchase Option.
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(h) Seller
(i) is an “accredited investor” as defined in Rule 501 under the Securities Act
of 1933, as amended, and (ii) has not relied upon the Company for any
investigation into, assessment of, or evaluation with respect to the Purchase
Option, the Company and/or the transactions contemplated hereby. The Seller
further acknowledges that the Company has not made any representation or
warranty whatsoever with respect to the business, condition (financial or
otherwise), properties, prospects, creditworthiness, status or affairs of the
Company or with respect to the value, terms or enforceability of the Purchase
Option.
5. Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Seller as follows:
(a) The
Company is a corporation duly organized and validly existing under the laws
of
the State of Delaware.
(b) The
Company has full legal capacity, power and authority to execute and deliver
this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement,
and the consummation of the transactions contemplated hereby by the Company,
have been duly and validly authorized by all necessary action on the part of
the
Company, and no other proceedings on the part of the Company are necessary
to
authorize this Agreement, or to consummate the transactions contemplated hereby.
(c) This
Agreement has been duly and validly executed and delivered by the Company and
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms.
(d) The
execution and delivery of this Agreement by the Company does not, and the
performance of the terms of this Agreement by the Company will not, (i) require
the Company to obtain the consent or approval of, or make any filing with or
notification to, any governmental or regulatory authority, domestic or foreign;
(ii) conflict with or violate the organizational documents of the Company;
(iii)
require the consent or approval of any other person pursuant to any agreement,
obligation or instrument binding on the Company or its properties and assets;
(iv) conflict with or violate any organizational document or law, rule,
regulation, order, judgment or decree applicable to the Company or by which
any
property or asset of the Company is bound; or (v) violate any other agreement
to
which the Company is a party, including, without limitation, any voting
agreement, stockholders agreement, irrevocable proxy, or voting trust.
6. Survival
of Representations and Warranties.
The
representations and warranties set forth in Sections 4 and 5 of this
Agreement shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
7. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York applicable to agreements made and to be enforced in such
State, without reference to any choice of law rules that would require the
application of the laws of any other jurisdiction.
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8. Entire
Agreement and Waiver.
This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements
and
arrangements, written or oral, relating to the subject matter hereof. No
amendment, supplement, modification, rescission or waiver of this Agreement
shall be binding unless executed in a writing signed by a duly authorized
officer or each of the Company or Seller. No waiver of any of the provisions
of
this Agreement shall be deemed, or shall constitute, a continuing wavier unless
otherwise expressly provided.
9. Binding
Effect; Benefits.
This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, personal representatives, successors and assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto, or their respective heirs, personal
representatives, successors or assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
10. Further
Assurances.
Each of
the parties shall execute such documents and other papers and take such further
actions as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby.
11. Counterparts.
This
Agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12. Specific
Performance.
The
rights of the parties under this Agreement are unique and, accordingly, the
parties shall have the right, in addition to such other remedies as may be
available to any of them at law or in equity, to enforce their rights hereunder
by actions for specific performance in addition to any other legal or equitable
remedies they might have to the extent permitted by law.
13. Notice.
Unless
otherwise provided herein, any notice, report, payment or document to be given
by one party to the other shall be in writing and shall be given in person,
by
any method of mail (postage prepaid) requiring return receipt, or by overnight
courier, facsimile or electronic mail. Notice shall be deemed sufficiently
given
for all purposes upon the earlier of (i) the date received, (ii) if sent by
reputable overnight courier, one business day after it is deposited with such
courier, or (iii) the date of delivery, refusal or non-delivery indicated on
the
return receipt if deposited in the United States mails, sent postage prepaid,
certified or registered mail, return receipt requested, addresses as provided
below. If any such notice is hand delivered, the delivery shall be affected
upon
receipted delivery. Notices shall be given as follows:
| (a) |
If
to the Company, to:
|
000
00xx
Xxxxxx
Xxxxx
0000
Xxxxxx,
XX 00000
Attention: Xxxxxxx
Forth
Executive
Vice President
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| (b) |
If
to the Seller, to:
|
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxx
CEO
or
to
such other place as any party may designate as to itself by written notice
to
the other party.
14. Miscellaneous.
The
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of any other term or provision hereof. The
headings in this Agreement are for convenience of reference only and shall
not
alter or otherwise affect the meaning hereof. This Agreement shall be deemed
drafted by both parties, and it shall not be construed against either party
as
the drafter of the document. Words such as “herein”, hereinafter”, “hereof”,
“hereby” and “hereunder” refer to this Agreement as a whole and not merely to a
section or paragraph in which such words appear, unless the context otherwise
requires. The singular shall include the plural, unless the context otherwise
requires. Words importing the masculine gender shall include the feminine
gender, and vice versa.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the parties have executed this Unit Purchase Option Repurchase
Agreement as of the date first above written.
|
By:
/s/
Xxxxxxx X.
Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
President & CEO
|
||
|
EARLYBIRDCAPITAL,
INC.
By:
/s/
Xxxxxx
Xxxxxx
Name:
Xxxxxx Xxxxxx
Title:
CEO
|
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Exhibit
A to Unit Purchase Option Repurchase Agreement
ASSIGNMENT
FOR
VALUE
RECEIVED, EarlyBirdCapital, Inc. does
hereby sell, assign and transfer unto HIGHBURY FINANCIAL INC. (the “Company”)
the right to purchase 168,333
Units of
the Company evidenced by the within Purchase Option and does hereby authorize
the Company to transfer such right on the books of the Company.
Dated:
July 20, 2007
|
/s/
Xxxxxx
Xxxxxx
Signature
/s/ Xxxxx
Xxxxxx
Xxxxxx
Signature
Guaranteed
|
NOTICE:
THE SIGNATURE TO THIS FORM MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE WITHIN PURCHASE OPTION IN EVERY PARTICULAR WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED BY A BANK, OTHER
THAN A SAVINGS BANK, OR BY A TRUST COMPANY OR BY A FIRM
Ex.
A
