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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") made and entered
into as of this 27th day of February, l998, by and among Asset Alliance
Corporation ("Parent") a Delaware corporation, and Xxxx X. Xxxxxxxxx, Xxxxxx X.
Xxxxx, Xxxxxx X. Xxxxxxx and Xxxxxxx Xxxxxxxxxx and Xxxxxx Xxxxx (each a
"Shareholder" and together, the "Shareholders").
WHEREAS, the Parent and the Shareholders are parties to the Merger
Agreement, dated as of February 20, 1998, by and among the Parent, Asset
Alliance Bricoleur Merger Co. Inc., a Delaware corporation ("Newco"), Bricoleur
Capital Management LLC, a Delaware limited liability company ("LLC"), Bricoleur
Capital Management, Inc., a Utah corporation (the "Company"), and the
Shareholders (the "Merger Agreement") pursuant to which the Shareholders will
receive, among other consideration, pro rata in accordance with their interests
in the shares of the Company, 2,880,000 shares of Common Stock, par value $.01
per share, of Parent ("Parent Common Stock") and $5,850,000 in principal amount
of convertible subordinated debentures (the "Debentures") of the Parent in the
form attached to the Merger Agreement. As used in this Agreement, the term
"Shares" refers to the shares of Parent Common Stock acquired pursuant to the
Merger Agreement, any Parent Common Stock to be acquired upon conversion of the
Debentures and, if applicable, upon exercise of the Option granted to the
Shareholders pursuant to Section 2.8(d) of the Merger Agreement and 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 that Shareholder has
requested to be so registered; and
WHEREAS, the Shareholders have requested that, in connection with the
Merger 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;
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NOW, THEREFORE, in consideration of the premises and the
agreements herein contained, the parties hereto agree as follows:
1. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Parent proposes
to register any of its equity securities under the Securities Act and
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 in excess of 1% of the then outstanding Shares (each, an
("Eligible Shareholder") with respect to which the Parent has received
written requests for inclusion therein within 15 days after the receipt
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
requested to be included in such registration, pro rata among the
requesting Eligible Shareholders, 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 included in such registration
exceeds the number which can be sold in such offering, the Parent will
include in such registration (i) first, the securi-
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ties 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 the requesting Eligible Shareholders
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 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 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) 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 mis-
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leading, 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 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,
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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 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 lia-
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bility 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. 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
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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 2.8(m) of the Merger 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 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
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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.
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.
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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
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
Attn: Xxxxxx Xxxxx
with copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
(b) If to Shareholders, to the addresses
provided to the Parent at the closing
of the Merger Agreement.
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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: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Executive Vice President
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
