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Exhibit 4.16
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") made and
entered into as of this ____ day of ________, l998, by and among Asset Alliance
Corporation ("Parent") a Delaware corporation, and Xxxxxxx Xxxxxxx, Xxxxx
Xxxxxxxx, Metropolitan Capital Advisors, Inc., KJ Advisors, Inc., Metropolitan
Capital III, Inc. and Xxxxxxx Xxxxxxx Children's Trust (each a "Shareholder" and
together, the "Shareholders").
WHEREAS, the Parent and the Shareholders are parties to the Purchase
Agreement, dated as of March 24, 1998, by and among the Parent, Metropolitan
Capital Advisors, L.P., Metropolitan Capital Partners II, L.P., Metropolitan
Capital Partners III, L.P., the Shareholders and certain other parties as set
forth therein (the "Purchase Agreement") pursuant to which the Shareholders will
receive, among other consideration, pro rata in accordance with their interests
in certain of the forego ing entities and $_________ in principal amount of
convertible subordinated debentures (the "Debentures") of the Parent in the form
attached to the Purchase Agree ment. As used in this Agreement, the term
"Shares" refers to any shares of Common Stock, par value $.01 per share, of
Parent ("Parent Common Stock") acquired upon conversion of the Debentures and,
if applicable, any capital stock of the Company issued by way of a stock split,
stock dividend, recapitalization, merger or other distribution with respect to,
or in exchange for, or in replacement of, such Parent Common Stock; and
WHEREAS, the Shareholders have requested that, in connection with
the Purchase Agreement, the Parent provide a means of registering the Parent
Common Stock under the Securities Act of 1933, as amended (the "Securities
Act"), and the Parent is willing to provide such registration as provided
herein;
NOW, THEREFORE, in consideration of the premises and the agreements
herein contained, the parties hereto agree as follows:
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1. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Parent proposes to
register any of its equity securities under the Securities Act, the
registration form to be used may be used for the registration of Shares
(a "Piggyback Registration"), the Parent will give prompt written notice
to all Shareholders of its intention to effect such a registration and
will, subject to paragraphs (b), (c) and (d) below, include in such
registration all Shares held by any Shareholder who holds, and is at such
time authorized under the terms of the Purchase Agreement to transfer to
persons other than members of its Immediate Family, in excess of 1% of the
then outstanding Shares (each, an "Eligible Shareholder") with respect to
which (i) such Shareholder is at such time authorized under the terms of
the Purchase Agreement to make such a transfer and (ii) the Parent has
received written requests for inclusion therein within 15 days after the
receipt by such Shareholder of the Parent's notice.
(b) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the
Parent (whether or not also on behalf of holders of the Parent's
securities), and the managing underwriters advise the Parent in writing
that in their opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering,
the Parent will include in such registration (i) first, the securities the
Parent proposes to sell, (ii) second, the Shares properly requested to be
included in such registration, pro rata among shareholders who are
entitled to request such inclusion, and (iii) third, other securities
requested to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of
holders of the Parent's securities, and the managing underwriters advise
the Parent in writing that in their opinion the number of securities
requested to be
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included in such registration exceeds the number which can be sold in such
offering, the Parent will include in such registration (i) first, the
securities requested to be included therein by the holders demanding
such registration and,(ii) second, the Shares requested to be included in
such registration, pro rata among shareholders who are entitled to
request such inclusion and (iii) third, other securities requested to be
included in such registration.
(d) Nothing in this Section 1 will prohibit the Parent, in its
sole discretion, from determining, at any time, not to file a registration
statement or, if filed, to withdraw such registration statement or
terminate the registration related thereto.
2. Selection of Underwriters. If any offering pursuant to a
Registration Statement is an underwritten offering, the Parent will select a
managing underwriter or underwriters to administer the offering.
3. Registration Expenses. All expenses incident to the Parent's
performance of or compliance with its obligations under this Agreement
(excluding underwriting discounts, selling commissions and brokerage fees,
which will be paid by the participating Shareholders) will be paid by the
Parent, regardless of whether Shares are sold pursuant to any registration
statement filed pursuant to Section 1 above (a "Registration Statement").
4. Indemnification; Contribution.
(a) Indemnification by the Parent. The Parent agrees to
indemnify each Shareholder and any agent or investment adviser thereof
against all losses, claims, damages, liabilities and expenses (including
reasonable attorneys' fees and expenses of investigation) incurred by such
party pursuant to any actual or threatened action, suit, proceeding or
investigation arising out of or based upon (i) any untrue or allegedly
untrue statement of material fact contained in any Registration Statement,
any prospectus or preliminary prospectus, or any amendment or supplement
to any of the foregoing or (ii)
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any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the
case of a prospectus or a preliminary prospectus, in light of the
circumstances then existing) not misleading, except in each case insofar
as the same arise out of or are based upon, any such untrue statement or
omission made in reliance on and in conformity with information with
respect to such indemnified party furnished in writing to the Parent by
such indemnified party or its counsel expressly for use therein.
Notwithstanding the foregoing provisions of this paragraph (a), the Parent
will not be liable to any Shareholder, any person who participates as an
underwriter in the offering or sale of Shares or any other person, if any,
who controls such holder or underwriter (within the meaning of the
Securities Act), under the indemnity agreement in this paragraph (a) for
any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense that arises out of such Shareholder's or other
person's failure to send or give a copy of the final prospectus to the
person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of
the sale of the Shares to such person if such statement or omission was
corrected in such final prospectus and the Parent has previously furnished
copies thereof to such Shareholder.
(b) Indemnification by Shareholders. In connection with the
Registration Statement, each participating Shareholder will furnish to the
Parent in writing such information, including with respect to the name,
address and the amount of Shares held by such Shareholder, as the Parent
reasonably requests for use in such Registration Statement or the related
prospectus and agrees to indemnify and hold harmless the Parent, all other
prospective holders or any underwriter, as the case may be, and any of
their respective affiliates, directors, officers and controlling Persons
(within the meaning of the Securities Act) against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of a material fact or any omission or alleged omission of
a material fact
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required to be stated in such Registration Statement or prospectus or any
amendment or supplement to either of them or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances then existing) not misleading, but only to the extent that
any such untrue statement or omission is made in reliance on and in
conformity with information with respect to such Shareholder furnished in
writing to the Parent by such Shareholder or its counsel specifically for
inclusion therein.
(c) Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder agrees to give prompt written
notice to the indemnifying party after the receipt by such indemnified
party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which
such indemnified party may claim indemnification or contribution pursuant
to this Agreement (provided that failure to give such notification shall
not affect the obligations of the indemnifying person pursuant to this
Section 4 except to the extent the indemnifying party shall have been
actually prejudiced as a result of such failure). In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under these indemnification provisions for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation, unless in the reasonable judgment of
any indemnified party a conflict of interest is likely to exist between
such indemnified party and
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any other of such indemnified parties with respect to such claim, in which
event the indemnifying party shall be obligated to pay the reasonable fees
and expenses of such additional counsel or counsels. The indemnifying
party will not be subject to any liability for any settlement made
without its consent (which will not be unreasonably withheld).
(d) Contribution. If the indemnification from the indemnifying
party provided for in this Section 4 is unavailable to the indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the 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 losses, claims,
damages, liabilities and expenses in such proportion as is appropriate to
reflect the relative fault of the indemnifying party and indemnified party
in connection with the actions which resulted in such losses, claims,
damages, liabilities and expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in
paragraph (c) above, any legal and other fees and expenses reasonably
incurred by such indemnified party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4 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 paragraph.
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Notwithstanding the provisions of this Section 4, no underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, and no
Shareholder shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares of such Shareholder
were offered to the public (net of all underwriting discounts and
commissions) exceeds the amount of any damages which such Shareholder has
otherwise been required to pay by reason of such untrue statement or
omission. 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.
5. Participation in Underwritten Registrations. No
Shareholder may participate in any underwritten offering hereunder unless
such Shareholder (i) agrees to sell his Shares on the basis provided in
any underwriting arrangements approved by the Parent in its reasonable
discretion and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
6. Rule 144. For a period of one year following the date of
the completion of the "firm underwritten" offering of Shares contemplated
by Section 3.2( ) of the Purchase Agreement (or such shorter period as may
permit the sale of Shares under Rule 144 under the Securities Act without
regard to the requirement of "current public information"), the Parent
covenants that it will file the reports required to be filed by it under
the Securities Act and the Securities Exchange Act of 1934, as amended,
and the rules and regulations adopted by the Securities and Exchange
Commission ("SEC") thereunder (or, if the Parent is not required to file
such reports, it will, upon the request of any
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Shareholder make publicly available other information so long as
necessary to permit sales under Rule 144 under the Securities Act), and it
will take such further action as any Shareholder may reasonably request,
all to the extent required from time to time to enable such Shareholder to
sell Shares without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (ii) any similar
rule or regulation hereafter adopted by the SEC. Upon the request of any
Shareholder, the Parent will deliver to such Shareholder a written
statement as to whether it has complied with such requirements.
7. Remedies. Each Shareholder, in addition to being entitled
to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this
Agreement.
8. Parties in Interest; No Third Party Beneficiaries.
(a) This Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns. This Agreement and the rights and
obligations of the Parent and the Shareholders hereunder may not be
assigned by any of the parties hereto without the prior written consent of
the other parties.
(b) This Agreement is not intended, nor shall it be construed,
to confer any rights or remedies under or by reason of this Agreement upon
any person except the parties hereto and their heirs, successors and
permitted assigns.
9. Entire Agreement. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the
subject matter hereof. This Agreement supersedes all prior agreements,
arrangements and understandings of the parties with respect to such
subject matter.
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10. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
11. Headings. The section headings contained in this Agreement
are for convenience only and shall not control or affect in any way the
meaning or interpretation of the provisions of this Agreement.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without
giving effect to the conflicts of law principles of such jurisdiction.
13. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have
been duly given at the time of delivery if personally delivered or
tele-copied (with confirmation of receipt), the next day, if delivered by
nationally-recognized overnight express service, or five (5) days, if sent
by registered or certified mail (postage prepaid, return receipt
requested) to the parties at the following addresses:
(a) If to the Parent to:
Asset Alliance Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Attn: Xxxxxx Xxxxx
with copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
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(b) If to Shareholders, to the addresses provided to the
Parent at the closing of the Purchase Agreement.
or to such other address as the person to whom notice is to be given may
have previously furnished to the other in writing in the manner set forth
above, provided that notice of a change of address shall be deemed given
only upon receipt.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
on the day and year first above written.
ASSET ALLIANCE CORPORATION
By: _______________________________
Xxxxxx X. Xxxxx
Executive Vice President
METROPOLITAN CAPITAL ADVISORS, INC.
By:___________________________
Name:
Title
KJ ADVISORS, INC.
By:___________________________
Name:
Title
METROPOLITAN CAPITAL III, INC.
By:___________________________
Name:
Title:
______________________________
XXXXXXX XXXXXXX
______________________________
XXXXX XXXXXXXX
XXXXXXX XXXXXXX CHILDREN'S TRUST
______________________________
Name:
Title:
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_____________________________
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