Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of December 29, 1999, (the "Effective Date") between THCG,
Inc., a Utah corporation (the "Corporation"), and Xxxxx Xxxxx, Xx Xxxxxxxx and
Xxxxxxx Xxxxxxxxxxx (collectively, the "Stockholders"), which Stockholders are
all of the stockholders of Mercury Coast Inc., a Delaware corporation ("Mercury
Coast"), immediately prior to the consummation of the merger contemplated by the
Merger Agreement (as defined below).
Pursuant to an Agreement and Plan of Merger of even date
herewith (the "Merger Agreement") by and among the Corporation, Coast
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of the
Corporation, Mercury Coast and the Stockholders, the Corporation is acquiring by
merger all of the issued and outstanding capital stock of Mercury Coast.
Capitalized terms used herein and not otherwise defined have the meanings
assigned to them in Merger Agreement.
The Stockholders will be the beneficial owners of the
Registrable Shares (as defined below) pursuant to the transactions contemplated
in the Merger Agreement. The Corporation and the Stockholders deem it to be in
their respective best interests to set forth the rights of the Stockholders in
connection with the Registrable Shares.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Corporation and the
Investor Stockholders, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock, par value $0.01
per share, of the corporation.
"Management Shares" shall mean at any time those shares of
Common Stock owned by Xxxxxx X. Xxxx, Xxx Xxxxx or Xxxx Xxxxx, or trusts for the
benefits of members of their immediate family.
"Other Shares" shall mean at any time those shares of Common
Stock which do not constitute Primary Shares, Registrable Shares or Management
Shares.
"Primary Shares" shall mean at any time the authorized but
unissued shares of Common Stock or shares of Common Stock held by the
Corporation in its treasury.
"Registrable Shares" shall mean the shares of Common Stock
held by the Stockholders which constitute Restricted Shares.
"Restricted Shares" shall mean the shares of Common Stock any
other securities which by their terms are exercisable or exchangeable for or
convertible into Common Stock and any securities received in respect thereof, in
any case, which are held by the Stockholders and which have not theretofore been
sold to the public pursuant to a registration statement under the Securities Act
or pursuant to Rule 144.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
SECTION 2. Piggyback Registration.
(a) If the Corporation at any time proposes for any reason to
register Primary Shares or Other Shares under the Securities Act (other than on
Form S-4 or Form S-8 promulgated under the Securities Act or any successor forms
thereto), and such registration also includes Management Shares, it shall
promptly give written notice to the Stockholders of its intention so to register
the Primary Shares or Other Shares and, upon the written request, given within
30 days after delivery of any such notice by the Corporation, of any Stockholder
to include in such registration Registrable Shares (which request shall specify
the number of Registrable Shares proposed to be included in such registration),
the Corporation shall use its best efforts to cause all such Registrable Shares
to be included in such registration on the same terms and conditions as the
securities otherwise being sold in such registration. Notwithstanding the
foregoing, if the managing underwriter advises the Corporation that the
inclusion of all Registrable Shares, Primary Shares, Other Shares and Management
Shares proposed to be included in such registration would interfere with the
successful marketing (including pricing) of such shares, then the number of
Primary Shares, Registrable Shares, Other Shares and Management Shares proposed
to be included in such registration shall be included in the following order:
(i) first, the Primary Shares; and
(ii) second, the Management Shares, Other Shares
and the Registrable Shares held by the Stockholders requested to be
included in such registration, pro rata in accordance with the number
of shares proposed to be included in the registration; provided,
however, that to the extent the Other Shares consist of shares owned by
Greenwich Street Capital Partners II, L.P., GSCP Offshore Fund, L.P.,
Greenwich Fund, L.P., Greenwich Street Employees Fund, L.P. or TRV
Executive Fund, L.P., such Other Shares shall have priority and shall
not be cut back on a pro rata basis.
(b) No Stockholder may participate in any
underwritten offering hereunder unless such Stockholder (i) agrees to
sell such Stockholder's Registrable Shares on the basis provided in any
underwriting arrangements approved by the
-2-
Company and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements. Nothing in
this Section 2(b) shall be construed to create any additional rights
regarding the registration of Registrable Shares otherwise than as set
forth herein.
(c) With respect to any registration filed or to be
filed pursuant to Section 2 hereof, the Company shall be entitled to
(i) cause such registration statement to be withdrawn and the effective
ness of such registration statement terminated or (ii) in the event no
such registration statement has yet been filed or declared effective,
to delay filing or effectiveness of any such registration statement, in
either case without liability to the Stockholders.
(d) Anything contained in this Agreement
notwithstanding, when in the opinion of outside counsel to the Company,
registration of the Registrable Shares is not required by the
Securities Act and other applicable securities laws in connection with
a proposed sale of such Registrable Shares, the Stockholders shall have
no rights pursuant to Section 2 hereof to request a piggyback
registration in connection with such proposed sale and the Company
shall promptly provide to the transfer agent and the Stockholder's or
Stockholders' broker or brokers in connection with any sale transaction
an opinion to the effect set forth above and all legends related to
restrictions on transfer shall be removed from the certificates
evidencing the Registrable Shares.
SECTION 3. Preparation and Filing. If and whenever the
Corporation is under an obligation pursuant to the provisions of this Agreement
to effect the registration of any Registrable Shares, the Corporation shall, as
expeditiously as practicable:
(a) furnish, at least ten business days before filing
a registration statement that registers such Registrable Shares, a
prospectus relating thereto and any amendments or supplements relating
to such a registration statement or prospectus, to counsel selected by
the Stockholders (the "Stockholders' Counsel"), copies of all such
documents proposed to be filed (it being understood that such
ten-business-day period need not apply to successive drafts of the same
document proposed to be filed so long as such successive drafts are
supplied to the Stockholders' Counsel in advance of the proposed filing
by a period of time that is customary and reasonable under the
circumstances);
(b) notify in writing the Stockholders' Counsel
promptly (i) of the receipt by the Corporation of any notification with
respect to any comments by the Commission with respect to such
registration statement or prospectus or any amendment or supplement
thereto or any request by the Commission to amend or supplement the
same or for additional information with respect thereto, (ii) of the
receipt by the Corporation of any notification with respect to the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or prospectus or any
amendment or supplement thereto or the initiation or threatening of any
proceeding for that purpose and (iii) of the receipt by the Corporation
of any notification with respect
-3-
to the suspension of the qualification of such Registrable Shares for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes;
(c) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the Stockholders reasonably request and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the holders of such Registrable Shares to consummate the
disposition in such jurisdictions of such Registrable Shares; provided,
however, that the Corporation will not be required to qualify generally
to do business, subject itself to general taxation or consent to
general service of process in any jurisdiction where it would not
otherwise be required to do so but for this paragraph (c);
(d) furnish to the holders of such Registrable Shares
such number of copies of a summary prospectus or other prospectus,
including a preliminary prospectus, in conformity with the requirements
of the Securities Act, and such other documents (such as a term sheet)
as the holders of such Registrable Shares may reasonably request in
order to facilitate the public sale or other disposition of such
Registrable Shares;
(e) notify the holders of such Registrable Shares on
a timely basis at any time when a prospectus relating to such
Registrable Shares is required to be delivered under the Securities Act
of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(f) make available for inspection by the holders of
such Registrable Shares, any underwriter participating in any
disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by the holders of such Registrable
Shares or any underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents
and properties of the Corporation (collectively, the "Records") as
shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Corporation's officers,
directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any holders of such
Registrable Shares in connection with such registration statement;
provided, however, that any of the Information which the Corporation
determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary
to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or
(iii) such Information has been made generally available to the public;
and provided further, however, that the holders of Registrable Shares
agree that they will, upon learning that disclosure of such Information
is sought in a court of competent jurisdiction, give notice to the
Corporation and allow the Corporation, at the Corporation's expense, to
undertake appropriate action to prevent disclosure of the Information
deemed confidential;
-4-
(g) use its best efforts to obtain from its
independent certified public accountants "comfort" letters in customary
form and at customary times and covering matters of the type
customarily covered by cold comfort letters;
(h) use its best efforts to obtain from its counsel
an opinion or opinions in customary form;
(i) provide a transfer agent and registrar (which may
be the same entity and which may be the Corporation) for such
Registrable Shares;
(j) list such Registrable Shares on any national
securities exchange on which any shares of the Common Stock are listed
or, if the Common Stock is not listed on a national securities
exchange, use its best efforts to qualify such Registrable Shares for
inclusion on the Nasdaq National Market System or the Nasdaq SmallCap
Market or such other national securities exchange as the Investor shall
reasonably request;
(k) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and the securities
commission or other regulatory authority of any relevant state or other
jurisdiction and make available to its securityholders, as soon as
reasonably practicable, earnings statements (which need not be audited)
covering a period of 12 months beginning within three months after the
effective date of the registration statement, which earnings statements
shall satisfy the provisions of Section 11(a) of the Securities Act;
and
(l) use its best efforts to take all other steps
reasonably necessary to effect the registration of such Registrable
Shares contemplated hereby.
SECTION 4. Expenses. All expenses incurred by the Corporation
in complying with Section 2, including, without limitation, all registration and
filing fees (including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), fees and expenses of complying with
securities and blue sky laws, printing and distribution expenses, "road show"
and other marketing expenses, fees and expenses of the Corporation's counsel and
accountants and fees and expenses of the Stockholders' Counsel (but not the
Inspectors), shall be paid by the Corporation; provided, however, that all
underwriting discounts and selling commissions applicable to the Registrable
Shares shall not be borne by the Corporation but shall be borne by the holders
of Registrable Shares.
SECTION 5. Indemnification. In connection with any
registration of any Registrable Shares under the Securities Act pursuant to this
Agreement, the Corporation shall indemnify and hold harmless the holders of
Registrable Shares (and their heirs and personal representatives), each
underwriter, broker or any other person acting on behalf of the holders of
Registrable Shares and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several (or actions in respect
thereof), to which any of the foregoing persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
registration statement under which
-5-
such Registrable Shares were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein or otherwise filed
with the Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, or arise
out of or are based upon the 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, with respect to any prospectus, necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or any violation by the Corporation of the Securities Act or state
securities or blue sky laws applicable to the Corporation in connection with
such registration or qualification under such state securities or blue sky laws;
and shall reimburse the holders of Registrable Shares (and their heirs and
personal representatives), such underwriter, such broker or such other person
acting on behalf of the holders of Registrable Shares and each such controlling
person for any legal or other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Corporation shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in said registration statement,
preliminary prospectus, final prospectus, amendment, supplement or document
incident to registration or qualification of any Registrable Shares in reliance
upon and in conformity with written information furnished to the Corporation
through an instrument duly executed by the holders of Registrable Shares or
underwriter specifically for use in the preparation thereof.
In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, the holders of Registrable
Shares shall indemnify and hold harmless and reimburse (in the same manner and
to the same extent as set forth in the preceding paragraph of this Section 5)
the Corporation, each director of the Corporation, each officer of the
Corporation who shall sign such registration statement, each underwriter, broker
or other person acting on behalf of the holders of Registrable Shares and each
person who controls any of the foregoing persons within the meaning of the
Securities Act with respect to any statement or omission from such registration
statement, any preliminary prospectus or final prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement thereto or any
document incident to registration or qualification of any Registrable Shares, if
such statement or omission was made in reliance upon and in conformity with
written information furnished to the Corporation or such underwriter through an
instrument duly executed by the holders of Registrable Shares specifically for
use in connection with the preparation of such registration statement,
preliminary prospectus, final prospectus, amendment, supplement or document;
provided, however, that the maximum amount of liability in respect of such
indemnification shall be limited, in the case of the Stockholders, to an amount
equal to the net proceeds actually received by the Stockholders from the sale of
Registrable Shares effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of
the commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 5, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the
-6-
extent that it may wish, with counsel reasonably satisfactory to such
indemnified 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 responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, that if any indemnified party shall have reasonably
concluded that there may be one or more legal or equitable defenses available to
such indemnified party which are additional to or conflict with those available
to the indemnifying party, or that such claim or action involves or could have
an effect upon matters beyond the scope of the indemnity agreement provided in
this Section 5, the indemnifying party shall not have the right to assume the
defense of such action on behalf of such indemnified party and such indemnifying
party shall reimburse such indemnified party and any person controlling such
indemnified party for that portion of the fees and expenses of any one counsel
retained by the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section 5. Anything in this
Section 5 to the contrary notwithstanding, (i) an indemnifying party shall not
settle any claim or action or consent to the entry of any judgment therein
unless the indemnified party is fully released and discharged as a result
thereof, and (ii) an indemnified party shall not settle any claim or action or
consent to the entry of any judgment without the prior written consent of the
indemnifying party. No party who has been guilty of fraudulent misrepresentation
within the meaning of Section 11(a) of the Securities Act shall be entitled to
contribution.
If the indemnification provided for in this Section 5 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, claim, damage, liability or action referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amounts paid or payable by such indemnified
party as a result of such loss, claim, damage, liability or action 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, claim, damage,
liability or action 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.
Notwithstanding the foregoing, the maximum amount which any Investor shall be
required to contribute pursuant to the provisions of this paragraph shall be
limited to an amount equal to the net proceeds actually received by such
Investor from the sale of Registrable Securities effected pursuant to such
registration.
SECTION 6. Information by Holder. The Stockholders proposing
to sell Registrable Shares pursuant to a registration to which this Agreement
relates shall furnish to the Corporation such written information regarding
himself and the distribution proposed by him as the Corporation may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 7. Termination. This Agreement shall terminate and be
of no further force or effect when there shall not be any Restricted Shares.
-7-
SECTION 8. Successors and Assigns. This Agreement shall bind
and inure to the benefit of the Corporation, the Stockholders (and their heirs
and personal representatives) and, subject to Section 12, the respective
successors and assigns of the Corporation and the Stockholders.
SECTION 9. Assignment. This Agreement may not be assigned by
the Stockholders without the prior written consent of the Corporation, which
consent shall not be unreasonably withheld.
SECTION 10. Entire Agreement. This Agreement and the Merger
Agreement, and the other writings referred to therein or delivered pursuant
thereto, contain the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
SECTION 11. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address, facsimile number or person's
attention as may hereafter be designated in writing given as aforesaid by such
party to the other parties:
(i) if to the Corporation, to:
THCG, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopier: 9212) 223-0161
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
(ii) if to the Stockholders:
at the most current address given by such
Stockholder to the Corporation, in
accordance with the provisions of this
Section 11, which address initially is, with
respect to each Stockholder, listed on
Schedule 1 attached hereto.
with a copy to:
-8-
Law Offices of Xxxxxx X. Xxxxxxxxx, P.C.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopier, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
SECTION 12. Modifications; Amendments; Waivers. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Corporation and
the Stockholders.
SECTION 13. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
SECTION 14. Counterparts. This Agreement may be executed in
any number of counterparts, and each such counterpart hereof shall be deemed to
be an original instrument, but all such counterparts together shall constitute
but one agreement.
SECTION 15. Headings. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
SECTION 16. Remedies. The Corporation agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees that in the
event of any breach or threatened breach by the Corporation of any of its
obligations under this Agreement, the Investor shall be entitled, in addition to
all other remedies, to a decree for specific performance, injunctive relief and
other forms of equitable relief without posting any bond and without proving
that damages would be an inadequate remedy.
SECTION 17. Governing Law and Venue. THIS AGREEMENT SHALL BE
DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND
GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 18. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
-9-
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
THCG, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Co-Chief Executive Officer
/s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx
/s/ Xx Xxxxxxxx
----------------------------------
Xx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxxx
----------------------------------
Xxxxxxx Xxxxxxxxxxx
-00-
XXXXXXXX 1
Xxxxx Xxxxx
000 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
Xx Xxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Xxxxxxxxxxx
000 Xxxx 00xx Xxxxxx, X00X
Xxx Xxxx, Xxx Xxxx 00000
-11-
