1
EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 11, 1997, among Asset
Alliance Corporation, a Delaware corporation ("AAC"), Silverado Capital
Management LLC, a Delaware limited liability company ("Silverado"), and Xxxxxxx
Xxxxx ("Xxxxx").
R E C I T A L S
WHEREAS, pursuant to the terms of a Limited Liability Company Operating
Agreement (the "Operating Agreement"), dated as of March 11, 1997 among Asset
Alliance Holding Corp. ("AAHC") and Xxxxx, Silverado has acquired and may
hereafter acquire shares of the Common Stock, par value $0.01 per share, of AAC
("AAC Common Stock") and options to purchase shares of AAC Common Stock
("Options"); and
WHEREAS, pursuant to the Operating Agreement, Silverado may pay to
Xxxxx and other employees of Silverado shares of AAC Common Stock and Options
which Silverado has acquired and may hereafter acquire;
WHEREAS, AAC has agreed to grant to Silverado and the employees of
Silverado certain registration rights with respect to any shares of AAC Common
Stock and Options acquired by Silverado or the employees of Silverado pursuant
to the terms of the Operating Agreement; and
WHEREAS, the parties hereto desire to define the registration rights of
Silverado and the employees of Silverado on the terms and subject to the
conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
2
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Employee Holders: shall mean all employees of Silverado holding
Registrable Securities;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended;
Person: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
Principals: shall mean Xxxxx X. Xxxxxxx and Xxxxxx X. Xxxxx;
Qualified Public Offering: shall mean the closing of an underwritten
public offering by AAC pursuant to a registration statement filed and declared
effective under the Securities Act covering the offer and sale of AAC Common
Stock for the account of AAC;
register, registered and registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) any shares of AAC Common Stock
contributed by AAHC to Silverado pursuant to Section 2.1 of the Operating
Agreement (whether held by Silverado or paid to Xxxxx or the other employees of
Silverado as contemplated by the Operating Agreement), and (B) any shares of AAC
Common Stock acquired by employees of Silverado upon exercise of the Options,
and (C) any shares of AAC Common Stock issued to Silverado or employees of
Silverado as a dividend or other distribution with respect to, or in exchange
for or in replacement of, the shares of AAC Common Stock referred to in clause
(A) or (B); provided, that Registrable Securities shall not include (i)
securities with respect to which a registration statement with respect to the
sale of such securities has become effective under the Securities Act and all
such securities have been disposed of in accordance with such registration
statement, or (ii) such securities as are actually sold pursuant to Rule 144 (or
any successor provision thereto) under the Securities Act;
Registration Expenses: shall mean all expenses incurred by AAC in
compliance with Article 2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for AAC, blue sky fees and
2
3
expenses and the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular employees of AAC,
which shall be paid in any event by AAC);
Security, Securities: shall have the meaning set forth in Section 2(1)
of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for Silverado and the Employee Holders.
2. REGISTRATION RIGHTS
(a) AAC agrees that if at any time after the consummation of its first
Qualified Public Offering it shall determine to register any additional
securities for its own account or for the account of any shareholder exercising
registration rights, other than a registration relating solely to employee
benefit plans on Form S-8 or any successor form, or a registration on any
registration form which does not permit secondary sales or does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of Registrable Securities, AAC will:
(i) Promptly give Silverado and the Employee Holders written
notice thereof (which shall include the number of shares AAC proposes
to register and, if known, the name of the proposed underwriter); and
(ii) Within thirty (30) days after the date of delivery of the
written notice from AAC described in clause (i) above, use all
reasonable efforts to include in such registration all the Registrable
Securities specified in a written request or requests made by Silverado
and the Employee Holders (the "Requesting Stockholders"). If the
underwriter advises AAC that marketing considerations require a
limitation on the number of shares offered pursuant to any registration
statement, then AAC may offer all of the securities it proposes to
register for its own account and for the accounts of the parties to the
Shareholders Agreement (the "Shareholders Agreement") among AAC, Xxxxxx
X. Xxxxxxxxx & Co. and the Principals, or the maximum amount that the
underwriter considers saleable and such limitation on any remaining
securities that may, in the opinion of the underwriter, be sold will be
imposed pro rata among such other shareholders (including the
Requesting Stockholders) who request inclusion of securities in such
registration according to the number of securities each such
shareholder requested to be included in such registration.
3
4
(iii) The Requesting Stockholders acknowledge and agree that
AAC shall select the underwriter for an offering made pursuant to these
provisions.
(b) The Requesting Stockholders acknowledge and agree that AAC need not
effect a registration under these provisions if (i) in the written opinion of
counsel for AAC, the Requesting Stockholders may sell without registration under
the Securities Act all Registrable Securities for which the Requesting
Stockholders requested registration under the provisions of the Act and in the
manner and in the quantity in which the Registrable Securities were proposed to
be sold, or (ii) AAC shall have obtained from the Commission a "no-action"
letter to that effect. AAC agrees that all Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to these
provisions shall be paid by AAC, other than Selling Expenses consisting of the
fees and expenses of the Requesting Stockholders' legal counsel and underwriting
discounts or commissions with respect to the Requesting Stockholder's
Registrable Securities.
(c) Notwithstanding the foregoing, if, at any time after giving such
written notice of its intention to effect such registration and prior to the
effective date of the registration statement filed in connection with such
registration, AAC shall determine for any reason not to register such equity
securities AAC may, at its election, give written notice of such determination
to the Requesting Stockholders and thereupon AAC shall be relieved of its
obligation to register such Registrable Securities in connection with the
registration of such equity securities.
(d) If the registration of which AAC gives notice is for a registered
public offering involving an underwriting, AAC shall so advise Silverado and
Xxxxx as a part of the written notice given pursuant to Section 2(a) above. In
such event, the right of the Requesting Stockholders to registration pursuant to
this Article 2 shall be conditioned upon such Requesting Stockholders'
participation in such underwriting and the inclusion of such Requesting
Stockholders' Registrable Securities in the underwriting to the extent provided
herein. The Requesting Stockholders whose Registrable Securities are to be
included in such registration shall (together with AAC and the other
stockholders distributing their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for the underwriting by AAC or such
shareholder of AAC as shall have requested such registration, as the case may
be. Such underwriting agreement will contain such representations and warranties
by AAC and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution and the provision of opinions
of counsel and accountants' letters, and the representations and warranties by,
and the other agreements on the part of, AAC to and for the benefit of such
4
5
underwriters shall also be made to and for the benefit of the Requesting
Stockholders whose Registrable Securities are to be included in such
registration. Notwithstanding any other provision of this Article 2, if the
representative determines that marketing factors require a limitation on the
number of shares to be underwritten, AAC shall so advise all holders of
securities requesting registration, and the number of shares of securities that
are entitled to be included in the registration and underwriting shall be
allocated as set forth in Section 2(a) hereof. If the Requesting Stockholder
disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to AAC and the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such underwriting
shall be withdrawn from such registration.
(e) Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Article 2 shall be borne by AAC, and all Selling Expenses shall be borne by each
Requesting Stockholder of the Registrable Securities so registered pro rata on
the basis of the number of its or his Registrable Securities so registered;
provided that if AAC agrees to pay the fees and costs of one counsel for one or
more AAC stockholders (other than the parties to the Shareholders Agreement)
whose shares are also being registered, then AAC shall pay the fees and costs of
such counsel with respect to such counsel representing Silverado and the
Employee Holders.
(f) Termination. The registration rights set forth herein shall not be
available to a Requesting Stockholder if, in the opinion of counsel to AAC, all
of the Registrable Securities then owned by such Requesting Stockholder could be
sold in any 90-day period pursuant to Rule 144 (without giving effect to the
provisions of Rule 144(k)).
3. REGISTRATION PROCEDURES.
In the case of each registration effected by AAC pursuant to Section 2,
AAC will keep the Requesting Stockholders advised in writing as to the
initiation of each registration and as to the completion thereof. At its
expense, AAC will:
(a) furnish to the Requesting Stockholders, and to any underwriter
before filing with the Commission, copies of any registration statement
(including all exhibits) and any prospectus forming a part thereof and any
amendments and supplements thereto (including all documents incorporated or
deemed incorporated by reference therein prior to the effectiveness of such
registration statement and including each preliminary prospectus, any summary
prospectus or any term sheet (as such term is used in Rule 434 under the
Securities Act)) and any other prospectus filed under Rule 424 under the
Securities Act, which documents, other than documents incorporated or deemed
incorporated by reference, will be subject to the review of the Requesting
Stockholders and any such underwriter for
5
6
a period of at least five business days, and AAC shall not file any such
registration statement or such prospectus or any amendment or supplement to such
registration statement or prospectus to which either Requesting Stockholder or
any such underwriter shall reasonably object within five business days after the
receipt thereof; a Requesting Stockholder or such underwriter(s), if any, shall
be deemed to have reasonably objected to such filing only if the registration
statement, amendment, prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(b) furnish to the Requesting Stockholders and to any underwriter, such
number of conformed copies of the applicable registration statement and of each
amendment and supplement thereto (in each case including all exhibits) and such
number of copies of the prospectus forming a part of such registration statement
(including each preliminary prospectus, any summary prospectus or any term sheet
(as such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, including without
limitation documents incorporated or deemed to be incorporated by reference
prior to the effectiveness of such registration, as either Requesting
Stockholder or any such underwriter, from time to time may reasonably request;
(c) to the extent practicable, promptly prior to the filing of any
document that is to be incorporated by reference into any registration statement
or prospectus forming a part thereof subsequent to the effectiveness thereof,
and in any event no later than the date such document is filed with the
Commission, provide copies of such document to the Requesting Stockholders, if
requested, and to any underwriter, make representatives of AAC available for
discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as the
Requesting Stockholders or any such underwriter reasonably may request;
(d) make available at reasonable times for inspection by the Requesting
Stockholders, any underwriter participating in any disposition pursuant to such
registration and any attorney or accountant retained by the Requesting
Stockholder or any such underwriter, all financial and other records, pertinent
corporate documents and properties of AAC and cause the officers, directors and
employees of AAC to supply all information reasonably requested by either
Requesting Stockholder and any such underwriters, attorneys or accountants in
connection with such registration subsequent to the filing of the applicable
registration statement and prior to the effectiveness of the applicable
registration statement;
(e) use its reasonable best efforts (x) to register or qualify all
Registrable Securities and other securities covered by such registration under
such other securities or blue sky laws of such States of the United States of
America where an exemption is not
6
7
available and as the sellers of Registrable Securities covered by such
registration shall reasonably request, (y) to keep such registration or
qualification in effect for so long as the applicable registration statement
remains in effect, and (z) to take any other action which may be reasonably
necessary or advisable to enable such sellers to consummate the disposition in
such jurisdictions of the Registrable Securities to be sold by such sellers,
except that AAC shall not for any such purpose be required to qualify generally
to do business as a foreign corporation in any jurisdiction where it is not so
qualified, or to subject itself to taxation in any such jurisdiction, or to
execute a general consent to service of process in effecting such registration,
qualification or compliance, unless AAC is already subject to service in such
jurisdiction and except as may be required by the Securities Act or applicable
rules or regulations thereunder;
(f) use its reasonable best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be necessary
in the opinion of counsel to AAC and counsel to the holders of Registrable
Securities to enable the holders thereof to consummate the disposition of such
Registrable Securities;
(g) promptly notify each holder of Registrable Securities covered by a
registration statement (A) upon discovery that, or upon the happening of any
event as a result of which, the prospectus forming a part of such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, (B) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation of proceedings for that purpose, (C) of any request by the Commission
for (1) amendments to such registration statement or any document incorporated
or deemed to be incorporated by reference in any such registration statement,
(2) supplements to the prospectus forming a part of such registration statement
or (3) additional information, (D) of the receipt by AAC of any notification
with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction
or the initiation of any proceeding for such purpose, and at the request of any
such holder promptly prepare and furnish to it a reasonable number of copies of
a supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
7
8
(h) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of any such registration, or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Registrable Securities for sale in any jurisdiction;
(i) if requested by either Requesting Stockholder, or any underwriter,
promptly incorporate in such registration statement or prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as the
Requesting Stockholder and any underwriter may reasonably request to have
included therein, including, without limitation, information relating to the
"plan of distribution" of the Registrable Securities, information with respect
to the principal amount or number of shares of Registrable Securities being sold
to such underwriter, the purchase price being paid therefor and any other terms
of the offering of the Registrable Securities to be sold in such offering and
make all required filings of any such prospectus supplement or post-effective
amendment as soon as practicable after AAC is notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(j) furnish to the Requesting Stockholders, addressed to them, an
opinion of counsel for AAC, dated the date of the closing under the underwriting
agreement, if any, or the date of effectiveness of the registration statement if
such registration is not an underwritten offering, and use its reasonable best
efforts to furnish to the Requesting Stockholders, addressed to them, a "cold
comfort" letter signed by the independent certified public accountants who have
certified AAC's financial statements included in such registration, covering
substantially the same matters with respect to such registration (and the
prospectus included therein) and, in the case of such accountants' letter, with
respect to events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in accountants' letters
delivered to underwriters in underwritten public offerings of securities and
such other matters as the Requesting Stockholders may reasonably request;
(k) provide promptly to the Requesting Stockholders upon request any
document filed by AAC with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act; and
(l) use its reasonable best efforts to cause all Registrable Securities
included in any registration pursuant hereto to be listed on each securities
exchange on which securities of the same class are then listed or, if not then
listed on any securities exchange, to be eligible for trading in any
over-the-counter market or trading system in which securities of the same class
are then traded.
8
9
4. INDEMNIFICATION.
(a) AAC will indemnify the Requesting Stockholders, as applicable, with
respect to each registration which has been effected pursuant to this Agreement,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by AAC of the Securities Act or the Exchange Act or
any rule or regulation thereunder applicable to AAC and relating to action or
inaction required of AAC in connection with any such registration, qualification
or compliance, and will reimburse the Requesting Stockholders for any legal and
any other expenses reasonably incurred in connection with investigating and
defending any such claim, loss, damage, liability or action, provided that AAC
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission based upon written information furnished to AAC by a Requesting
Stockholder specifically for use in such prospectus, offering circular or other
document.
9
10
(b) Each Requesting Stockholder will, if Registrable Securities held by
him are included in the securities as to which such registration, qualification
or compliance is being effected, indemnify AAC, each of its directors and
officers and each underwriter, if any, of AAC's securities covered by such a
registration statement, each person who controls AAC or such underwriter, each
other stockholder of AAC and each of their officers, directors, members and
partners, and each person controlling such other stockholder against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering circular
or other document made by such Requesting Stockholder, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements by such Requesting Stockholder therein not
misleading, and will reimburse AAC and such other stockholders, directors,
officers, partners, members, persons, underwriters or control persons for any
legal or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to AAC by such Requesting
Stockholder and stated to be specifically for use therein; provided, however,
that the obligations of each Requesting Stockholder hereunder shall be limited
to an amount equal to the net proceeds to each Requesting Stockholder of
securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 4 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld) and the Indemnified Party may participate in such
defense at such party's expense (unless the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of one such counsel for all Indemnified Parties shall be at
the expense of the Indemnifying Party), and provided further that the failure of
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 4 unless the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter
10
11
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with the defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 4 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions which resulted in such loss, liability, claim,
damage or expense, as well as any other relevant equitable considerations. The
relative fault of the Indemnifying Party and of the Indemnified 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 the Indemnifying Party
or by the Indemnified Party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(e) The foregoing indemnity agreement of AAC and the Requesting
Stockholders is subject to the condition that, insofar as they relate to any
loss, claim, liability or damage made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the Commission at
the time the registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Commission Rule 424(b) (the
"Final Prospectus"), such indemnity or contribution agreement shall not inure to
the benefit of any underwriter or Requesting Stockholder (but only if the
Requesting Stockholder was required to deliver such Final Prospectus) if a copy
of the Final Prospectus was furnished to the underwriter and was not furnished
to the person asserting the loss, liability, claim or damage at or prior to the
time such action is required by the Securities Act.
5. MISCELLANEOUS.
(a) This Agreement may be amended, modified or supplemented only by a
written instrument executed by all of the parties hereto.
11
12
(b) Except as otherwise provided in this Agreement, any failure of any
of the parties to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but any such
waiver, or the failure to insist upon strict compliance with any obligation,
covenant, agreement or condition herein, shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure or breach.
(c) Each and every representation, warranty, covenant and agreement
contained in this Agreement or in any document delivered pursuant to or in
connection with this Agreement shall not be affected by any investigation made
by any party.
(d) All notices and other communications hereunder shall be in writing
and shall be deemed given if delivered personally or by facsimile transmission,
telexed or mailed by reputable overnight delivery service or by registered or
certified mail (return receipt requested), postage prepaid, to the parties at
the following addresses (or at such other address as any party shall specify by
like notice; provided that notices of a change of address shall be effective
only upon receipt thereof):
(i) if to Xxxxx, at his address as set forth
on the signature pages hereof:
with a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier No.: 000-000-0000
(ii) if to AAC to:
Asset Alliance Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telecopier No.: 000-000-0000
12
13
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier No.: 000-000-0000
(iii) if to Silverado, to its principal office address.
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxx & Xxxxxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
(iv) if to any Employee Holder, at such
Employee Holder's address as it shall
appear in the records of Silverado.
(e) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
executors, personal representatives, successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any party hereto without the prior written consent of the
other parties (other than any assignment by AAC to any party which purchases all
of the capital stock or substantially all of the assets of AAC or any successor
to the business of AAC, which may be made without any such consents). Any
purported assignment in violation of the provisions hereof shall be void.
(f) This Agreement shall be governed by the laws of the State of New
York (regardless of the laws that might otherwise govern under applicable
conflict of laws principles) as to all matters, including but not limited to
matters of validity, construction, effect, performance and remedies.
(g) The parties agree that any action or proceeding relating in any way
to this Agreement shall be brought and enforced in the Supreme Court of the
State of New York for the County of New York or in the United States District
Court for the Southern District of New York, and the parties hereby waive any
objection to jurisdiction or venue, and any
13
14
right to a trial before a jury, in any such proceeding commenced in or removed
to such courts.
(h) This Agreement may be executed in any number of counterparts, and
by any party on separate counterparts, each of which as so executed and
delivered shall be deemed an original, but all of which together shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement as to any party hereto to produce or account for more
than one such counterpart executed and delivered by such party.
(i) This Agreement embodies the entire agreement and understanding of
the parties hereto in respect of the transactions contemplated by this Agreement
and supersedes all prior agreements and understandings between the parties with
respect thereto.
(j) This Agreement may be terminated: (i) at any time by the written
agreement of all of the parties hereto; (ii) upon the redemption, disposal or
cancellation of all shares of AAC Common Stock (and all agreements and
instruments convertible or granting rights to acquire shares of AAC Common
Stock) owned by Xxxxx.
(k) In the event of termination of this Agreement and abandonment of
the transactions contemplated hereby by any of the parties hereto written notice
thereof shall forthwith be given by the terminating party to the other parties
and this Agreement shall terminate and the transactions contemplated hereby
shall be abandoned, without further action by any of the parties hereto. If this
Agreement is terminated, none of the parties hereto nor any of their respective
directors, officers or affiliates, as the case may be, shall have any liability
or further obligation to any of the other parties or any of their respective
directors, officers or affiliates, as the case may be.
(The remainder of this page is left blank intentionally.)
14
15
IN WITNESS WHEREOF, Xxxxx has executed this Agreement and AAC
and Silverado have caused this Agreement to be executed by their duly authorized
representative, each as of the date first above written.
ASSET ALLIANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Operating Officer
SILVERADO CAPITAL MANAGEMENT LLC
By: Asset Alliance Manager Corp.,
its Manager
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Manager
/s/ Xxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxx Xxxxx
Address: 33 Grift Xxxx Xxxx
Xxxxx Xxxxxx Xxxxx, X.X. 00000
