PARTNER NON-COMPETITION AGREEMENT
Exhibit
10.51
THIS
PARTNER NON-COMPETITION AGREEMENT (this “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 “Equityholder”).
WHEREAS,
the Employer is engaged in the business of providing Investment Management
Services;
WHEREAS,
pursuant to an 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, a majority of the partnership interest and the
associated goodwill of the Employer (the “Merger”) and, at the
Effective Time, AMG will pay significant consideration to the equityholders of
Highbury (the “Merger
Consideration”);
WHEREAS,
simultaneously with the execution of the Merger Agreement, the Equityholder has
become a party to that certain Amended and Restated Limited Partnership
Agreement of the Employer (as the same may be amended and/or restated from time
to time, the “Restated
LP Agreement”), which will become effective 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, and
pursuant to which Manor will become the General Partner of the Employer, and the
Equityholder will continue to hold (directly and/or through his related Limited
Partner (as defined in the Restated LP Agreement), if any) an equity interest in
the business of the Employer through his Retained Ownership Interest (as defined
in the Merger Agreement) therein;
WHEREAS,
as a significant owner of the Employer, the Equityholder will receive
substantial economic and other benefits in his ownership capacity if the Merger
is consummated, including his receipt on the Closing Date of significant
consideration;
WHEREAS,
the Equityholder also will continue to own a substantial equity interest in the
business of the Employer following consummation of the Merger, and the
Equityholder will have the opportunity in the future to receive additional
substantial payments from the General Partner pursuant to the Equityholder's
sale of his Retained Ownership Interest in the Employer to the General Partner
under the Restated LP Agreement;
WHEREAS,
the Equityholder has been an owner of the business of the Employer (and its
predecessors) for more than thirty-eight (38) years, has during such time
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 a partner of the Employer following the Closing;
WHEREAS,
the General Partner, the Employer and the Equityholder recognize the importance
of the Equityholder to the Employer and to the Employer's ability to retain its
Client relationships and generate goodwill in the future;
WHEREAS,
the General Partner and the Employer wish to be assured that the Equityholder
will not, while a partner of the Employer and for a period thereafter, compete
with the Employer or any of its Controlled Affiliates or solicit any Past
Clients, Present Clients, or Potential Clients (each as defined herein) of the
Employer or its Controlled Affiliates, as any such competition or solicitation
by the Equityholder would damage the Employer's goodwill among its Clients and
the general public;
WHEREAS,
in connection with the Equityholder's sale in the Merger and his retention
(directly and/or through his related Limited Partner, if any) of his Retained
Ownership Interest following the consummation thereof, the Equityholder agrees
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, provided herein; 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
(including without limitation the Equityholder's receipt of consideration in
connection with the Merger, the Equityholder's retention of his Retained
Ownership Interests and the Equityholder's opportunity to receive substantial
additional payments in the future upon the sale of those Retained Ownership
Interests to the General Partner under the Restated LP Agreement) that the
Equityholder enter into and be bound by this 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:
1. Effectiveness. This
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 Agreement shall be terminated without further
obligation or liability on the part of any party
hereto. Notwithstanding any other provision herein, this 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.
2. Definitions.
Initially capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Restated LP Agreement.
“Client” shall mean
all Past Clients, Present Clients and Potential Clients, subject to the
following general rules:
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(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 Equityholder 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 predecessor thereto, in the case of a Past Client) (whether through
investments in Funds or otherwise));
(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 Equityholder 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 predecessor thereto, 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
Equityholder's Immediate Family (or any investment account of which the
Equityholder and/or members of the Equityholder'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.
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“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.
“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 Equityholder's status (directly and/or through
his related Limited Partner, as applicable) as a Partner of the Employer, the
term “Past Client” shall thereafter be limited (solely with respect to the
Equityholder) 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.
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“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 Employer 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 Equityholder's status (directly and/or through
his related Limited Partner, as applicable) as a Partner of the Employer, the
term “Potential Client” shall thereafter be limited (solely with respect to the
Equityholder) 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. 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.
“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
Employer 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 Equityholder's own
account or the account of any Excluded Client without a fee or other
remuneration shall not be considered a Prohibited Competition
Activity.
“Transaction
Documents” shall have the meaning given to it in the Merger
Agreement.
3. Non-Competition and Other
Restrictive Covenants.
(a)
The Equityholder agrees, for the benefit of the Employer, the
General Partner and their respective Affiliates, that the Equityholder 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 and its Controlled Affiliates while a Partner (directly
and/or through his related Limited Partner, as applicable) of the Employer),
during the period beginning on the Closing Date and until the date that is the
sixth (6th)
anniversary of the Closing Date (for the avoidance of doubt, whether or not the
Equityholder has ceased to be a Partner of the Employer (directly and/or through
his related Limited Partner, as applicable) for any reason):
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(i)
Engage in any Prohibited Competition Activity involving or
otherwise relating to equity or equity-linked securities (or any derivatives or
other financial instruments relating to such securities or the performance
thereof); or
(ii) Engage
in any other Prohibited Competition Activity.
(b)
In addition to, and not in limitation of, the provisions of Section
3(a), the Equityholder agrees, for the benefit of the Employer, the General
Partner and their respective Affiliates, that the Equityholder shall not,
directly or indirectly (whether individually or as owner, part owner,
shareholder, partner, member, director, officer, trustee, employee, agent or
consultant, or in any other capacity, on behalf of himself or any other Person
(other than the Employer and its Controlled Affiliates while a Partner (directly
and/or through his related Limited Partners, as applicable) of the Employer),
during the period beginning on the Closing Date and until the date that is the
sixth (6th) anniversary of the
Closing Date (for the avoidance of doubt, whether or not the Equityholder has
ceased to be a Partner of the Employer (directly and/or through his related
Limited Partner, as applicable) for any reason):
(i) Provide
Investment Management Services to any Person that is a Client (which includes
Past Clients, Present Clients and Potential Clients) for whom the Equityholder
provided (directly or indirectly) any Investment Management Services while a
Partner (directly and/or through his related Limited Partners, as applicable) of
the Employer, or whom the Equityholder 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
Equityholder had access to confidential or proprietary information of the
Employer or any Controlled Affiliate thereof (or any predecessor thereto) while
a Partner (directly and/or through his related Limited Partners, as applicable)
of the Employer (or an equityholder of the Employer), 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 3(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 3(a) and 3(b), the Equityholder agrees, for the benefit of the
Employer, the General Partner and their respective Affiliates, that the
Equityholder 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 and its Controlled Affiliate while a
Partner (directly and/or through his related Limited Partner, as applicable) of
the Employer), during the period beginning on the Closing Date and until the
date that is the sixth (6th) anniversary of the
Closing Date (for the avoidance of doubt, whether or not the Equityholder has
ceased to be a Partner of the Employer (directly and/or through his related
Limited Partner, as applicable) for any reason):
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(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
(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 3(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 3(a), 3(b) and 3(c), the Equityholder agrees, for the benefit of the
Employer, the General Partner and their respective Affiliates, that the
Equityholder shall not, directly or indirectly (whether individually or as
owner, part owner, shareholder, partner, member, director, officer, trustee,
employee, agent or consultant, or in any other capacity, on behalf of himself or
any other Person (other than the Employer and its Controlled Affiliate thereof
while a Partner (directly and/or through his related Limited Partner, as
applicable) of the Employer), during the period beginning on the Closing Date
and until the sixth (6th) anniversary of the
Closing Date (for the avoidance of doubt, whether or not the Equityholder has
ceased to be a Partner of the Employer (directly and/or through his related
Limited Partner, as applicable) 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 Equityholder (in the case of any such action
taken by the Equityholder while he remains a Partner of the Employer (directly
and/or through his related Limited Partner, as applicable)) or (II) the
termination of the Equityholder's status (directly and/or through his related
Limited Partner, as applicable) as a Partner of the Employer (in the case of any
such action taken by the Equityholder following termination of such status);
or
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(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 Equityholder (in the case of any such
action taken by the Equityholder while he remains a Partner of the Employer
(directly and/or through his related Limited Partner, as applicable)) or (II)
the termination of the Equityholder's status (directly and/or through his
related Limited Partner, as applicable) as a Partner of the Employer (in the
case of any such action taken by the Equityholder following termination of such
status);
(but
excluding, for all purposes of this sentence, secretaries and persons holding
other similar ministerial positions).
(e)
Notwithstanding the provisions of Sections 3(a), 3(b), 3(c) and
3(d), the Equityholder 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 that 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.
(f)
The Equityholder, the Employer and the General Partner
agree that (x) the non-competition and other restrictive covenants set forth in
this Section 3 have been entered into by the Equityholder in connection with the
Merger and in recognition of (and in connection with) his direct and indirect
ownership of the business of the Employer (and its predecessors thereto), his
status (directly and/or through his related Limited Partner, as applicable) as a
Partner of the Employer following consummation of the Merger, 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 3 (and all other aspects of the scope of such covenants) are
reasonable in view of (without limitation):
(i) The
Equityholder's ownership in the business of the Employer (and its predecessors)
for more than thirty-eight (38) years and his status as a significant
equityholder of the Holding Company, the businesses of which are being acquired
in the Merger;
(ii) The
Equityholder's receipt of significant consideration in connection with the
Merger, including the sale of the goodwill inherent in the Holding Company’s and
its Controlled Affiliates’ (including without limitation the Employer’s (and its
predecessors’) and its Controlled Affiliates’) relationships with Clients
resulting therefrom;
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(iii) The
Equityholder's retention of a significant ownership interest in the business of
the Employer following consummation of the Merger (directly and/or through his
related Limited Partner, as applicable), and his status as a Partner of the
Employer in connection with his Retained Ownership Interest
therein;
(iv)
The Equityholder's opportunity in the future to receive substantial additional
payments from the General Partner (directly and/or through his related Limited
Partner, as applicable) pursuant to the Equityholder's sale of his Retained
Ownership Interest to the General Partner under the Restated LP Agreement, which
the Equityholder, the General Partner and the Employer acknowledge provides the
Equityholder with an additional future opportunity to be a seller of the
goodwill of the Employer represented by such Retained Ownership Interest, and
constitutes a separate and independent reason that the periods of time and scope
of the covenants set forth in this Section 3 are reasonable;
(v) The
geographic scope and nature of the businesses in which the Employer and its
Controlled Affiliates are (and their predecessors were) engaged;
(vi) The
Equityholder's knowledge of the Employer's and its Controlled Affiliates’ (and
their predecessors’) businesses and the confidential and proprietary information
thereof, including without limitation as an owner thereof;
(vii) The
Equityholder’s status as a partner of the Employer (directly and/or through his
related Limited Partner, as applicable), and his fiduciary and other duties in
connection therewith; and
(viii) The
Equityholder’s relationships with the Employer’s (and its predecessors’)
Clients, including without limitation as an owner of the Employer and its
predecessor.
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 Equityholder agrees to provide written
notice of the provisions of this Section 3 (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 Equityholder acts as an employee or
otherwise becomes associated following termination of his status (directly
and/or through his related Limited Partner, as applicable) as a Partner of the
Employer (prior to acting in such capacity or commencing such association, as
applicable).
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(h)
The provisions of this Section 3 shall not be deemed to
limit any of the rights of the Employer or the Partners under the Restated LP
Agreement, the Equityholder's Employment Agreement or under applicable law, but
shall be in addition to the rights set forth in the Restated LP Agreement and
the Equityholder's Employment Agreement and those which arise under applicable
law.
(i)
The Equityholder acknowledges and agrees that the restrictive
covenants and other agreements of the Equityholder contained in this Agreement
are an essential part of this Agreement. The Equityholder further
represents, warrants and agrees that the Equityholder 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 Agreement and the
transactions contemplated by this Agreement and the other Transaction
Documents. Accordingly, the Equityholder agrees to be bound by the
restrictive covenants and other agreements of the Equityholder contained in this
Agreement, it being the intent and spirit of the parties that such restrictive
covenants and other agreements of the Equityholder contained in this Agreement
shall be valid and enforceable in all respects.
4. Absence of Conflicting
Agreements. The Equityholder represents that he is not bound
by any agreement or any other existing or previous business relationship which
conflicts with or prevents the full performance of his duties and obligations
under this Agreement or otherwise (including, without limitation, his duties as
a Partner of the Employer (directly and/or through his related Limited Partner,
as applicable)). In addition, the Equityholder represents that he is
not a party to or bound by any agreement with any business or venture competing
with the Employer (or its predecessor), AMG, the General Partner or their
respective Controlled Affiliates (except to the extent the Employer and its
Controlled Affiliates compete with other of AMG's Controlled Affiliates), and
covenants that he will not enter into or discuss entering into any such
agreement while a Partner of the Employer (directly and/or through his related
Limited Partner, as applicable).
5. Remedies Upon
Breach.
(a)
In the event that the Equityholder breaches any of the
provisions of this Agreement (or otherwise violates any of the stated terms of
such provisions), including without limitation following the termination of the
Equityholder's status as a Partner of the Employer (directly and/or through his
related Limited Partner, as applicable), 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 Equityholder:
(i) The
Equityholder 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;
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(ii) Neither
AMG nor the General Partner (or any of their assignees under the Restated LP
Agreement) shall have any further obligations under any Promissory Note or
Liquidation Date Consideration issued to the Equityholder or any related Limited
Partner thereof pursuant to the Restated LP Agreement; and
(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 Equityholder 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
Equityholder agrees that the remedies provided in this Section 5(a) with respect
to breaches (or other violations) of the provisions of this 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 Equityholder.
(b)
The Equityholder recognizes and agrees that the Employer's 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 Agreement
would be inadequate, and that for any breach or threatened breach (or other
violation) of such provisions by the Equityholder, 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 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 Equityholder
engage in any activities prohibited by this 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 Equityholder under this Agreement or any other written
agreement to which he is a party or under applicable law.
6. Miscellaneous. The
Equityholder acknowledges that his obligations under this Agreement shall
survive the termination of the Equityholder's status (directly and/or through
his related Limited Partner, as applicable) as a Partner of the Employer
(regardless of the manner of such termination). The Equityholder
shall not enter into any agreement or arrangement which is inconsistent with the
terms and provisions of this Agreement.
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.
11
|
|
(a)
|
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
|
|
(b)
|
if
to the Equityholder:
|
c/o Aston
Asset Management, LP
000 Xxxxx
XxXxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxx Xxxxxx
Facsimile
No: (000) 000-0000
|
|
(c)
|
if
to the General Partner:
|
c/o
Affiliated Managers Group, Inc.
000 Xxxx
Xxxxxx
Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx
Xxxxxxxx, General Counsel
Facsimile
No.: (000) 000-0000
unless and until notice of another or
different address shall be given as provided herein.
8. Third-Party Beneficiary;
Assignability. AMG is an intended third-party beneficiary of
the provisions of this Agreement. This Agreement may be assigned by
the Employer, AMG and/or the General Partner without the consent of the
Equityholder (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
Agreement shall be binding upon and inure to the benefit of the Employer, the
General Partner and their successors and permitted assigns. This Agreement shall
not be assignable by the Equityholder. 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 Equityholder hereunder, and the
General Partner shall be entitled to enforce all such covenants and agreements
on its own behalf.
12
9. Entire
Agreement. This Agreement, together with the other Transaction
Documents, 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 (any predecessor
thereto or any Controlled Affiliate thereof) and the Equityholder with respect
to the subject matter hereof. In the event of any conflict between
the provisions hereof and of the Restated LP Agreement, the provisions hereof
shall control.
10. Dispute
Resolution. All disputes arising under or in connection with
this Agreement shall be settled by binding arbitration in accordance with the
provisions of Section 10.6 of the Restated LP Agreement.
11. Consent to
Jurisdiction. For the purposes of any judicial proceedings
ancillary to an arbitration under Section 10 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 10 hereof).
12. Waivers and Further
Agreements. Neither this Agreement nor any term or condition
hereof, including without limitation the terms and conditions of this Section
12, may be waived or modified in whole or in part as against the General
Partner, the Employer or the Equityholder, 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 Agreement or the applicable term or condition
hereof, provided that any
action under this Section 12 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 Agreement.
13. Amendments; Employer's
Consent. This 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 13 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).
13
14. Severability. If any
provision of this 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 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 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
Agreement are severable, and no breach of any provision of this Agreement (or
any other Transaction Document) or any other purported violation of law by the
Employer or the General Partner shall operate to excuse the Equityholder's
obligation to fulfill his covenants and agreements hereunder (including without
limitation the requirements of Section 3 hereof). For the further
avoidance of doubt, the Equityholder understands that his relationship 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 Agreement
or to require the re-signing of this Agreement.
15. Governing
Law. This 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.
16. Counterparts. This
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]
14
IN
WITNESS WHEREOF, the parties have executed this 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
|
||
|
EQUITYHOLDER:
|
|||
|
/s/ Xxxxxx Xxxxxx
|
|||
|
Xxxxxx
Xxxxxx
|
|||
