Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - HIGHBURY FINANCIAL INC | v168844_8-k.htm |
| EX-10.3 - SEVERANCE AGREEMENT - R. BRADLEY FORTH - HIGHBURY FINANCIAL INC | v168844_ex10-3.htm |
| EX-10.2 - SEVERANCE AGREEMENT - RICHARD S. FOOTE - HIGHBURY FINANCIAL INC | v168844_ex10-2.htm |
| EX-10.1 - AGREEMENT OF PLAN OF MERGER - HIGHBURY FINANCIAL INC | v168844_ex10-1.htm |
| EX-10.5 - TERMINATION AGREEMENT - ASTON ASSET MANAGEMENT LLC. - HIGHBURY FINANCIAL INC | v168844_ex10-5.htm |
| EX-99.1 - PRESS RELEASE - HIGHBURY FINANCIAL INC | v168844_ex99-1.htm |
| EX-10.6 - AMENDMENT NUMBER ONE TO RIGHTS AGREEMENT - HIGHBURY FINANCIAL INC | v168844_ex10-6.htm |
EXHIBIT
10.4
TERMINATION
AGREEMENT
This
TERMINATION AGREEMENT (the “Agreement”), dated as
of December 12, 2009, is made and entered into between Highbury Financial Inc.,
a Delaware corporation (“Highbury”), and
Berkshire Capital Securities LLC, a Delaware limited liability company (“Berkshire”).
Recitals
A. Highbury
and Berkshire entered into that certain Office Service Agreement, dated as of
October 31, 2007, which replaced that certain Office Service Agreement, dated as
of November 30, 2006, between Highbury and Berkshire, which replaced that
certain Office Service Agreement, dated as of December 21, 2005, between
Highbury and Berkshire (the “Office Service
Agreement”), to provide Highbury office space and certain general and
administrative services.
B. Highbury
and Berkshire entered into (i) that certain Letter Agreement, dated as of
February 2, 2007, whereby Highbury retained Berkshire to act as a non-exclusive
financial advisor in connection with a proposed acquisition transaction or a
series of acquisition transactions by Highbury, (ii) that certain Letter
Agreement, dated as of September 18, 2009, whereby Highbury retained Berkshire
to act as a non-exclusive financial advisor in connection with a review of
strategic alternatives including a potential business combination involving
Highbury and another party and (iii) that certain Letter Agreement, dated as of
June 29, 2009, whereby Highbury agreed that certain valuation services delivered
by Berkshire would be subject to the indemnification provisions of the letter
agreement, dated February 2, 2007, between Highbury and Berkshire (collectively,
the “Letter
Agreements” and, collectively with the Office Service Agreement, the
“Berkshire
Agreements”).
C. Highbury
and Berkshire desire to terminate the Berkshire Agreements as of the Closing
Date, as defined in that certain Agreement and Plan of Merger, dated as of
December 12, 2009, by and among Affiliated Managers Group, Inc., Manor LLC and
Highbury (the “Merger
Agreement”) (such date of termination, the “Effective
Date”).
In
consideration of the foregoing recitals, the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is agreed as
follows:
1. Termination of the Berkshire
Agreements. Notwithstanding any provisions to the contrary in
the Berkshire Agreements, but subject to Section 2 below, the parties hereby
agree that the Berkshire Agreements shall terminate at midnight Eastern time on
the Effective Date. The parties hereby waive any and all notice
periods required prior to the termination of the Berkshire Agreements being
deemed effective and hereby waive any and all fees that would have accrued after
the Effective Date under the Berkshire Agreements. On or prior to the
Effective Date, Highbury will pay Berkshire all amounts accrued under the
Berkshire Agreements as of the Effective Date.
2. Indemnification
Rights. Notwithstanding anything to the contrary in this
Agreement, nothing herein shall be deemed to affect in any way Berkshire’s or
Highbury’s rights or obligations under any of the Berkshire Agreements relating
to any indemnification, exculpation or contribution provisions
therein.
3. No Default by
Highbury.
As of the date of this Agreement and to the best of Berkshire’s knowledge,
Highbury has not breached and is not in default under the terms of the Berkshire
Agreements and no event has occurred which, with the giving of notice or the
passage of time, or both, would constitute a default by Highbury
thereunder.
4. No Default by
Berkshire. As of the date of this Agreement and to the best of
Highbury’s knowledge, Berkshire has not breached and is not in default under the
terms of the Berkshire Agreements, and no event has occurred which, with the
giving of notice or the passage of time, or both, would constitute a default by
Berkshire thereunder.
5. No Liability. As of
the date hereof, Highbury acknowledges and agrees that it has no counterclaims,
defenses, credits, deductions, or offsets to its obligations under the Berkshire
Agreements or to enforcement of any of Berkshire’s rights
thereunder. As of the date hereof, Berkshire acknowledges and agrees
that (i) it has no counterclaims, defenses, credits, deductions, or offsets to
its obligations under the Berkshire Agreements or to enforcement of any of
Highbury’s rights thereunder and (ii) Highbury has not committed any acts that
may obligate Highbury to indemnify Berkshire under the Berkshire Agreements and
Berkshire is not aware of any circumstances, actions or events that might give
rise to any claim to the contrary.
6. No Other Agreements.
The parties hereby acknowledge that there are no other agreements, contracts or
arrangements between Highbury and Berkshire, other than the Berkshire Agreements
identified herein.
7. Effective
Date. 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
Date having occurred, this Agreement shall be terminated without further
obligation or liability on the part of any party hereto.
8. Miscellaneous. This
Agreement may be executed in any number of counterparts, which together shall
constitute the agreement of the parties. The parties hereto agree
that the parties shall deem facsimile signatures on this Agreement effective as
originals for all purposes. This Agreement contains the entire
agreement of the parties concerning the subject matter hereof, and may not be
amended, modified, or supplemented without the prior written consent of both
parties hereto. The recitals contained herein are incorporated herein
by this reference in their entirety. This Agreement shall be binding
upon and inure to the benefit of Highbury and Berkshire and their respective
successors and permitted assigns, and shall be governed by and in accordance
with the laws of the State of Delaware.
This
Agreement is made and entered into as of the date first written
above.
HIGHBURY FINANCIAL
INC.,
By:
/s/ Richard S. Foote
Name:
Richard S. Foote
Title:
President and Chief Executive Officer
BERKSHIRE CAPITAL SECURITIES
LLC,
By:
/s/ R. Bruce Cameron
Name:
R. Bruce Cameron
Title:
President and CEO