EMPLOYMENT AGREEMENT
Exhibit
10.49
THIS
EMPLOYMENT AGREEMENT (this “Employment
Agreement”) is entered into as of December 12, 2009, by and among
Highbury Financial Inc., a Delaware corporation (“Highbury” or the
“General
Partner”), Manor LLC (“Manor”), a Delaware
limited liability company and a wholly-owned subsidiary of Affiliated Managers
Group, Inc., a Delaware corporation (“AMG”), Aston Asset
Management, LLC, a Delaware limited liability company (the “Employer”), and
Xxxxxx Xxxxxx (the “Employee”).
WITNESSETH:
WHEREAS,
pursuant to that certain Agreement and Plan of Merger, dated as of the date
hereof (the “Merger
Agreement”), by and among AMG, Highbury and Manor, Highbury will merge
(on the terms and subject to the conditions set forth therein) with and into
Manor (with Manor surviving), at the Effective Time and, as a result AMG will
own, indirectly through Manor, which shall become the General Partner of the
Employer, a majority of the partnership interest and the associated goodwill of
the Employer (the “Merger”);
WHEREAS,
the General Partner, the Employee and the other parties thereto have entered
into that certain Amended and Restated Limited Partnership Agreement of the
Employer, which will become effective as of immediately prior to the Effective
Time and reflect the conversion of the Employer into a Delaware limited
partnership by the name of Aston Asset Management, LP at such time (as the same
may be amended and/or restated from time to time, the “Restated LP
Agreement”);
WHEREAS,
the Employee is a key employee of the Employer (and its predecessors thereto),
has been employed by the Employer (and its predecessors thereto) for more than
38 years, has while so employed contributed to the acquisition and retention of
Clients (as defined herein), and will continue to seek to acquire and retain
Clients and to generate goodwill in the future as an officer, employee and agent
of the Employer following the Effective Time;
WHEREAS,
the General Partner, the Employer and the Employee recognize the importance of
the Employee to the Employer and to the Employer's ability to retain its client
relationships and desire that the Employer employ the Employee for the period of
employment and upon and subject to the terms herein provided;
WHEREAS,
the General Partner and the Employer wish to be assured that the Employee will
not compete with the Employer or any of its Controlled Affiliates during the
period of employment and for a period thereafter, and that the Employee will not
solicit any Past Clients, Present Clients or Potential Clients of the Employer
or its Controlled Affiliates, as any such competition or solicitation by the
Employee would damage the Employer's good will among Clients and the general
public;
WHEREAS,
the Employee desires to be employed by the Employer and to refrain from
competing with the Employer or any of its Controlled Affiliates or soliciting
Past Clients, Present Clients or Potential Clients for the periods and upon and
subject to the terms herein provided; and
WHEREAS,
it is a condition precedent to the obligation of AMG to consummate the
transactions contemplated by the Merger Agreement and the Restated LP Agreement
that the Employee enter into and be bound by an employment agreement with the
Employer and the General Partner in the form hereof (including without
limitation the non-competition and other restrictive covenants set forth
herein).
AGREEMENTS
Except to
the extent otherwise expressly set forth herein, initially capitalized terms
used herein and not otherwise defined herein shall have the meaning set forth in
the Restated LP Agreement.
In
consideration of the premises, the mutual covenants and the agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto covenant and
agree as follows:
Section 1. Effectiveness;
Term of Employment; Compensation; Retirement.
(a) This
Employment Agreement shall constitute a binding agreement between the parties as
of the date hereof; provided, however, that in the
event the Merger Agreement is terminated for any reason without the Effective
Time having occurred, this Employment Agreement shall be terminated without
further obligation or liability on the part of any party hereto (other than with
respect to any breaches of the terms of this Employment Agreement occurring
prior to such termination of the Merger Agreement, for which the party breaching
this Employment Agreement shall remain liable notwithstanding such termination
of the Merger Agreement). At the Effective Time, this Employment
Agreement will supercede any then-existing employment agreement of the Employee.
Notwithstanding any other provision herein, this Employment Agreement shall
constitute a binding agreement between the parties as of the date hereof but
shall not have any force or effect until the Effective Time. Until the Effective
Time, nothing herein will be deemed to amend, modify or supersede in any
respect any other agreement the Employee may have with Employer and this
Agreement shall automatically terminate without any action by any party hereto
upon the termination of the Merger Agreement in accordance with its
terms.
(b) The
Employer agrees to employ the Employee for a period of four (4) years beginning
on the Closing Date (the “Term”), and the
Employee accepts such employment and agrees to be employed by the Employer for
the Term (in each case subject to termination of the Employee's employment
solely as provided herein). As consideration for the Employee's
performance hereunder, the Employer will pay the Employee for his services
during the Term hereof such amounts (which may be zero (0)) as shall be
determined by the Management Committee or its delegate(s) consistent with the
provisions of Article III of the Restated LP Agreement (including, by way of
example and not of limitation, the provisions of Section 3.5(a) of the Restated
LP Agreement with regard to the use of Operating Allocation), subject to such
payroll and withholding deductions as are required by law. Consistent
with the provisions of Section 3.5(a) of the Restated LP Agreement, the
Employee's compensation (including salary and bonus) will be periodically
reviewed and adjusted (with respect to both increases and/or
decreases). For the avoidance of doubt, the Employee is eligible for
“Retirement” (as defined in the Restated LP Agreement) immediately following the
conclusion of the Term and satisfaction of applicable notice obligations (as
more fully set forth in the Restated LP Agreement).
2
Section
2. Office and Duties; Certain Definitions.
(a) During
the Term of this Employment Agreement and thereafter while employed by the
Employer, the Employee shall hold such positions and perform such duties
relating to the Employer's and its Controlled Affiliates' businesses and
operations as may from time to time be assigned to him in accordance with the
provisions of Article III of the Restated LP Agreement. During the
Term of this Employment Agreement and thereafter while employed by the Employer,
the Employee shall devote substantially all of his working time (i.e., normal
business hours) to his duties hereunder and shall, to the best of his ability,
perform such duties in a manner which will further the business and interests of
the Employer and its Controlled Affiliates. The Employee agrees that
the Employee will travel to whatever extent is reasonably necessary in the
conduct of the Employer's and its Controlled Affiliates'
businesses.
(b) During
the Term of this Employment Agreement and thereafter while employed by the
Employer, the Employee shall, solely with the prior written consent of the
Management Committee and the General Partner, be permitted to serve as a member
of the board of directors of charitable and other not for profit organizations
and private or public companies, provided that such positions do not
(individually or in the aggregate) interfere with the performance of the
Employee's duties and responsibilities hereunder, conflict with (or create the
appearance of conflict with) the businesses of the Employer and its Controlled
Affiliates, or create the appearance of significant involvement with any other
endeavor.
(c) As
used in this Employment Agreement, the following terms shall have the following
meanings:
“Client” shall mean
all Past Clients, Present Clients and Potential Clients, subject to the
following general rules:
(i) with
respect to each Client, the term “Client” shall also include any Persons who are
Affiliates of such Client, directors, officers or employees of such Client or
any such Affiliates thereof, or Persons who are members of the Immediate Family
of such Client or any of the other foregoing Persons or Affiliates of any of
them;
(ii) with
respect to any Present Client or Past Client (as applicable) that is a Fund, the
term “Client” shall include (x) the sponsor of such Client, and any other Fund
sponsored by such Person or its Affiliates, and (y) any investor or participant
in such Client (provided that, except
to the extent the Employee has actual knowledge of the identity of an investor
or participant therein, in the case of any Fund, an investor or participant
therein shall not be deemed a Present Client or Past Client (as applicable)
hereunder unless such investor or participant has (in the case of a Present
Client), or had (in the case of a Past Client), in the aggregate at least
$1,000,000 under management by the Employer and its Controlled Affiliates
(and/or any of their predecessors, in the case of a Past Client) (whether
through investments in Funds or otherwise));
3
(iii)
with respect to any Client that is a trust or similar entity, the term “Client”
shall include the settlor and each of the beneficiaries of such Client and the
Affiliates and Immediate Family members of any such Persons; and
(iv) with
respect to so-called “wrap programs”, “SMA programs” or similar programs, the
term “Client” shall include (x) the sponsor of such program, and (y) the
underlying participants in such program (provided that, except
to the extent the Employee has actual knowledge of the identity of a participant
therein, a participant therein shall not be deemed a Present Client or Past
Client (as applicable) hereunder unless such participant has (in the case of a
Present Client), or had (in the case of a Past Client), in the aggregate at
least $1,000,000 under management by the Employer and its Controlled Affiliates
(and/or any of their predecessors, in the case of a Past Client)).
“Closing Date” shall
mean the date on which the Effective Time occurs.
“Effective Time” shall
mean immediately prior to the Closing under the Merger Agreement.
“Excluded Client”
shall mean, subject to the general rules under the definition of Client, at any
particular time of determination, any Person who is a member of an Employee's
Immediate Family (or any investment account of which the Employee and/or members
of the Employee's Immediate Family are the sole beneficial owners).
“Fund” shall mean any
collective investment vehicle (whether open-ended or closed-ended), including
without limitation an investment company (whether or not registered under the
1940 Act), a general or limited partnership, a limited liability company, a
trust or a commingled fund, in any such case organized (or otherwise formed) in
any jurisdiction.
“Immediate Family”
shall mean, with respect to any natural person, (i) such person's spouse,
parents, grandparents, children, grandchildren and siblings, (ii) such person's
former spouse(s) and current spouses of such person's parents, grandparents,
children, grandchildren and siblings and (iii) estates, trusts, partnerships and
other entities of which a majority of the interests are held directly or
indirectly by the foregoing.
“Investment Management
Services” shall mean any services which involve: (i) the management,
administration, solicitation or distribution of an investment account or Fund
(or portions thereof or a group of investment accounts or Funds) for
compensation, (ii) the giving of advice with respect to the investment and/or
reinvestment of assets or funds (or any group of assets or funds) for
compensation, or (iii) otherwise acting as an “investment adviser” within the
meaning of the Advisers Act; including, without limitation, in each of the
foregoing cases, performing activities related or incidental
thereto.
4
“Past Client” shall
mean, subject to the general rules under the definition of Client, at any
particular time of determination, any Person who at any point prior to such time
of determination had been, directly or indirectly (and including without
limitation through one or more intermediaries such as a wrap sponsor or as an
investor or other participant in a Fund for which the Employer or any Controlled
Affiliate thereof (or any predecessor thereto) acts (or acted) as a sponsor,
adviser or sub-adviser or in a similar capacity), an advisee or investment
advisory customer or client of, or otherwise a recipient of Investment
Management Services from, (i) the Employer or any of its Controlled Affiliates
(or any predecessor thereto), and/or (ii) any shareholder, partner, member,
director, officer, employee, agent or consultant of the Employer or any of its
Controlled Affiliates (or any predecessor thereto) acting on behalf of the
Employer or any of its Controlled Affiliates (or any predecessor thereto), but
at such time is not an advisee or investment advisory customer or client of (or
otherwise a direct or indirect recipient of Investment Management Services from)
the Employer or any of its Controlled Affiliates (or any of the foregoing
Persons acting on their behalf); provided, however, that, from
and after the termination of the Employee's employment with the Employer and all
of its Controlled Affiliates, the term “Past Client” shall thereafter be limited
(solely with respect to the Employee) to those Past Clients who were (directly
or indirectly) advisees or investment advisory customers or clients of, or
recipients of Investment Management Services from, the Employer or any of its
Controlled Affiliates (or any predecessor thereto), or any shareholder, partner,
member, director, officer, employee, agent or consultant (or Persons acting in
any similar capacity) of any such Person, at any time during the two (2)
years immediately preceding the date of such termination of
employment.
“Potential Client”
shall mean, subject to the general rules under the definition of Client, at any
particular time of determination, any Person to whom (i) the Employer or any of
its Controlled Affiliates (or any predecessor thereto), and/or (ii)
any shareholder, partner, member, director, officer, employee, agent or
consultant (or Persons acting in any similar capacity) of any such Person,
acting on behalf of the Partnership or any of its Controlled Affiliates (or any
predecessor thereto) in any such case has within two (2) years prior to
such time of determination offered (whether by means of a personal meeting,
telephone call, letter, written proposal or otherwise) to serve as investment
adviser or otherwise provide Investment Management Services, but who is not at
such time an advisee or investment advisory customer of, or otherwise a
recipient of Investment Management Services from, the Employer or any of its
Controlled Affiliates (directly or indirectly); provided, however, that, from
and after the termination of the Employee's employment with the Employer and all
of its Controlled Affiliates, the term “Potential Client” shall thereafter be
limited (solely with respect to the Employee) to those Potential Clients to whom
such an offer to provide Investment Management Services was made at any time
during the two (2) years immediately preceding the date of such termination of
employment. The preceding sentence is meant to exclude advertising,
if any, through mass media in which the offer, if any, is available to the
general public, such as magazines, newspapers and sponsorships of public
events.
5
“Present Client” shall
mean, subject to the general rules under the definition of Client, at any
particular time of determination, any Person who is at such time of
determination, directly or indirectly (and including, without limitation,
through one or more intermediaries such as a wrap sponsor, or as an investor or
other participant in a Fund for which the Employer or any of its Controlled
Affiliates (or any predecessor thereto) acts as a sponsor, adviser or
sub-adviser or in a similar capacity), an advisee or investment advisory
customer of, or otherwise a recipient of Investment Management Services from,
(i) the Employer or any of its Controlled Affiliates (or any predecessor
thereto) and/or (ii) any shareholder, partner, member, director, officer,
employee, agent or consultant (or Persons acting in any similar capacity) of any
such Person acting on behalf of the Partnership or any of its Controlled
Affiliates (or any predecessor thereto).
“Prohibited Competition
Activity” shall mean performing any Investment Management Services; provided that
directly performing Investment Management Services for the Employee's own
account or the account of any Excluded Client without a fee or other
remuneration shall not be considered a Prohibited Competition
Activity.
Section
3. Benefits. The Employee shall participate,
to the extent he is eligible and in a manner and to an extent that is fair and
appropriate in light of his position and duties with the Employer at such time,
in all bonus, pension, profit sharing, group insurance or other fringe benefit
plans which the Employer may hereafter in its sole and absolute discretion make
available generally to its employees pursuant to the provisions of
Article III of the Restated LP Agreement, but the Employer will not be
required to establish any such program or plan. The Employee shall be
entitled to such vacations and to such reimbursement of expenses as the
Employer's policies allow, from time to time, to officers having comparable
responsibilities and duties.
Section
4. Termination of Employment.
(a) Notwithstanding
any other provision of this Employment Agreement or the Restated LP Agreement to
the contrary, the Employee agrees that his employment with the Employer shall in
no event be terminated during the Term other than solely in the following
circumstances:
(i) Upon
a termination of such employment by the Employer For Cause, effected at any time
by (x) the General Partner, or (y) the Management Committee acting by a
Committee Vote (with such Committee Vote being calculated for all purposes as if
the Employee were not a member of the Management Committee, if he is at the time
a member of such committee) and with the prior written consent of the General
Partner;
(ii) Upon
a termination of such employment by the Employer other than For Cause, effected
at any time by the Management Committee acting by a Committee Vote (with such
Committee Vote being calculated for all purposes as if the Employee were not a
member of the Management Committee, if he is at the time a member of such
committee) and with the prior written consent of the General
Partner;
(iii)
Upon a termination of such employment by the Employer following the Permanent
Incapacity of the Employee, effected at any time by (i) the General Partner, or
(ii) the Management Committee acting by a Committee Vote (with such Committee
Vote being calculated for all purposes as if the Employee were not a member of
the Management Committee, if he is at the time a member of such committee) and
with the prior written consent of the General Partner; or
6
(iv) Upon
a termination of such employment resulting from the death of the
Employee.
(b) The
Employee agrees that, in connection with the termination (or anticipated future
termination) of his employment with the Employer for any reason, the Employee
will use reasonable best efforts to transition to other employees of the
Employer (and its Controlled Affiliates) (as determined by the Management
Committee or the General Partner) all relationships with Clients and
sub-advisers in which such Employee Equityholder has a material role (with the
intent that such relationships are transitioned to continuing employees of the
Employer (and its Controlled Affiliates) by the time of such termination and
retained following such Employee’s departure from employment), and will
cooperate in good faith with all reasonable requests of the Management Committee
and/or the General Partner in connection therewith.
Section 5. All Business to
be the Property of the Employer; Assignment of Intellectual Property;
Confidentiality.
(a) The
Employee agrees that any and all presently existing investment advisory business
of the Employer and its Controlled Affiliates (or any predecessor thereto), and
all business developed by the Employer or any of its Controlled Affiliates (or
any predecessor thereto), including by the Employee or any other employee of the
Employer or any of its Controlled Affiliates (or any predecessor thereto),
including, without limitation, all investment methodologies, all investment
advisory contracts, fees and fee schedules, commissions, records, data, Client
lists, agreements, trade secrets, and any other incident of any business
developed by the Employer or any of its Controlled Affiliates (or any
predecessor thereto), or earned or carried on by the Employee for the Employer
or any of its Controlled Affiliates (or any predecessor thereto), and all trade
names, service marks and logos under which the Employer or its Controlled
Affiliates (or any predecessor thereto) do or have done business, and any
combinations or variations thereof and all related logos, are and shall be the
exclusive property of the Employer or such Controlled Affiliate thereof, as
applicable, for its or their sole use, and (where applicable) shall be payable
directly to the Employer or such Controlled Affiliate. In addition,
the Employee acknowledges and agrees that the investment performance of the
accounts managed by the Employer or any Controlled Affiliate thereof (or any
predecessor thereto) (the “Track Records”) was
attributable to the efforts of the team of professionals at the Employer or such
Controlled Affiliate thereof (or any predecessor thereto), and not to the
efforts of any single individual or subset of such team of professionals, and
that therefore such Track Records are and shall be the exclusive property of the
Employer or such Controlled Affiliate, as applicable (and not of the Employee or
any other Person). In addition, the Employee acknowledges and agrees
that the Employer and its Controlled Affiliates, or any of them, as the case may
be, own and control at all times their respective customer relationships with
their Clients. The Employee agrees that the Employee shall not, at
any time or in any way question, dispute, infringe or do any act inconsistent
with the Employer’s, or any of its Controlled Affiliates’ ownership of any of
the subject matter of this subsection. To the extent that any rights,
title and interest, including intellectual property rights, in and to any of the
subject matter of this subsection or any part thereof become vested in the
Employee notwithstanding the provisions of this subsection by virtue of or
pursuant to any of the laws in force in any part of the world, the Employee
hereby irrevocably assigns the said rights, title and interest in such subject
matter to the Employer or its designee.
7
(b) The
Employee acknowledges and agrees that any and all intellectual property,
including software, data, compilations, designs, materials, all other
copyrightable works, inventions (whether or not patentable), and proprietary
know-how, processes, and methods, developed or created by the Employee in the
course of the Employee’s employment with the Employer (“Employee
Equityholder-Created IP”), and any and all rights therein and in any
portion thereof, shall be owned exclusively by and for the benefit of the
Employer, its Controlled Affiliates, as applicable, and their respective
successors and assigns. To the extent any right, title and/or
interest in any Employee Equityholder-Created IP does not otherwise
automatically vest in the Employer, the Employee hereby assigns to the Employer
for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, all of the Employee’s entire right, title, and interest in
any Employee Equityholder-Created IP (and any portion thereof) throughout the
world, including all patent, copyright, trade secret, and other intellectual
property rights, all registration and renewal rights, all rights in works based
upon, derived from or incorporating the Employee Equityholder-Created IP, and
the right to xxx, counterclaim, and recover for past, present, and future
infringement of any Employee Equityholder-Created IP. If the Employee
has any rights in any Employee Equityholder-Created IP that cannot be assigned
to the Employer, the Employee hereby waives the enforcement of such rights,
including all moral rights and rights of attribution.
(c) The
Employee agrees to do any and all acts and execute any and all documents in such
manner and at such location as may be requested by the Employer (or its
successors or assigns) in its sole discretion, at any time during or after the
Employee’s employment with the Employer, to protect, perfect or enforce any of
the rights assigned, granted or promised to the Employer by this Employment
Agreement.
(d) The
Employee acknowledges that, in the course of performing services hereunder and
otherwise (including, without limitation, in the course of performing services
for any predecessor), the Employee has had, and will from time to time have,
access to information of a confidential or proprietary nature, including without
limitation, all confidential or proprietary investment methodologies, Track
Records, trade secrets, proprietary or confidential plans, Client identities and
information, Client lists, service providers, business operations or techniques,
records and data (“Intellectual
Property”) owned or used in the course of business by the Employer or its
Controlled Affiliates (or any predecessor thereto). The Employee
agrees always to keep secret and not ever publish, divulge, furnish, use or make
accessible to anyone (otherwise than in the regular business of the Employer and
its Controlled Affiliates or as required by court order or by law (on the
written advice of outside counsel)) any Intellectual Property of the Employer or
any Controlled Affiliate thereof (or any predecessor thereto) unless such
information can be shown to be in the public domain through no fault of the
Employee. At the termination of the Employee's services to the
Employer and its Controlled Affiliates, all data, memoranda, Client lists,
notes, programs and other papers, items and tangible media, and reproductions
thereof relating to the foregoing matters in the Employee's possession or
control, shall be returned to the Employer and remain in its
possession.
8
(e) The
Employee acknowledges that, in the course of entering into this Employment
Agreement, the Employee has had and, in the course of the operation of the
Employer and any Controlled Affiliates thereof, the Employee will from time to
time have, access to Intellectual Property owned by or used in the course of
business by the General Partner or AMG. The Employee agrees, for the
benefit of the Employer and its Members, and for the benefit of the General
Partner and AMG, always to keep secret and not ever publish, divulge, furnish,
use or make accessible to anyone (otherwise than at AMG's or the General
Partner's request or by court order or by law (on the written advice of outside
counsel)) any knowledge or information regarding Intellectual Property
(including, by way of example and not of limitation, the transaction structures
utilized by the General Partner or AMG) of the General Partner or AMG unless
such information can be shown to be in the public domain through no fault of the
Employee. At the termination of the Employee's service to the
Employer and its Controlled Affiliates, all data, memoranda, documents, notes
and other papers, items and tangible media, and reproductions thereof relating
to the foregoing matters in the Employee's possession or control shall be
returned to AMG and remain in its possession.
(f) The
provisions of this Section 5 and of Section 6 below shall not be deemed to
limit any of the rights of the Employer or the Partners under the Restated LP
Agreement or the Employee’s Partner Non-Competition Agreement or under
applicable law, but shall be in addition to the rights set forth in the Restated
LP Agreement and the Employee’s Partner Non-Competition Agreement and those
which arise under applicable law. The Employee acknowledges that his
obligations under this Section 5 and Section 6 of this Employment Agreement
shall survive the termination of his employment with the Employer and its
Controlled Affiliates (regardless of the manner of such
termination). The Employee shall not enter into any agreement or
arrangement which is inconsistent with the terms and provisions of this
Employment Agreement.
Section 6. Non-Competition
and Other Restrictive Covenants as a Key Employee.
(a) The
Employee agrees, for the benefit of the Employer, the General Partner and their
respective Affiliates, that the Employee shall not, directly or indirectly
(whether individually or as owner, part owner, shareholder, partner, member,
director, officer, trustee, employee, agent, consultant or in any other
capacity, on behalf of himself or any other Person (other than the Employer or a
Controlled Affiliate thereof while employed by the Employer)), from the date of
this Agreement until two (2) years following the termination of the Employee's
employment with the Employer and all of its Controlled Affiliates for any
reason, engage in any Prohibited Competition Activity.
(b) In
addition to (and not in limitation of) the provisions of Section 6(a), the
Employee agrees, for the benefit of the Employer, the General Partner and their
respective Affiliates, that the Employee shall not, directly or indirectly
(whether individually or as owner, part owner, shareholder, partner, member,
director, officer, trustee, employee, agent, consultant or in any other
capacity, on behalf of himself or any other Person (other than the Employer or a
Controlled Affiliate thereof while employed by the Employer)), from the date of
this Agreement until two (2) years following the termination of the Employee's
employment with the Employer and all of its Controlled Affiliates for any
reason:
9
(i) Provide
Investment Management Services to any Person that is a Client (which includes
Past Clients, Present Clients and Potential Clients) for whom the Employee
provided (directly or indirectly) any Investment Management Services while
employed by the Employer or any Controlled Affiliate thereof (or any predecessor
thereto), or whom the Employee solicited or otherwise had material contact with
through or on behalf of the Employer or any Controlled Affiliate thereof (or any
predecessor thereto);
(ii) Provide
Investment Management Services to any Person that is a Client (which includes
Past Clients, Present Clients, and Potential Clients) with respect to which the
Employee had access to confidential or proprietary information of the Employer
or any Controlled Affiliate thereof (or any predecessor thereto) while employed
by the Employer or any Controlled Affiliate thereof (or any predecessor thereto)
(including without limitation any Person that was (or an Affiliate of which was)
a Present Client as of the Closing Date); or
(iii) Provide
Investment Management Services to any other Person that is a Client (which
includes Past Clients, Present Clients, and Potential Clients);
provided, however, that this
Section 6(b) shall not be applicable to Clients (including Potential Clients)
who are also Excluded Clients.
(c) In
addition to (and not in limitation of) the provisions of Sections 6(a) and 6(b),
the Employee agrees, for the benefit of the Employer, the General Partner and
their respective Affiliates, that the Employee shall not, directly or indirectly
(whether individually or as owner, part owner, shareholder, partner, member,
director, officer, trustee, employee, agent, consultant or in any other
capacity, on behalf of himself or any other Person (other than the Employer or a
Controlled Affiliate thereof while employed by the Employer)), from the date of
this Agreement until two (2) years following the termination of the Employee's
employment with the Employer and all of its Controlled Affiliates for any
reason:
(i) Solicit
or induce (whether directly or indirectly) any Person for the purpose (which
need not be the sole or primary purpose) of (A) causing any funds or
accounts with respect to which the Employer or any of its Controlled Affiliates
provides Investment Management Services to be withdrawn from such management or
other services, or (B) causing any Client (including any Potential Client)
not to engage the Employer or any of its Controlled Affiliates to provide
Investment Management Services for any additional funds or accounts (or
otherwise attempt to cause any of the foregoing to occur);
(ii) Otherwise
divert or take away (or seek to divert or take away) any funds or investment
accounts with respect to which the Employer or any of its Controlled Affiliates
provides Investment Management Services; or
10
(iii) Contact
or communicate with, whether directly or indirectly, any Past Clients, Present
Clients or Potential Clients in connection with providing Investment Management
Services to such Persons;
provided, however, that this
Section 6(c) shall not be applicable to Clients (including Potential Clients)
who are also Excluded Clients.
(d) In
addition to (and not in limitation of) the provisions of Sections 6(a), 6(b) and
6(c), the Employee agrees, for the benefit of the Employer, the General Partner
and their respective Affiliates, that the Employee shall not, directly or
indirectly (whether individually or as owner, part owner, shareholder, partner,
member, director, officer, trustee, employee, agent, consultant or in any other
capacity, on behalf of himself or any other Person (other than the Employer or a
Controlled Affiliate thereof while employed by the Employer)), from the date of
this Agreement until two (2) years following the termination of the Employee's
employment with the Employer and all of its Controlled Affiliates for any
reason:
(i)
Solicit or induce, or attempt to solicit or induce, directly or indirectly, any
employee or agent of, or consultant to, the Employer or any of its Controlled
Affiliates to terminate its, his or her relationship therewith;
(ii) Hire
any employee or agent of, or consultant to, the Employer or any of its
Controlled Affiliates (or any predecessor thereto), or any person who was such
an employee, agent or consultant at any time during the two (2) year period
preceding (I) such action by the Employee (in the case of any such action taken
by the Employee while he remains employed by the Employer or any of its
Controlled Affiliates) or (II) the termination of the Employee's employment with
the Employer and its Controlled Affiliates (in the case of any such action taken
by the Employee following termination of his employment); or
(iii) Work
in any enterprise involving Investment Management Services with any employee,
agent or consultant or former employee, agent or consultant, of the Employer or
any of its Controlled Affiliates (or any predecessor thereto) who was employed
by or acted as an agent or consultant to the Employer or any of its Controlled
Affiliates (or any predecessor thereto) at any time during the two (2) year
period preceding (I) such action by the Employee (in the case of any such action
taken by the Employee while he remains employed by the Employer or any of its
Controlled Affiliates) or (II) the termination of the Employee's employment with
the Employer and its Controlled Affiliates (in the case of any such action taken
by the Employee following termination of his employment);
(but
excluding, for all purposes of this sentence, secretaries and persons holding
other similar ministerial positions).
(e) Notwithstanding
the provisions of Sections 6(a), 6(b), 6(c) and 6(d), the Employee may make
passive personal investments in an enterprise (whether or not competitive with
AMG or the Employer) the shares or other equity interests of which are publicly
traded, provided his holding
therein together with any holdings of his Affiliates and members of his
Immediate Family and their Affiliates, are less than five percent (5%) of
the outstanding shares or comparable interests in such entity.
11
(f) The
Employee, the Employer and the General Partner agree that (x) the
non-competition and other restrictive covenants set forth in this Section 6 have
been entered into by the Employee in recognition of (and in connection with) his
capacity as a key employee of the Employer (and its predecessors), and as a
condition precedent to the obligation of AMG to consummate the transactions
contemplated by the Merger Agreement and the Restated LP Agreement, and (y) the
periods of time and the unlimited geographic area applicable to the covenants
set forth in this Section 6 (and all other aspects of the scope of such
covenants) are reasonable in view of (without limitation):
(i) The
geographic scope and nature of the businesses in which the Employer and its
Controlled Affiliates are (or any predecessors thereto were)
engaged;
(ii) The
Employee's role as a key employee of the Employer (and its
predecessors);
(iii) The
Employee’s status as a limited partner of the Employer (directly and/or through
his related Limited Partner, as applicable), and his fiduciary and other duties
in connection therewith;
(iv)
The Employee's receipt of the payments described in Section 1(b)
above;
(v)
The Employee's knowledge of the Employer's and its Controlled
Affiliates’ (and any predecessors’) businesses and the confidential and
proprietary information thereof, including without limitation as a key employee
thereof; and
(vi) The
Employee's relationships with the Employer's and its Controlled Affiliates’ (and
any predecessors’) Clients, including without limitation as a key employee of
their businesses.
However,
the parties hereto agree that, if any such period of time or geographic area (or
other aspect of the scope of such covenants) should be adjudged unreasonable in
any judicial or arbitral proceeding, then such period of time shall be reduced
by such number of months, or such geographic area shall be reduced by
elimination of such portion of such area, or such other aspect of the scope of
such covenants shall be reduced in respect of such portion thereof (as
applicable), in any such case as is deemed unreasonable, such that such
covenants may be enforced during such maximum period of time, in such maximum
geographic area, and with such maximum scope, as is adjudged to be
reasonable.
(g) The
Employee agrees (on behalf of himself, his agents, and other parties under his
control or influence) while he is employed by the Employer and thereafter not to
make any communication to any third party (including, by way of example and not
of limitation, any Client (including Potential Clients) or employee of the
Employer, AMG or any Affiliate of AMG) which would, or is reasonably likely to,
disparage, create a negative impression of, or in any way be harmful to the
business or business reputation of the Employer, AMG, any of AMG's Affiliates,
or their respective successors and assigns, or any of the then-current or former
officers, directors, partners, members or employees of any of the
foregoing.
12
(h) The
Employee acknowledges and agrees that the restrictive covenants and other
agreements of the Employee contained in this Employment Agreement are an
essential part of this Employment Agreement. The Employee further
represents, warrants and agrees that the Employee has been fully advised by, or
has had the opportunity to be fully advised by, counsel in connection with the
negotiation, preparation, execution and delivery of this Employment Agreement
and the transactions contemplated by this Employment Agreement and the other
Transaction Documents (as defined in the Merger
Agreement). Accordingly, the Employee agrees to be bound by the
restrictive covenants and other agreements of the Employee contained in this
Employment Agreement, it being the intent and spirit of the parties that the
restrictive covenants and other agreements of the Employee contained in this
Employment Agreement shall be valid and enforceable in all
respects.
Section
7. Notices. All notices hereunder shall be in
writing and shall be delivered, sent by recognized overnight courier or mailed
by registered or certified mail, postage and fees prepaid, to the party to be
notified at the party's address shown below. Notices which are hand
delivered or delivered by recognized overnight courier shall be effective on
delivery. Notices which are mailed shall be effective on the third
day after mailing.
(i)
If to the Employer:
Aston
Asset Management, LP
000 Xxxxx
XxXxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn: Xxxxxx
Xxxxxx
Facsimile
No: (000) 000-0000
with a
copy to:
Affiliated
Managers Group, Inc.
000 Xxxx
Xxxxxx
Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx
Xxxxxxxx, General Counsel
Facsimile
No.: (000) 000-0000
(ii) if
to the Employee:
c/o Aston
Asset Management, LP
000 Xxxxx
XxXxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxx Xxxxxx
Facsimile
No.: (000) 000-0000
13
(iii) if
to the General Partner:
c/o
Affiliated Managers Group, Inc.
000 Xxxx
Xxxxxx
Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx
Xxxxxxxx III, General Counsel
Facsimile
No.: (000) 000-0000
unless
and until notice of another or different address shall be given as provided
herein.
Section 8. Third-Party Beneficiary;
Assignability. AMG is an intended third-party beneficiary of
the provisions of this Employment Agreement. This Employment
Agreement may be assigned by the Employer, AMG and/or the General Partner
without the consent of the Employee (but in the case of the Employer, only to
one or more successors to all or substantially all of the business of the
Employer). This Employment Agreement shall be binding upon and inure
to the benefit of the Employer, the General Partner and their successors and
permitted assigns. This Employment Agreement shall not be assignable
by the Employee. For the avoidance of doubt, the General Partner as a
party hereto shall be deemed to be a direct beneficiary of each of the covenants
and agreements of the Employee hereunder, and the General Partner shall be
entitled to enforce all such covenants and agreements on its own
behalf.
Section 9. Entire
Agreement. This Employment Agreement, together with the other
Transaction Documents (as defined in the Merger Agreement), contain the entire
agreement among the parties hereto with respect to the subject matter hereof,
and supersede all prior oral or written agreements between the Employer or any
Controlled Affiliate thereof (or any predecessor thereto) and the Employee with
respect to the subject matter hereof, including without limitation any oral
agreements relating to compensation. In the event of any conflict
between the provisions hereof and of the Restated LP Agreement, the provisions
hereof shall control.
Section 10. Remedies Upon
Breach.
(a) In
the event that the Employee breaches any of the provisions of this Employment
Agreement (or otherwise violates any of the stated terms of such provisions),
including without limitation following the termination of the Employee's
employment with the Employer and its Controlled Affiliates, then in such event,
in addition to (and not in limitation of) such other remedies as the Employer
and the General Partner may have against the Employee:
(i) The
Employee and any related Limited Partners thereof shall forfeit their right to
receive any payment for their Partnership Points under the Restated LP
Agreement, although they shall cease to be Limited Partners in accordance with
the provisions of the Restated LP Agreement;
(ii) Neither
AMG nor the General Partner (or any of its assignees under the Restated LP
Agreement) shall have any further obligations under any Promissory Note or
Liquidation Date Consideration issued to the Employee or any related Limited
Partner thereof pursuant to the provisions of the Restated LP Agreement;
and
14
(iii) The
Employer shall be entitled to (and, at the direction of the General Partner,
shall), and the General Partner and its Affiliates shall be entitled to, in each
such case withhold and cancel any other payments to which the Employee or any
related Limited Partner or other Affiliate thereof otherwise would be entitled
(whether pursuant to this Agreement or any other agreement, plan or policy) to
offset damages resulting from such breach.
The
Employee agrees that the remedies provided in this Section 10(a) with respect to
breaches (or other violations) of the provisions of this Employment Agreement
are reasonably related to anticipated losses that the Employer and the General
Partner would suffer upon a breach (or other violation) of such provisions by
the Employee.
(b) The
Employee recognizes and agrees that the Employer and the General Partner's
remedies at law for any breach (or other violation), or threatened breach (or
other violation), of the provisions of this Employment Agreement would be
inadequate, and that for any breach or threatened breach (or other violation) of
such provisions by the Employee, the Employer and the General Partner shall, in
addition to such other remedies as may be available to them at law or in equity
or as provided in this Employment Agreement, each be entitled to injunctive
relief and enforcement of their respective rights by an action for specific
performance to the extent permitted by law (and without having to post bond),
and to an award of attorney’s fees and costs incurred in connection with
securing any of their rights hereunder. Should the Employee engage in
any activities prohibited by this Employment Agreement, he agrees to pay over to
the Employer all compensation received in connection with such
activities. Such payment shall not impair any other rights or
remedies of the Employer or the General Partner or affect the obligations or
liabilities of the Employee under this Employment Agreement or any other written
agreement to which he is a party or under applicable law.
Section 11. Dispute
Resolution. Any controversy, claim or dispute arising out of
or relating to this Employment Agreement or the breach hereof or otherwise
arising out of the Employee's employment or the termination of that employment
(including, without limitation, any claims of unlawful employment discrimination
whether based on age or otherwise) shall, to the fullest extent permitted by
law, be settled by binding arbitration in accordance with the provisions of
Section 10.6 of the Restated LP Agreement.
Section 12. Consent to
Jurisdiction. For the purposes of any judicial proceedings
ancillary to an arbitration under Section 11 of this Agreement, each of the
parties hereto hereby consents to personal jurisdiction, service of process and
venue in the federal and state courts sitting in Illinois and hereby irrevocably
agrees that any such judicial proceedings may be heard and determined in any
such state court or, to the extent permitted by law, in such federal
court. Each of the parties hereto hereby irrevocably consents to the
service of process in any such proceedings by the mailing by certified mail of
copies of any service or copies of the summons and complaint and any other
process to such party at the address specified in Section 7
hereof. The parties hereto agree that a final judgment in any such
proceedings shall be conclusive and may be enforced in other jurisdictions by
suit or in any other manner permitted by law, and nothing contained herein shall
affect the right of a party to service legal process or to bring any action or
proceeding in the courts of other jurisdictions (subject to the provisions of
Section 11 hereof).
15
Section 13. Third-Party Agreements
and Rights.
(a) The
Employee hereby confirms that the Employee is not bound by the terms of any
agreement with any previous employer or other party which restricts in any way
the Employee's use or disclosure of information or the Employee's engagement in
any business. The Employee represents to the Employer that the
Employee's execution of this Employment Agreement, the Employee's employment
with the Employer and the performance of the Employee's proposed duties for the
Employer will not violate any obligations the Employee may have to any such
previous employer or other party. In the Employee's work for the
Employer, the Employee will not disclose or make use of any information in
violation of any agreements with or rights of any such previous employer or
other party, and the Employee will not bring to the premises of the Employer any
copies or other tangible embodiments of non-public information belonging to or
obtained from any such previous employer or other party.
(b) The
Employee agrees to provide written notice of the provisions of Section 6 of this
Agreement (and shall provide a copy of such notice concurrently to the Employer
and the General Partner), together with a copy thereof, to any enterprise
engaged in whole or in part in the provision of Investment Management Services
for which the Employee acts as an employee or otherwise becomes associated
following his termination of employment with the Employer (prior to acting in
such capacity or commencing such association, as applicable).
Section 14. Litigation and
Regulatory Cooperation. During and after the Employee's
employment, the Employee shall cooperate fully with the Employer in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Employer or the General Partner or
their Affiliates which relate to events or occurrences that transpired while the
Employee was employed by the Employer (or any predecessor
thereto). The Employee's full cooperation in connection with such
claims or actions shall include, but not be limited to, being available to meet
with counsel to prepare for discovery or trial and to act as a witness on behalf
of the Employer or the General Partner or their Affiliates at mutually
convenient times. During and after the Employee's employment, the
Employee also shall cooperate fully with the Employer, the General Partner and
their Affiliates in connection with any investigation or review of any federal,
state or local regulatory, quasi-regulatory or self-governing authority
(including, without limitation, the Securities and Exchange Commission) as any
such investigation or review relates to events or occurrences that transpired
while the Employee was employed by the Employer (or any predecessor
thereto). The Employer shall reimburse the Employee for any
reasonable out-of-pocket expenses incurred in connection with the Employee's
performance of obligations pursuant to this Section 14.
16
Section 15. Waivers and
Further Agreements. Neither this Employment Agreement nor any
term or condition hereof, including without limitation the terms and conditions
of this Section 15, may be waived or modified in whole or in part as against the
General Partner, the Employer or the Employee, except by written instrument
executed by or on behalf of each of the parties hereto other than the party
seeking such waiver or modification, expressly stating that it is intended to
operate as a waiver or modification of this Employment Agreement or the
applicable term or condition hereof, provided that any action under this Section
15 on behalf of the Employer may be taken only with the prior written approval
of the General Partner (as the general partner of the Employer). Each
of the parties hereto agrees to execute all such further instruments and
documents and to take all such further action as the other party may reasonably
require in order to effectuate the terms and purposes of this Employment
Agreement.
Section 16. Amendments;
Employer's Consents. This Employment Agreement may not be
amended, nor shall any change, modification, consent, or discharge be effected
except by written instrument executed by or on behalf of the party against whom
enforcement of any change, modification, consent or discharge is sought, provided that any
action under this Section 16 on behalf of the Employer may be taken only with
the prior written approval of the General Partner (as the general partner of the
Employer). Whenever under this Agreement the consent of the Employer
is required, that consent shall only be effective if given with the prior
written consent of the General Partner (as the general partner of the
Employer).
Section
17. Severability. If any provision of this
Employment Agreement shall be adjudged in any judicial or arbitral proceeding to
be invalid, inoperative or unenforceable in any jurisdiction or jurisdictions
because of conflicts with any constitution, statute, rule or public policy or
for any other reason, such circumstance shall not have the effect of rendering
the provision in question unenforceable in any other jurisdiction or in any
other case or circumstance or of rendering any other provisions herein contained
unenforceable to the extent that such other provisions are not themselves
actually in conflict with such constitution, statute or rule of public policy,
and this Employment Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, or unenforceable provision
had never been contained herein and such provision reformed so that it would be
enforceable to the maximum extent permitted in such jurisdiction or in such
case. Moreover, if any one or more of the provisions contained in
this Employment Agreement shall be adjudged in any judicial or arbitral
proceeding to be excessively broad as to duration, activity or subject (or in
any other respect), such provisions shall be construed by limiting and reducing
them so as to be enforceable to the maximum extent allowed by applicable
law. For the avoidance of doubt, the provisions of this Employment
Agreement are severable, and no breach of any provision of this Employment
Agreement (or any other Transaction Document, as defined in the Merger
Agreement) or any other purported violation of law by the Employer or the
General Partner shall operate to excuse the Employee’s obligation to fulfill his
covenants and agreements hereunder (including without limitation the
requirements of Sections 5 and 6 hereof). For the further avoidance
of doubt, the Employee understands that his employment with the Employer is
subject to material changes (including without limitation in respect of the
nature of his duties and/or compensation), and he agrees that no such changes
shall operate to extinguish any of his obligations under this Employment
Agreement or to require the re-signing of this Employment
Agreement.
17
Section 18. Governing
Law. This Employment Agreement shall be governed by and
construed and enforced in accordance with the laws of Illinois which apply to
contracts executed and performed solely in Illinois, and without regard to any
rule or canon of construction which interprets agreements against the drafting
party.
Section
19. Counterparts. This Employment Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
agreement. Signatures delivered by facsimile or electronic PDF file
shall constitute original signatures.
[Signature
Page Follows]
18
IN
WITNESS WHEREOF, the parties have executed this Employment Agreement as of the
date first above written.
|
By:
|
/s/ Xxxxxxx X. Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
||
|
Title:
President and Chief Executive Officer
|
||
|
MANOR
LLC
|
||
|
By:
|
Affiliated
Managers Group, Inc.,
|
|
|
Its
Manager and Sole Member
|
||
|
By:
|
/s/ Xxx Xxxxxx
|
|
|
Name:
Xxx Xxxxxx
|
||
|
Title:
Executive Vice President
|
||
|
ASTON
ASSET MANAGEMENT, LLC
|
||
|
By:
|
Highbury
Financial Inc., its Sole Member
|
|
|
By:
|
/s/ Xxxxxxx X.
Xxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxx
|
||
|
Title:
President and Chief Executive Officer
|
||
|
EMPLOYEE
|
||
| /s/ Xxxxxx Xxxxxx | ||
| Xxxxxx Xxxxxx | ||
[Employment
Agreement]
