Exhibit 10.3
AGREEMENT TO CONVERT AND EXCHANGE
AGREEMENT TO CONVERT AND EXCHANGE dated this 6th day of
July, 2001 by and between THCG, Inc., a Delaware corporation (the "Company"),
and Castle Creek Technology Partners LLC, a limited liability company organized
under the laws of the State of Delaware ("Castle Creek").
W I T N E S E T H:
- - - - - - - - -
WHEREAS, the Company and Castle Creek entered into a
Securities Purchase Agreement dated as of August 1, 2000 (the "Securities
Purchase Agreement") pursuant to which the Company issued to Castle Creek 5,000
shares (the "Series A Shares") of its series A convertible participating
preferred stock, par value $.01 per share (the "Series A Preferred Stock"), and
a warrant (the "Warrant") to purchase up to 396,899 shares of its common stock,
par value $.01 per share (the "Common Stock"), and agreed to register the resale
of the shares of Common Stock issuable upon conversion of the Series A Preferred
Stock and upon exercise of the Warrant pursuant to a registration rights
agreement dated as of August 2, 2000 (the "Registration Rights Agreement");
WHEREAS, pursuant to the requirements of the
Registration Rights Agreement, the Company filed with the Securities and
Exchange Commission (the "SEC") on August 31, 2000 a registration statement on
Form S-3, File No. 333-44888 (the "Registration Statement") and such
Registration Statement was declared effective by the SEC on November 30, 2000;
WHEREAS, the Company proposes to carry out certain
restructuring of the Company and its subsidiaries (the "Restructuring"),
including, without limitation, establishing a liquidating trust (the
"Liquidating Trust") for the benefit of its stockholders and transferring the
Company's portfolio of securities to the Liquidating Trust pursuant to that
certain Liquidating Trust Agreement by and among the Company and Xxxxxx X. Xxxx
and Xxx Xxxxx, as Trustees (the "Trust Agreement"), substantially in the form
attached hereto as Exhibit A, and entering into that certain Plan and Agreement
of Exchange, substantially in the form attached hereto as Exhibit B (the
"Exchange Agreement"); and
WHEREAS, in connection with the Restructuring, the
Company and Castle Creek desire to restructure the transactions provided for in
the Securities Purchase Agreement;
NOW, THEREFORE, in consideration of the premises, and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and Castle Creek, intending to be legally
bound, do hereby agree as follows:
1. Conversion and Exchange of Securities. At the Closing
provided for in Section 3 hereof, Castle Creek shall (a) convert and exchange
2,000 Series A Shares into (i) 1,250,000 shares of Common Stock (the "New
Shares"), (ii) a promissory note payable to the order of Castle Creek in the
principal amount of $1,500,000 and substantially in the form
attached hereto as Exhibit C (the "Note") and (iii) $500,000 in cash, (b) retain
3,000 Series A Shares (the "Retained Series A Shares"), and (c) amend and
restate the Warrant substantially in the form attached hereto as Exhibit D (the
"Restated Warrant").
Concurrently with (a) the closing of the transactions
contemplated in the Exchange Agreement or (b) any similar restructuring
transaction that (i) is approved by the Company's Board of Directors, (ii) is
fair from a financial point of view to the Company's stockholders and (iii) is
consummated on or before September 30, 0000, Xxxxxx Xxxxx shall contribute the
Retained Series A Shares to the Company, free from all taxes, liens, claims and
encumbrances; provided, however, that if the closing of the transactions
contemplated in the Exchange Agreement or such similar restructuring transaction
do not occur on or before September 30, 2001, Castle Creek's obligation to
contribute the Retained Series A Shares shall terminate. From the date hereof
until October 1, 2001, Castle Creek shall not sell, assign, transfer or
otherwise convey or encumber or in any other manner dispose of, by conversion or
otherwise, the Retained Series A Shares.
2. Amendment of the Securities Purchase Agreement and
Registration Rights Agreement. In connection with this Agreement and the
transactions contemplated hereby, the Securities Purchase Agreement shall be
amended pursuant to an amendment in the form attached hereto as Exhibit E (the
"SPA Amendment" and the Securities Purchase Agreement as amended, the "Amended
Securities Purchase Agreement") and the Registration Rights Agreement shall be
amended pursuant to an amendment in the form attached hereto as Exhibit F (the
"RRA Amendment" and the Registration Rights Agreement as amended, the "Amended
Registration Rights Agreement").
3. Closing. The Closing of the transactions provided for
herein (the "Closing") shall take place at the offices of the Company, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 prior to the close of business on the
date hereof or at such other place or on such other date and time as may be
agreed by the Company and Castle Creek (such date, the "Closing Date"). At the
Closing:
(a) The Company shall (i) deliver to Castle Creek a
certified check payable to the order of Castle Creek in the
amount of $500,000, (ii) at Castle Creek's option, either (x)
cause the Company's transfer agent to electronically transmit
the New Shares to Castle Creek by crediting the account of
Castle Creek's primary broker with OTC through its Deposit
Withdrawal Agent Commission ("DWAC") system or other
electronic delivery systems selected by Castle Creek, or (y)
issue and deliver to Castle Creek one or more certificate(s)
dated the Closing Date, registered in the name of Castle
Creek, or its designee, representing in the aggregate the New
Shares, (iii) execute and deliver to Castle Creek the Note,
the Restated Warrant, the SPA Amendment and the RRA Amendment,
all dated the Closing Date, and (iv) issue and deliver to
Castle Creek a certificate representing the Retained Series A
Shares; and
(b) Castle Creek shall deliver to the Company (i)
either (x) the certificate(s) representing the Series A Shares
to be converted and exchanged, duly endorsed to the Company,
or (y) a stock power duly executed by Castle
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Creek sufficient to convey title to the
shares represented by such certificate(s) to
the Company, (ii) the original manually
executed Warrant, to be cancelled as of the
Closing Date, and (iii) all counterparts of
the SPA Amendment and the RRA Amendment;
provided, however,
that the exchange of the Restated Warrant for the original manually executed
Warrant may take place within three days after the Closing Date and if Castle
Creek shall have delivered a stock power pursuant to clause (i) (y) of Section
3(b), Castle Creek shall deliver to the Company within three days after the
Closing Date the original certificate representing the Series A Shares.
4. Conditions to Closing. The obligation of Castle Creek to
convert and exchange the Series A Preferred Stock at the Closing is subject to
the satisfaction of each of the following conditions, provided that these
conditions are for Castle Creek's sole benefit and may be waived by Castle Creek
at any time in Castle Creek's sole discretion:
(a) The Company shall have delivered to Castle Creek
a certified check payable to the order of Castle Creek in the
amount of $500,000.
(b) The Company shall have executed this Agreement,
the Restated Warrant, the Note, the SPA Amendment and the RRA
Amendment and delivered the same to Castle Creek.
(c) The Company shall have delivered the New Shares
in accordance with Section 3(a)(i) hereof, and Castle Creek
shall become the record holder of the New Shares as of the
Closing Date.
(d) There shall have been no material changes in the
capitalization of the Company since the date of this
Agreement, it being understood that the exercise, conversion
or exchange of options or other securities listed on Schedule
5(a)(iii) shall not constitute a material change. The Company
shall have performed, satisfied and complied with in all
material respects the covenants and agreements required by
this Agreement to be performed or complied with by the Company
at or prior to the Closing. Castle Creek shall have received a
certificate, executed on behalf of the Company by the Chief
Executive Officer or Chief Financial Officer of the Company,
dated as of the Closing Date to the foregoing effect.
(e) No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority
of competent jurisdiction or any self-regulatory organization
having authority over the matters contemplated hereby which
prohibits the consummation of any of the transactions
contemplated by this Agreement and other Restructuring
Documents (as defined in Section 5(a)(i) hereof), including,
without limitation, the establishment of the Liquidating Trust
and the consummation of the Exchange Agreement.
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(f) Castle Creek shall have received the officer's
certificate described in Section 5(a)(iii) hereof, dated as of
the Closing Date.
(g) The Company shall have delivered to Castle Creek
certified resolutions of the Company's Board of Directors
approving a plan of complete liquidation of the Company's
subsidiary, THCG, LLC, through the Liquidating Trust, for the
benefit of the Company's stockholders; approving the Trust
Agreement, substantially in the form attached hereto as
Exhibit A; and setting the Record Date (as defined in the
Trust Agreement) for determining the stockholders that will
become the Beneficiaries (as defined in the Trust Agreement)
under the Trust Agreement.
(h) The Company shall have received the consent of
the affiliates of Greenwich Street Capital Partners II, L.P.
with respect to the transactions contemplated by this
Agreement, the Exchange Agreement and the Trust Agreement.
(i) Castle Creek shall have received an opinion of
the Company's counsel, dated as of the Closing Date,
substantially in the form attached hereto as Exhibit G.
5. Representations and Warranties.
(a) The Company hereby represents and warrants to Castle Creek as
of the date of this Agreement and as of the Closing Date as follows:
(i) Except as set forth on set forth on Schedule
5(a)(i), the Company and each of its subsidiaries is duly
organized, validity existing and in good standing under the
laws of the jurisdiction in which it is organized, and has the
requisite corporate or limited liability company power and
authority to own its properties and to carry on its business
as now being conducted. Except as set forth on set forth on
Schedule 5(a)(i), the Company and each of its subsidiaries is
duly qualified to do business and is in good standing in every
jurisdiction where the failure to so qualify would have a
Material Adverse Effect. "Material Adverse Effect" means any
material adverse effect on (i) the business, operations,
properties, financial condition or operating results of the
Company and its subsidiaries, taken as a whole on a
consolidated basis, (ii) the transactions contemplated hereby,
(iii) the Liquidating Trust, or (iv) the ability of the
Company to perform its obligations under this Agreement, the
Note or the Restated Warrant (collectively, the "Transaction
Documents", and together with the Trust Agreement and the
Exchange Agreement, the "Restructuring Documents"); provided,
however, a "Material Adverse Effect" as used herein shall not
include such adverse effects caused primarily by (w)
fluctuations in the market value of securities held by the
Company or any of its subsidiaries, (x) adverse general
economic
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conditions, (y) adverse general industry conditions, or (z)
the sale of the Note and the Restated Warrant pursuant hereto.
(ii) (a) The Company has the requisite corporate
power and authority (including, without limitation, approval
of the Company's Board of Directors) to (x) enter into, and
perform its obligations under each of the Transaction
Documents, (y) issue, sell and perform its obligations with
respect to the Note and the Restated Warrant in accordance
with the terms and conditions thereof, and (z) issue shares of
Common Stock of the Company upon the exercise of the Restated
Warrant in accordance with the terms and conditions of the
Restated Warrant; (b) the execution, delivery and performance
of the Transaction Documents by the Company and the
consummation by it of each of the transactions contemplated
hereby and thereby (including, without limitation, the
issuance of the Note and the Restated Warrant and the
reservation for issuance and the issuance of the shares of
Common Stock upon the exercise of the Restated Warrant) and
the consummation of the Restructuring contemplated by other
Restructuring Documents have been duly authorized by all
necessary corporate action and no further consent or
authorization of the Company, its board of directors, its
stockholders or any other person, body or agency is required
with respect to any of the transactions contemplated hereby or
thereby; (c) this Agreement has been, and as of the Closing
Date the other Transaction Documents will be, duly executed
and delivered by the Company; and (d) this Agreement
constitutes, and when executed and delivered by the Company
each of the other Transaction Documents will constitute, a
legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by (i) laws of general
application relating to bankruptcy, insolvency, moratorium,
reorganization, fraudulent conveyance or other similar laws of
general application, both state and federal, affecting the
enforcement of creditors' rights, and (ii) principles of
equity governing specific performance, injunctive relief and
other equitable remedies.
(iii) The capitalization of the Company as of the
date of this Agreement, including the authorized capital
stock, the number of shares issued and outstanding, the number
of shares reserved for issuance pursuant to the Company's
stock option plans, the number of shares reserved for issuance
pursuant to securities (other than the Restated Warrant),
directly or indirectly, convertible into or exercisable or
exchangeable for any shares of Common Stock and the number of
shares to be initially reserved for issuance upon the exercise
of the Restated Warrant, is set forth on Schedule 5(a)(iii).
All of such outstanding shares of capital stock have been, or
upon issuance will be, validly issued, fully paid and
non-assessable. Except as disclosed in Schedule 5(a)(iii) and
as contemplated by the Exchange Agreement, as of the date of
this Agreement, there are no outstanding options, warrants,
scrip, rights to
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subscribe for, calls or commitments of any character
whatsoever relating to, or securities or rights convertible
into or exercisable or exchangeable for, directly or
indirectly, any shares of capital stock of the Company or any
of its subsidiaries. The Company has furnished or made
available to Castle Creek true and correct copies of the
Company's Certificate of Incorporation as currently in effect
("Certificate of Incorporation") and the Company's By-laws as
currently in effect (the "By-laws"). The Company shall provide
Castle Creek with a written update of this representation
signed by the Company's Chief Executive Officer or Chief
Financial Officer on behalf of the Company as of the Closing
Date. The Company has no subsidiaries, except as set forth on
Schedule 5(a)(iii).
(iv) The New Shares and the shares of Common Stock
issuable upon exercise of the Restated Warrant have been duly
authorized and reserved for issuance by all required corporate
action on the part of the Company and when issued in
accordance with this Agreement or the Restated Warrant, as the
case may be, will be validly issued, fully paid and
non-assessable shares of Common Stock of the Company and free
from all taxes, liens, claims and encumbrances (other than
liens, claims and encumbrances placed thereon by Castle Creek
or by persons claiming by, through or under Castle Creek) and
will not be subject to preemptive rights or other similar
rights of stockholders of the Company. No further corporate
authorization or approval is required with respect to the
issuance of the New Shares and the shares of Common Stock
issuable upon exercise of the Restated Warrant.
(v) The execution, delivery and performance of each
of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated
thereby (including the issuance and reservation for issuance,
as applicable, of the New Shares and the shares of Common
Stock issuable upon the exercise of the Restated Warrant) do
not (a) result in a violation of the Certificate of
Incorporation or By-laws of the Company or the charter
documents of any of its subsidiaries, (b) conflict with, or
constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to
which the Company or any of its subsidiaries is a party
(except for such conflicts, defaults, terminations,
amendments, accelerations and cancellations as would not,
individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect), or (c) result in a violation
of any law, rule, regulation, order, judgment or decree
(including, without limitation, U.S. federal and state
securities laws and regulations) applicable to the Company or
any of its subsidiaries, or by which any property or assets of
the Company or any of its subsidiaries, is bound, except for
possible violations as would not, individually or in the
aggregate, be reasonably expected to have a Material Adverse
Effect. The Company is not required
6
to obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency
or any regulatory or self-regulatory agency or entity or
authority in order for it to execute, deliver or perform any
of its obligations under any of the Transaction Documents or
to perform its obligations in accordance with the terms hereof
or thereof, except for filing with the SEC pursuant to the
Amended Registration Rights Agreement and except for consent
of Castle Creek.
(vi) The Common Stock of the Company is registered
under Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). The Common Stock has been so
registered since May 2000 and predecessor securities of the
predecessors of the Company have been so listed for more than
one year. The Company has delivered or made available to
Castle Creek true and complete copies of all reports,
schedules, forms, statements and other documents filed by it
with the SEC since January 1, 2000 pursuant to the reporting
requirements of the Exchange Act (including all exhibits
included therein and financial statements and schedules
thereto and documents incorporated by reference therein, being
referred to herein as the "Filed SEC Documents").
(vii) Since December 31, 2000, other than as
disclosed in the Filed SEC Documents, there has been no
material adverse change and no development in the business,
properties, operations, financial condition or results of
operations of the Company that is reasonably likely to have a
Material Adverse Effect.
(viii) Except as disclosed in Schedule 5(a)(viii) or
the Filed SEC Documents, there is no action, suit or
proceeding before or by any court, public board, governmental
agency or authority, or self-regulatory organization or body
pending or, to the knowledge of the Company or any of its
subsidiaries, threatened against the Company, any of its
subsidiaries, or any of their respective directors or officers
in their capacities as such, which is reasonably likely to
have a Material Adverse Effect.
(ix) The Company acknowledges and agrees that Castle
Creek is acting independently and is not acting as a financial
advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement or the transactions
contemplated hereby, that this Agreement and the transactions
contemplated hereby, and the relationship between Castle Creek
and the Company is "arms-length", and that any statement made
by Castle Creek, or any of its representatives or agents, in
connection with this Agreement or the transactions
contemplated hereby is not advice or a recommendation, is
merely incidental to Castle Creek's purchase of the Note, the
New Shares and shares of Common Stock issuable upon the
exercise of the Restated Warrant and has not been relied upon
in any way by the Company, its officers, directors or other
representatives. The Company further represents to Castle
Creek that the
7
Company's decision to enter into this Agreement and the
transactions contemplated hereby has been based solely on an
independent evaluation by the Company and its representatives.
(x) Neither the Company nor any person acting on
behalf of the Company has conducted any "general
solicitation," as described in Rule 502(c) under Regulation D,
with respect to any of the securities being offered hereby.
(xi) Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales of any security or
solicited any offers to buy any security under circumstances
that would prevent the parties hereto from consummating the
transactions contemplated hereby pursuant to an exemption from
registration under the Securities Act of 1933, as amended (the
"Securities Act"). The transactions contemplated hereby are
exempt from the registration requirements of the Securities
Act, assuming the accuracy of the representations and
warranties herein contained of Castle Creek to the extent
relevant for such determination.
(xii) The Company has taken no action which would
give rise to any claim by any person for brokerage
commissions, finder's fees or similar payments by Castle Creek
relating to this Agreement or the transactions contemplated
hereby.
(b) Castle Creek hereby represents and warrants to the
Company as of the date of this Agreement and as of the Closing Date as
follows:
(i) Castle Creek is duly organized, validly
existing and in good standing as a limited liability company
under the laws of the State of Delaware and has the requisite
limited liability company power and authority to own its
properties and to carry on its business as now being
conducted. Castle Creek is duly qualified to do business and
is in good standing in every jurisdiction where the failure to
so qualify would have a Castle Creek Material Adverse Effect.
"Castle Creek Material Adverse Effect" means any material
adverse effect on (i) the business, operations, properties,
financial condition or operating results of Castle Creek and
its subsidiaries, taken as a whole on a consolidated basis,
(ii) the transactions contemplated hereby, or (iii) the
ability of Castle Creek to perform its obligations under this
Agreement.
(ii) (a) Castle Creek has the requisite limited
liability company power and authority to enter into, and
perform its obligations under this Agreement; (b) the
execution, delivery and performance of this Agreement by
Castle Creek and the consummation by it of each of the
transactions contemplated hereby have been duly authorized by
all necessary limited liability company action and no further
consent or authorization of Castle
8
Creek, its managers, its members or any other person, body or
agency is required with respect to any of the transactions
contemplated hereby; (c) this Agreement has been duly executed
and delivered by Castle Creek; and (d) this Agreement
constitutes a legal, valid and binding obligation of Castle
Creek enforceable against Castle Creek in accordance with its
terms, except as enforcement thereof may be limited by (i)
laws of general application relating to bankruptcy,
insolvency, moratorium, reorganization or other similar laws
of general application, both state and federal, affecting the
enforcement of creditors' rights, and (ii) principles of
equity governing specific performance, injunctive relief and
other equitable remedies.
(iii) Castle Creek is an "accredited investor" within
the meaning of Rule 501 under the Securities Act, and, at the
Closing, Castle Creek will acquire the New Shares and the
Restated Warrant and, upon the exercise of the Restated
Warrant, will acquire the shares of Common Stock issuable upon
such exercise, for its own account, for investment and not
with any view to the sale, transfer or other disposition
thereof in violation of the registration requirements of the
Securities Act or any state securities laws, and Castle Creek
will not sell, transfer or otherwise dispose of any such
shares of Common Stock in violation of any such registration
requirements.
(iv) Castle Creek is the record and beneficial owner
of the Series A Shares and the Warrant, free and clear of any
and all taxes, liens, claims or other encumbrances.
(v) The execution, delivery and performance of this
Agreement by Castle Creek and the consummation by Castle Creek
of the transactions contemplated hereby do not (a) result in a
violation of the certificate of formation or the limited
liability company agreement of Castle Creek, (b) conflict
with, or constitute a default (or an event which with notice
or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or
instrument to which Castle Creek or any of its subsidiaries is
a party (except for such conflicts, defaults, terminations,
amendments, accelerations and cancellations as would not,
individually or in the aggregate, reasonably be expected to
have a Castle Creek Material Adverse Effect), or (c) result in
a violation of any law, rule, regulation, order, judgment or
decree (including, without limitation, U.S. federal and state
securities laws and regulations) applicable to the Company or
any of its subsidiaries, or by which any property or assets of
the Company or any of its subsidiaries, is bound, except for
possible violations as would not, individually or in the
aggregate, be reasonably expected to have a Castle Creek
Material Adverse Effect. Castle Creek is not required to
obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency
or any regulatory or self-regulatory
9
agency or entity or authority in order for it to execute,
deliver or perform any of its obligations under this Agreement
or to perform its obligations in accordance with the terms
hereof.
6. Covenants by the Company. The Company covenants as follows:
(a) The Company agrees to file a Form 8-K disclosing this
Agreement and the transactions contemplated hereby with the SEC as
soon as practical following the Closing Date, but in no event more
than five (5) business days following the Closing Date. Such Form 8-K
shall contain as exhibits this Agreement, the form of the Note, the
form of the Restated Warrant and the Amended Registration Rights
Agreement. Without limiting any of the Company's obligations under
any of the Transaction Documents from and after the Closing Date,
neither the Company nor any person acting on its behalf shall take
any action which would adversely affect any exemptions from
registration under the Securities Act with respect to the
transactions contemplated hereby.
(b) On the Closing Date and thereafter, the Company shall
have authorized and reserved and keep available for issuance not less
than 396,899 (subject to equitable adjustment for any stock splits,
stock dividends, reclassification or similar events and subject to
reduction for the number of any shares of Common Stock issued upon
the exercise of the Restated Warrant) shares of Common Stock solely
for the purpose of effecting the exercise of the Restated Warrant.
(c) The Company will not, and will not permit any Subsidiary
to, enter into any Contract, or any amendment, modification,
extension or supplement to any existing Contract, which contractually
prohibits the Company from performing its obligations under any of
the Transaction Documents.
(d) On the Record Date, the Company shall execute and
deliver the Trust Agreement, substantially in the form attached
hereto as Exhibit A, and shall identify Castle Creek as the record
holder of the New Shares on the stockholder list of the Company.
7. Approval and Waivers by Castle Creek.
(a) Castle Creek, as holder of the Series A Shares, hereby
approves the conveyance to the Trust of the Transferred Assets (as
defined in the Trust Agreement) and the distribution of the interests
in the Trust to the Beneficiaries (as defined in the Trust
Agreement), and hereby waives its right to participate in such
distribution pursuant to Section D of Article XI of the Certificate
of Designations, Preferences and Rights of Series A Convertible
Participating Preferred Stock of THCG, Inc., other than as to the
right to receive the consideration contemplated under Section 1 of
this Agreement.
(b) Castle Creek hereby waives its rights to any adjustment
in the conversion price of the Series A Shares, to the extent such an
adjustment would
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otherwise result from the issuance of shares of Common Stock equal to
approximately 67% of the shares of Common Stock then outstanding
after such issuance to Xxxxxx & Co. Securities, Inc. in accordance
with the terms of the Exchange Agreement.
8. Termination. This Agreement shall be terminated and be of no
further force or effect if the Closing shall not have occurred on or prior to
July 6, 2001.
9. Miscellaneous. The Company and Castle Creek hereby further
covenant and agree as follows:
(a) This Agreement, together with the Note, the Restated
Warrant and the Amended Registration Rights Agreement, constitutes
the entire agreement between the parties with respect to the subject
matter hereof and thereof. Neither this Agreement, the Note, the
Restated Warrant nor the Amended Registration Rights Agreement may be
amended or modified, nor may any provision hereof or thereof be
waived, unless such amendment, modification or waiver is in writing
and signed by the party or parties against which such amendment,
modification or waiver is to be enforced.
(b) Each party shall use its reasonable commercial efforts
to take such further action and shall execute and deliver such
further documents or instruments as may be reasonably requested by
the other party to carry out the intent and fully to effectuate the
provisions of this Agreement.
(c) All representations and warranties contained in this
Agreement shall survive the execution and delivery hereof and the
Closing hereunder.
(d) The headings contained in this Agreement are for
convenience of reference only and shall not alter or affect the
meaning or interpretation of any provision hereof.
(e) Any notice under this Agreement shall be in writing,
shall be addressed to the parties as indicated below and shall be
delivered personally or sent by facsimile machine confirmed telecopy
or first class mail, postage prepaid:
If to THCG:
THCG, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Chief Executive Officer
Facsimile No.: (000) 000-0000
If to Castle Creek:
Castle Creek Technology Partners LLC
000 X. Xxxxxxx Xxxxxxxxx, Xxxxx 0000
00
Xxxxxxx, Xxxxxxxx 00000
Attn.: Xxx Xxxx
Facsimile No.: (000) 000-0000
Notices shall be deemed delivered when received. Any
party may change its address or the person's attention
or facsimile number to which notices to it shall be
addressed by giving notice of such change in accordance
with the provisions of this Section 6(e).
(f) This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which, taken together,
shall constitute the same agreement.
(g) This Agreement shall be governed by, interpreted,
construed and enforced in accordance with the internal laws of the
State of New York applicable to contracts made and to be performed
entirely within the State of New York.
(h) This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and assigns. The Company
shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of Castle Creek.
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IN WITNESS WHEREOF, the Company and Castle Creek have
duly executed and delivered this Agreement as of the day and year first above
written.
THCG, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
CASTLE CREEK TECHNOLOGY
PARTNERS LLC
By: Castle Creek Partners L.L.C.
Its: Investment Manager
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
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