HIGHBURY FINANCIAL INC. AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
EXHIBIT
10.2
AMENDED
AND RESTATED INVESTOR RIGHTS AGREEMENT
This
Amended and Restated Investor Rights Agreement (the “Agreement”) dated as
of September 14, 2009, is made by and among Highbury Financial Inc., a
Delaware corporation (the “Company”), the
parties named on Schedule A hereto as
Investors (individually, an “Investor” and
collectively, the “Investors”) and the
parties named on Schedule A hereto as
Management Stockholders (the “Management
Stockholders”).
WHEREAS,
as a condition to, and in connection with, the First Exchange, the Company, the
Investors and the Management Stockholders entered into an Investor Rights
Agreement as of August 10, 2009 (the “Investor Rights
Agreement”);
WHEREAS,
it is a condition to the Second Exchange that the Company and the Investors
amend and restate the Investor Rights Agreement as hereinafter
provided.
NOW,
THEREFORE, in consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound, hereby agree to amend and restate the
Investor Rights Agreement as follows:
ARTICLE
I
“Agreement” means this
Agreement, as amended, restated, supplemented, or otherwise modified from time
to time.
“Certificate of
Designation” means the Certificate of Designation with respect to the
Series B Preferred Stock.
“Commission” means the
Securities and Exchange Commission, or any other federal agency then
administering the Securities Act or the Exchange Act.
“Common Stock” is
defined in the recitals to this Agreement.
“Company” is defined
in the preamble to this Agreement.
“Conversion Shares”
means any shares of Common Stock issued upon the conversion of Series B
Preferred Stock and the Second Exchange Shares.
“Demand Registration”
is defined in Section 1.02(a).
“Demanding Holder” is
defined in Section 1.02(a).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in effect at
the time.
“First Exchange
Agreement” is defined in the recitals to this Agreement.
“First Exchange” is
defined in the recitals to this Agreement.
“Form S-3” is defined
in Section 1.04.
“Founders Registration Rights
Agreement” means that certain Registration Rights Agreement dated January
25, 2006 among the Company and the Investors named on the signature pages
thereto, as amended from time to time.
“Indemnified Party” is
defined in Section 1.10(c).
“Indemnifying Party”
is defined in Section 1.10(c).
“Investor” is defined
in the preamble to this Agreement.
“Investor Indemnified
Party” is defined in Section 1.10(a).
“Investor Rights
Agreement” is defined in the recitals to this Agreement.
“Management
Stockholders” is defined in the preamble to this Agreement.
“Maximum Number of
Shares” is defined in Section 1.02(d).
“Piggy-Back
Registration” is defined in Section 1.03(a).
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“Register,” “registered” and
“registration”
mean a registration effected by preparing and filing a registration statement or
similar document in compliance with the requirements of the Securities Act, and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable
Securities” means all of the Conversion Shares, owned or held by
Investors, together with any warrants, shares of capital stock or other
securities of the Company issued as a dividend or other distribution with
respect to or in exchange for or in replacement of shares of Common Stock that
are Registrable Securities. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when: (a) a
Registration Statement, with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act; (c) such securities
shall have ceased to be outstanding, or (d) such Registrable Securities become
eligible to be publicly sold without limitation as to amount or manner of sale
pursuant to Rule 144 (or any successor provision) under the Securities
Act.
“Registration
Statement” means a registration statement filed by the Company with the
Commission in compliance with the Securities Act and the rules and regulations
promulgated thereunder for a public offering and sale of Common Stock (other
than a registration statement on Form S-4 or Form S-8, or their successors, or
any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another entity).
“Second Exchange” is
defined in the recitals to this Agreement.
“Second Exchange
Agreement” is defined in the recitals to this Agreement.
“Second Exchange
Shares” is defined in Section 2.01.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
“Series B Preferred
Stock” is defined in the recitals to this Agreement.
“Underwriter” means a
securities dealer who purchases any Registrable Securities as principal in an
underwritten offering and not as part of such dealer’s market-making
activities.
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(i) If
the registration is undertaken for the Company’s account: (A) first, the
shares of Common Stock or other securities that the Company desires to sell that
can be sold without exceeding the Maximum Number of Shares; (B) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock, if any, including the
Registrable Securities, as to which registration has been requested pursuant to
written contractual piggy-back registration rights of security holders (pro rata
in accordance with the number of shares of Common Stock which each such person
has actually requested to be included in such registration, regardless of the
number of shares of Common Stock with respect to which such persons have the
right to request such inclusion) that can be sold without exceeding the Maximum
Number of Shares; and
(ii) If
the registration is a “demand” registration
undertaken at the demand of persons other than the holders of Registrable
Securities pursuant to written contractual arrangements with such persons, (A)
first, the shares of Common Stock for the account of the demanding persons that
can be sold without exceeding the Maximum Number of Shares; (B) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of
Shares; and (C) third, to the extent that the Maximum Number of Shares has
not been reached under the foregoing clauses (A) and (B), the shares of Common
Stock as to which registration has been requested pursuant to the terms of the
Founders Registration Rights Agreement; (C) fourth, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses (A),
(B) and (C), the Registrable Securities as to which registration has been
requested under this Section 1.03 (pro rata in accordance with the number of
shares of Registrable Securities held by each such holder) and (E) fifth, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B), (C) and (D), the shares of Common Stock, if any, as
to which registration has been requested pursuant to written contractual
piggy-back registration rights which other shareholders desire to sell that can
be sold without exceeding the Maximum Number of Shares.
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(i) If
the indemnification provided for in the foregoing Section 1.10(a), (b) and (c)
is unavailable to any Indemnified Party in respect of any loss, claim, damage,
liability or action referred to herein, then each such Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such loss, claim, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnified Parties and the Indemnifying Parties in connection with
the actions or omissions which resulted in such loss, claim, damage, liability
or action, as well as any other relevant equitable
considerations. The relative fault of any Indemnified Party and any
Indemnifying Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(ii) The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 1.10(d) were determined by pro rata allocation or by
any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding Section
1.10(d)(i). The amount paid or payable by an Indemnified Party as a
result of any loss, claim, damage, liability or action referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 1.10(d), no
holder of Registrable Securities shall be required to contribute any amount in
excess of the dollar amount of the net proceeds (after payment of all
underwriting fees, discounts, commissions and taxes) actually received by such
holder from the sale of Registrable Securities which gave rise to such
contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Section
1.11. Rule
144. The Company covenants that it shall file any filings
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission but not Rule
144A.
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Section
1.12. Requested
Consent. The Company agrees to use commercially reasonable
efforts to obtain the necessary consents pursuant to the Founders Registration
Rights Agreement for the rights of the holders of Registrable Securities to
include shares in a “demand” registration pursuant to Section 1.03(b) pari passu
(rather than subordinate) to the rights with respect to shares of Common Stock
exercising piggy-back rights pursuant to the Founders Registration Rights
Agreement. The Company shall provide the Investors with prompt
written notice at such time as it has obtained such consent. Upon
obtaining such consent, Section 1.03(b) shall automatically, and without further
action by the Company or any Investor, be amended in its entirety to read as
follows:
“(b)
If the registration is a “demand” registration
undertaken at the demand of persons other than the holders of Registrable
Securities pursuant to written contractual arrangements with such persons, (A)
first, the shares of Common Stock for the account of the demanding persons that
can be sold without exceeding the Maximum Number of Shares; (B) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of
Shares; and (C) third, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clauses (A) and (B), the shares of Common Stock
as to which registration has been requested pursuant to the terms of the
Founders Registration Rights Agreement and the Registrable Securities to which
registration has been requested under this Section 1.03 (pro rata in accordance
with the number of shares of Registrable Securities and Common Stock held by
each such holder) and (D) fourth, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (A), (B) and (C), the
shares of Common Stock, if any, as to which registration has been requested
pursuant to written contractual piggy-back registration rights which other
shareholders desire to sell that can be sold without exceeding the Maximum
Number of Shares.”
ARTICLE
II
Section
2.01. Transferability of
Shares. Subject to the provisions of Section 2.03 below, no
shares of Series B Preferred Stock or shares of Common Stock issued pursuant to
the Second Exchange Agreement (“Second Exchange
Shares”) may, directly or indirectly, be sold, assigned, transferred,
gifted or exchanged, nor may any Investor (or transferee thereof) offer to do
any of the foregoing (each, a “Transfer”), nor may
any direct or indirect interest in any Investor be, directly or indirectly,
Transferred by any holder thereof, nor may any stockholder or other holder of an
ownership interest in Investor which is not a natural person offer to do any of
the foregoing, and no Transfer by an Investor (or transferee thereof) or holder
of an ownership interest in an Investor shall be binding upon the Company or any
Investor, in each case unless (i) such Transfer is expressly permitted by
this Article II and (ii) the Company receives an executed copy of the documents
effecting such Transfer and such documents are in compliance with the
requirements of this Article II and otherwise in form and substance reasonably
satisfactory to the Company. No shares of Series B Preferred
Stock or Second Exchange Shares may be pledged, hypothecated, optioned or
encumbered, nor may any direct or indirect ownership interests in an Investor
may be pledged, hypothecated, optioned or encumbered, nor may any offer to do
any of the foregoing be made, without the prior written consent of the Company
in its sole discretion. Each Investor agrees to comply, and to cause
its owners and transferees to comply (as applicable), with the provisions of
this Article II. An Investor’s shares of Series B Preferred
Stock and Second Exchange Shares (or, in the case of an Investor which is not a
natural person, direct (but in no event indirect) ownership interests in such
Investor) may be Transferred solely:
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(a) with
the prior written consent of the Company, which consent may be granted or
withheld by the Company in its reasonable discretion;
(b) (i)
upon the death of such Investor (in the case of an Investor who is a natural
person), with respect to shares of Series B Preferred Stock and Second
Exchange Shares held by such Investor, or upon the death of a direct holder of
ownership interests in such Investor (in the case of an Investor which is not a
natural person), with respect to the direct ownership interests in such Investor
held by such deceased holder, in either such case such specified ownership
interests may be Transferred by will or the laws of descent and distribution
(without the consent of the Company, but, in all such cases of Transfers of
Series B Preferred Stock, subject to the provisions regarding redemption of such
shares of Series B Preferred Stock by the Company pursuant to Section 10 of
the Certificate of Designation for the Series B Preferred Stock, which shall
continue to be binding upon the shares of Series B Preferred Stock of such
Investor (and the holders thereof) notwithstanding such death) or (ii) in
connection with the appointment of a legal guardian or conservator for such
Investor or a direct holder of equity interests therein (as applicable) in the
event of incapacity, to the extent such legal guardian or conservator succeeds
as a matter of law to record ownership of such shares of Series B Preferred
Stock or Second Exchange Shares or direct ownership interests (as applicable)
and provided that such Investor or holder of direct ownership interests (as
applicable) remains the beneficial owner of such interests; or
(c) (i)
a Management Stockholder may Transfer his or her shares of Series B
Preferred Stock and Second Exchange Shares, or (ii) direct ownership interests
in an Investor which is not a natural person may be Transferred by its related
Management Stockholder, in either such case to members of such Management
Stockholder’s Immediate Family (or trusts for the benefit of such Management
Stockholder or the members of such Management Stockholder’s Immediate Family,
provided that any such trust does not require or permit distribution of such
interests other than to such Management Stockholder, members of such Management
Stockholder’s Immediate Family, or such Management Stockholder’s related
original Investor that is a party hereto).
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provided
that in the case of (b) or (c) above, (i) the transferee first enters into an
agreement with the Company in form and substance reasonably satisfactory to the
Company agreeing to be bound by the provisions of this Agreement, and (ii)
whether or not the transferee enters into such an agreement, such shares of
Series B Preferred Stock, Second Exchange Shares and ownership interests in
such Investor (as applicable) shall thereafter remain subject to this
Agreement. The transferees pursuant to the provisions of Section
2.01(b) and (c) hereof, and, to the extent set forth in any consent of the
Company pursuant to Section 2.01(a), the transferees pursuant to Section 2.01(a)
are referred to as “Permitted
Transferees”.
(d)
For purposes of this Section 2.01, the following terms shall have the meanings
set forth below:
(i) “Affiliate” shall
mean, with respect to any Person (herein the “first party”), any
other Person that directly or indirectly controls, or is controlled by, or is
under common control with, such first party. The term “control” as used
herein (including the terms “controlled by” and
“under common control
with”) means the possession, directly or indirectly, of the power to (a)
vote twenty-five percent (25%) or more of the outstanding voting securities of
such Person, or (b) otherwise direct the management or policies of such
Person by contract or otherwise (other than solely as a director of a
corporation (or similar entity) that has five (5) or more
directors).
(ii) “Controlled Affiliate”
shall mean, with respect to a Person, any Affiliate of such Person under its
“control,” as
the term “control” is defined
in the definition of Affiliate.
(iii) “Immediate Family”
shall mean, with respect to any natural person, (a) such person’s spouse,
parents, grandparents, children, grandchildren and siblings, (b) such person’s
former spouse(s) and current spouses of such person’s children, grandchildren
and siblings and (c) estates, trusts, partnerships and other entities of which
substantially all of the interests are held directly or indirectly by the
foregoing.
(iv) “Management
Stockholder(s)” shall mean (a) in the case of any Investor which is a
natural person, such Investor, and (b) in the case of any Investor which is not
a natural person, that certain employee of Aston (or one of its Controlled
Affiliates) who is the owner of the issued and outstanding capital stock of, or
other equity interests in, such Investor and is listed as such on Schedule A hereto
(including any such employee after such employee has transferred any of his or
her interest in such Investor to a Permitted Transferee).
(v) “Person” means any
individual, partnership (limited or general), corporation, limited liability
company, limited liability partnership, association, trust, joint venture,
unincorporated organization or other entity.
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(a) any
or all Second Exchange Shares at any time after the first to occur of
(i) immediately prior to the consummation of a Change of Control, (ii) the
occurrence of a Reduction in AUM or (iii) the termination of employment with
Aston Asset Management LLC (or its Controlled Affiliates) of the Management
Stockholder who owns such holder (or the former or current holder of which such
holder was a Permitted Transferee) as a result of such Management Stockholder’s
death, Permanent Incapacity, Retirement or Removal Upon the Instruction of the
Management Committee (with capitalized terms used in this Section 2.03(a), but
not otherwise defined in this Agreement, having the meanings provided for such
terms in the Certificate of Designation).
(b) during
the twelve month period commencing April 20, 2011, and each
twelve month period commencing on each April 20 thereafter, up to the
following cumulative percentage of the aggregate number of Second Exchange
Shares issued to such holder under the Second Exchange Agreement (as ratably
adjusted on account of any stock splits, stock dividends or similar events
affecting the Common Stock):
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Twelve
Month Period
Commencing April 20
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Cumulative
Percentage
Which
May be Sold
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2011
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20 | ||
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2012
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40
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||
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2013
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60
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2014
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80
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||
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2015
and thereafter
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100
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Section
2.04. Restrictive
Legends. It is understood and agreed that the certificates
evidencing the shares of Series B Preferred Stock and the certificates
evidencing the shares of Common Stock issued upon conversion of, or in exchange
for, Series B Preferred Stock until such time as such shares of Common Stock
represented by such certificates are Transferred in compliance with the
provisions of this Article II, shall bear the following legends, in addition to
any other legends required by Delaware law:
“THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE OFFERED AND SOLD ONLY IF SO
REGISTERED OR IN A MANNER EXEMPT FROM REGISTRATION UNDER SUCH
ACT.
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THE
SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS
OF AN AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT WHICH PLACES RESTRICTIONS
ON THE TRANSFERABILITY OF THE SHARES REPRESENTED HEREBY. A COPY OF
THE AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY.”
(a) From
and after the Closing (as defined in the Second Exchange Agreement), each of the
Investors hereby agrees, on its own behalf and on behalf of its Permitted
Transferees, that to the extent that the Investors and their Permitted
Transferees in the aggregate would, but for the operation of this Section
2.05(a), have the right to vote Second Exchange Shares and shares of Series B
Preferred Stock which, together, represent more than 25% of the votes
which may be cast on any matter to be voted upon by the holders of capital stock
of the Company (the “25% Cap”), such
Investor shall not, and shall cause its Permitted Transferees not to, vote its
Pro Rata Percentage of that number of shares of Series B Preferred Stock which,
if voted, would cause the 25% Cap to be exceeded. Nothing contained
in this Section 2.05(a) shall limit the voting rights of the Second Exchange
Shares. For purposes of this Section 2.05(a), “Pro Rata Percentage”
shall mean a fraction, the numerator of which is the number of shares of Series
B Preferred Stock owned by such Investor and the denominator of which is the
total number of outstanding shares of Series B Preferred Stock.
(b) From
and after the Closing (as defined in the Second Exchange Agreement), each
Investor hereby agrees to waive its right to elect one director to the Company’s
Board of Directors as provided in Section 3(c) of the Certificate of
Designation; such that until such time as the holders of Series B Preferred
Stock own less than 300 shares of Series B Preferred Stock, such holders shall
have the right to elect only one director.
ARTICLE
III
Section
3.01. Termination. This
Agreement shall terminate, and have no further force and effect, (i) when the
Company shall consummate a transaction or series of related transactions deemed
to be a Liquidation Event pursuant to, and defined in, the Company’s Certificate
of Designation for the Series B Preferred Stock, as the same may be amended from
time to time or (ii) upon the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding and Series B Preferred
Stock then outstanding, voting together on an as-converted basis with the
Registrable Securities.
Section
3.02. Notices. All
notices, requests, demands and other communications under this Agreement must be
in writing and will be deemed duly given, unless otherwise expressly indicated
to the contrary in this Agreement, (i) when personally delivered, (ii) upon
receipt of a telephonic facsimile transmission with a confirmed telephonic
transmission answer back, (iii) three (3) business days after having been
deposited in the United States mail, certified or registered, return receipt
requested, postage prepaid, or (iv) one (1) business day after having been
dispatched by a nationally recognized overnight courier service, addressed to
the parties or their permitted assigns at the following
addresses:
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if to the
Company:
000
Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxx 00000
Attention: Xxxxxxx
X. Xxxxx
Facsimile: 303-893-2902
with a
copy to:
Xxxxxxx
XxXxxxxxx LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx
X. Xxxxxxx
Facsimile: 000-000-0000
if to the
Investors or Management Stockholders:
000 Xxxxx
XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Facsimile: 000-000-0000
with a
copy to:
Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx LLP
000 X.
Xxxxxx Xxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention: Xxxxxxx
X. Xxxxxxxxx
Facsimile:
312-876-7934
or at
such other address as a party may furnish in writing to each other
party.
Section
3.03. Amendments, Modifications
and Waivers. Any covenant, agreement, provision or condition
of this Agreement may be amended or modified, or compliance therewith may be
waived (either generally or in any particular instance and either retroactively
or prospectively), by (and only by) an instrument in writing signed by the
Company and the holders of a majority of the Registrable Securities then
outstanding and Series B Preferred Stock then outstanding, voting together on an
as-converted basis with the Registrable Securities.
Section
3.04. Successors and
Assigns. This Agreement shall be so binding upon and shall
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
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Section
3.05. Severability. Should
any part of this Agreement for any reason be declared invalid, such decision
shall not affect the validity of any remaining portion which remaining portion
shall remain in full force and effect as if this Agreement had been executed
with the invalid portion thereto eliminated and it is hereby declared the
intention of the parties hereto that they would have executed the remaining
portion of this Agreement without included therein any such part or parts which
may, for any reason, be hereafter declared invalid.
Section
3.06. Captions. The
descriptive headings of the various Sections or parts of this Agreement are for
convenience only and shall not affect the meaning or construction of any of the
provisions hereof.
Section
3.07. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any and all prior agreements and understandings, written or oral,
relating to the subject matter hereof.
Section
3.08. Governing
Law. This Agreement and the rights of the parties hereunder
shall be interpreted in accordance with the laws of the State of Delaware, and
all rights and remedies shall be governed by such laws without regard to
principles of conflicts of laws. . Each of the parties
hereby consents to personal jurisdiction, service of process and venue in the
federal or state courts sitting in the City of Chicago for any claim, suit or
proceeding arising under this Agreement to enforce any arbitration award or
obtain equitable relief and hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such state court or,
to the extent permitted by law, in such federal court (subject to the provisions
of Section 3.09 hereof). To the extent permitted by law, each of the
parties hereby irrevocably consents to the service of process in any such action
or proceeding 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 3.02 hereof. The parties agree that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions.
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Section
3.09. Dispute
Resolution. All disputes arising in connection with this
Agreement shall be resolved in binding arbitration in accordance with the
applicable rules of the American Arbitration Association. The
arbitration shall be held in the City of Chicago before a single arbitrator
selected in accordance with Section 11 of the American Arbitration Association
Commercial Arbitration Rules who shall have substantial experience in the
investment advisory industry, and shall otherwise be conducted in accordance
with the American Arbitration Association Commercial Arbitration
Rules. The parties covenant that they will participate in the
arbitration in good faith and that they will share equally its costs except as
otherwise provided herein. The provisions of this Section 3.09 shall
be enforceable in any court of competent jurisdiction, and the parties shall
bear their own costs in the event of any proceeding to enforce this Agreement
except as otherwise provided herein. The arbitrator shall assess
costs and expenses (including the reasonable legal fees and expenses of the
prevailing party or parties against the other party or parties to such
proceeding). Any party unsuccessfully refusing to comply with an
order of the arbitrators shall be liable for costs and expenses, including
attorney’s fees, incurred by the other party in enforcing the
award.
Section
3.10. Counterparts. This
Agreement may be executed in any number of counterparts and by facsimile, each
of which shall be considered an original, but all of which taken together shall
constitute one instrument.
Section
3.11. Interpretation. No
provisions of this Agreement shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have drafted or
dictated such provision.
[Signature
Pages Follow]
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The
parties hereto have executed this Amended and Restated Investor Rights Agreement
as of the date first written above.
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COMPANY:
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By:
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/s/ Xxxxxxx X.
Xxxxx
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Name:
Xxxxxxx X. Xxxxx
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Title:
President & CEO
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INVESTORS:
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|
SDB
ASTON, INC.
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxx
|
||
|
Title:
President
|
||
|
KCA
ASTON, INC.
|
||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxxx
|
||
|
Title:
President
|
||
|
GFD
ASTON, INC.
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxxx
|
|
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
||
|
Title:
President
|
||
|
CRD
ASTON, INC.
|
||
|
By:
|
/s/ Xxxxxxxxx X. Dragon
|
|
|
Name:
Xxxxxxxxx X. Dragon
|
||
|
Title:
President
|
||
|
XX
XXXXX, INC.
|
||
|
By:
|
/s/ Xxxxxx Xxxx
|
|
|
Name:
Xxxxxx Xxxx
|
||
|
Title:
President
|
||
24
|
BCH
ASTON, INC.
|
||
|
By:
|
/s/ Xxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
President
|
||
|
DAR
ASTON, INC.
|
||
|
By:
|
/s/ Xxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxxx
|
||
|
Title:
President
|
||
|
JPR
ASTON, INC.
|
||
|
By:
|
/s/ Xxxx X. Xxxxx
|
|
|
Name:
Xxxx X. Xxxxx
|
||
|
Title:
President
|
||
|
MANAGEMENT
STOCKHOLDERS:
|
||
|
/s/ Xxxxxx X. Xxxxxx
|
||
|
Xxxxxx
X. Xxxxxx
|
||
|
/s/ Xxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxx
X. Xxxxxxxx
|
||
|
/s/ Xxxxxx X. Xxxxxxxxxx
|
||
|
Xxxxxx
X. Xxxxxxxxxx
|
||
|
/s/ Xxxxxxxxx X. Dragon
|
||
|
Xxxxxxxxx
X. Dragon
|
||
|
/s/ Xxxxxx Xxxx
|
||
|
Xxxxxx
Xxxx
|
||
25
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxx
Xxxxxxx
|
|
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxx
Xxxxxxx
|
|
|
/s/ Xxxx Xxxxx
|
|
|
Xxxx
Xxxxx
|
26
SCHEDULE
A
Investors
SDB
Aston, Inc.
KCA
Aston, Inc.
GFD
Aston, Inc.
CRD
Aston, Inc.
XX Xxxxx,
Inc.
BCH
Aston, Inc.
DAR
Aston, Inc.
JPR
Aston, Inc.
Management
Stockholders
Xxxxxx
Xxxxxx
Xxxxxxx
X. Xxxxxxxx
Xxxxxx
Xxxxxxxxxx
Xxxxxxxxx
X. Dragon
Xxxxxx
Xxxx
Xxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxx
Xxxxx
27