Re: Side Letter Agreement - Montag & Caldwell
EXHIBIT
10.4
April
20,
2006
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx
Fax:
(000) 000-0000
|
Re:
|
Side
Letter Agreement - Montag &
Xxxxxxxx
|
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. (“Montag”), a Georgia
corporation , Tamro Capital Partners LLC, a Delaware limited liability company
,
Veredus Asset Management LLC, a Kentucky limited liability company , 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.
In
connection with Montag entering into the Purchaser Agreement, Purchaser and
Montag hereby enter into this letter immediately after the effectiveness of
the
Purchase Agreement and hereby agree as follows:
1. Notwithstanding
Section 5.4 of the Purchase Agreement to the contrary, Section 5.4 shall not
restrict Montag from: (i) acting as sub-adviser to any multi-manager product
or
fund, or (ii) acting as the adviser or a sub-adviser to any Mutual Fund;
provided, however, that prior to the fifth anniversary of the Closing Date,
Montag may not (A) act as the sole adviser or as a sub-adviser to a mutual
fund
registered under the 1940 Act, other than the Target Funds, or (B) use or permit
the use of the Retained Name & Marks with respect to any Mutual Fund, other
than the Target Funds. Notwithstanding the foregoing, Montag may use the
Retained Name and Marks prior to the fifth anniversary of the Closing Date
in
connection with any collective investment fund that is not registered under
the
1940 Act that Montag sponsors (a “Montag CIV”), provided that Montag pays the
Purchaser ten (10) basis points per annum on the aggregate amount of the assets
invested in such Montag CIV by any investor who, together with such investor’s
Related Parties, initially invests less than $40 million in such Montag CIV.
Montag shall pay such ten (10) basis points solely with respect to the first
$40
million that the investor invests in such Montag CIV and shall pay such amount
until the earlier of the date on which the investor withdraws such assets from
the Montag CIV or the fifth anniversary of the Closing Date. For purposes of
this Paragraph 1, “Related Party” shall mean (1) with respect to any
partnership, corporation, company, limited liability company, trust or other
entity, any Affiliate of such entity, and (2) with respect to any natural
person, any member of such person’s family or any partnership, trust or other
entity, the beneficial interests in which are directly or indirectly owned
solely by members of such person’s family.
2. Notwithstanding
Section 5.4 of the Purchase Agreement, in the event that the Purchaser
terminates an Investment Subadvisory Agreement between the Purchaser and Montag
before the fifth anniversary of the Closing Date without Cause, (i) Montag
shall
immediately have the right (a) to act as the sole adviser or sole sub-adviser
with respect to any mutual fund registered under the 1940 Act which is managed
in a similar style to that of the fund subject to such terminated Investment
Subadvisory Agreement, and (b) to use the Retained Name & Marks with respect
to any product, fund or other investment vehicle for which it acts as sponsor,
adviser or sub-adviser and which is managed in a similar style to that of the
fund subject to such terminated Investment Subadvisory Agreement, and (ii)
if
such terminated Investment Subadvisory Agreement was with respect to the ABN
AMRO / Montag & Xxxxxxxx
Growth Fund, then Montag’s obligation to pay the Purchaser ten (10) basis with
respect to any Montag CIV shall immediately terminate. For purposes of this
paragraph 2, the term “Cause” shall mean any (i) material breach by Montag of
the Investment Subadvisory Agreement, (ii) any material regulatory compliance
issue arising from or relating to any action or inaction of Montag, (iii) any
loss of key Montag personnel or (iv) any other event or circumstance of similar
import or impact.
3. Purchaser
agrees that, notwithstanding the provisions of Section 5.4(a)(iii) of the
Purchase Agreement, Montag shall be permitted to accept funds from clients
of
Target Funds for purposes of creating a separately managed account managed
in
the style of any Target Fund sub-advised by Montag, without regard to the amount
of total investment dollars that such client and his, her or its Affiliates
collectively provide Montag for investment in such account, provided that with
respect to any such investment made during the Restricted Period (i) such
investor provides Purchaser with a letter of intent with respect to such
investment, which letter on intent includes a representation by such investor
that Montag did not, directly or indirectly, solicit such investment and (ii)
Montag shall pay the Purchaser ten (10) basis points per annum on the aggregate
amount of the assets so invested until the earlier of (x) the fifth anniversary
of the date of such initial investment or (y) the date on which such investor
withdraws such assets from management by Montag.
This
letter agreement shall constitute the binding and enforceable obligation of
Purchaser and Montag 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
Montag (other than a direct or indirect wholly owned subsidiary of Montag)
or
(ii) 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.
| MONTAG & XXXXXXXX, INC. | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxx | |
|
Name: Xxxxxxx X. Xxxxx |
||
| Title: Chief Executive Officer | ||
Acknowledged and Accepted:
ASTON
ASSET MANAGEMENT LLC
| By: Highbury Financial Inc. | |||
| 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 President
|
|||
Side
Letter - Montag / Non-Compete
