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Exhibit 4.5
REGISTRATION AND TAG ALONG
RIGHTS AGREEMENT
REGISTRATION AND TAG ALONG RIGHTS AGREEMENT, dated as of October 1,
1996, among, Asset Alliance Corporation, a Delaware corporation ("AAC"), Trust
Advisory Group, Inc., a Connecticut corporation ("TAG"), and Xxxxxx X. Xxxxx and
Xxxxx X. Xxxxxxx (together, the "Principals" and each a "Principal"), pursuant
to the Purchase Agreement (as defined below).
R E C I T A L S
WHEREAS, TAG has, pursuant to the terms of a Preferred Interest
Purchase Agreement (the "Purchase Agreement"), dated as of September 30, 1996
among AAC, Asset Alliance Holding Corp., and TAG, Trust Advisors LLC, and Xxxx
X. Xxxxxxx and Xxxxxxx X. Xxxxxxx (together, the "TAG Stockholders"), may
acquire shares of the Common Stock, par value $0.01 per share, of AAC ("AAC
Common Stock"); and
WHEREAS, AAC has agreed to grant TAG certain registration rights with
respect to any shares of AAC Common Stock acquired by TAG pursuant to the terms
of the Purchase Agreement; and
WHEREAS, the Principals have agreed to grant TAG certain participation
rights with respect to future sales of AAC Common Stock; and
WHEREAS, the parties hereto desire to define the registration and
participation rights of TAG 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:
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Convertible Subordinated Debenture: shall mean the Convertible
Subordinated Debenture issued to TAG by AAC on the date hereof in the aggregate
principal amount of $750,000;
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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;
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
acquired by TAG upon conversion of the Convertible Subordinated Debenture, (B)
any shares of AAC Common Stock acquired by TAG upon exercise of the Warrants,
and (C) any shares of AAC Common Stock acquired by the TAG Stockholders upon
exercise of the Options, and (D) any shares of AAC Common Stock issued to TAG 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), (B) or
(C); 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 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 TAG.
2. REGISTRATION RIGHTS
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(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 Securities, AAC will:
(i) Promptly give TAG and the TAG Stockholders 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 TAG or
either of the TAG Stockholders (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 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.
(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 Stockholders'
Registrable Securities.
(c) Notwithstanding the foregoing, if, at any time after giving such
written notice of its
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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 TAG and each of
the TAG Stockholders as a part of the written notice given pursuant to Section
2(a) above. In such event, the right of each of the Requesting Stockholders to
registration pursuant to this Article 2 shall be conditioned upon such
Requesting Stockholder's participation in such underwriting and the inclusion of
such Requesting Stockholder's 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
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 any of the Requesting
Stockholders disapproves of the terms of any such underwriting, he or it 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 the
Requesting Stockholders of the Registrable Securities so registered pro rata on
the basis of the number of their Registrable Securities so registered.
(f) Termination. The registration rights set forth herein shall not be
available to any 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)).
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3. REGISTRATION PROCEDURES. In the case of each registration effected by
AAC pursuant to Section 2, AAC will keep the Requesting Stockholders, as
applicable, advised in writing as to the initiation of each registration and as
to the completion thereof. At its expense, AAC will:
(a) furnish to each Requesting Stockholder, 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 the review of the Requesting
Stockholders and any such underwriter for 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 any 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 each Requesting Stockholder 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 each of the Requesting
Stockholders 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 any
Requesting Stockholder or any such underwriter reasonably may request;
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(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
Stockholders 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 the
Requesting Stockholders 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 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
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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;
(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 any 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
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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.
4. INDEMNIFICATION.
(a) AAC will indemnify each of 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 each of 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 the Requesting Stockholders specifically for use in such
prospectus, offering circular or other document.
(b) Each of the Requesting Stockholders will, if Registrable Securities
held by it 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
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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 of the Requesting Stockholders hereunder
shall be limited to an amount equal to the net proceeds to such 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 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.
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(e) Notwithstanding the foregoing, to the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with any underwritten public offering contemplated by this
Agreement are in conflict with the foregoing provisions, the provisions in such
underwriting agreement shall be controlling.
(f) The foregoing indemnity agreement of AAC and 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 such
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. TAG ALONG RIGHTS
(a) If at any time prior to a Qualified Public Offering, either of the
Principals (a "Selling Principal") desires to sell thirty three percent (33%) or
more of the shares of AAC Common Stock owned by it to a third party (a "Proposed
Transferee"), and those shares of AAC Common Stock to be transferred (the
"Offered Shares") have not been purchased by AAC or another stockholder of AAC,
each of TAG and the TAG Stockholders shall have the right to sell to the
Proposed Transferee, as a condition to such sale by the Selling Principal, at
the same price per share and on the same terms and conditions as involved in
such sale by the Selling Principal, a pro rata portion of the amount of shares
of AAC Common Stock proposed to be sold to the Proposed Transferee. The "pro
rata portion" of shares of AAC Common Stock which TAG and the TAG Stockholders
shall be entitled to sell to the Proposed Transferee shall be that number of
shares of AAC Common Stock as shall equal the number of Offered Shares proposed
to be sold to the Proposed Transferee multiplied by a fraction, the numerator of
which is the aggregate of all shares of AAC Common Stock which are then held by
TAG or the TAG Stockholder, and the denominator of which is the aggregate of all
shares of AAC Common Stock which are then held by the Selling Principal and all
other shareholders wishing to participate in any sale under this Section 5(a).
(b) In the event that a Selling Principal wishes to make a sale to a
Proposed Transferee which is subject to this Section 5 it shall give to each of
TAG and the TAG Stockholders notice of such proposed sale, stating the number of
Offered Shares proposed to be sold to the Proposed Transferee. Such notice shall
be given at least 20 days prior to the date of the proposed sale to the Proposed
Transferee. Each shareholder wishing to so participate in any sale under Section
5(a) above shall notify the Selling Principal in writing of such intention
within 15 days after such shareholder's receipt of the notice described in the
preceding sentence.
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(c) The Selling Principal and each participating shareholder shall sell
to the Proposed Transferee all, or at the option of the Proposed Transferee, any
part of the shares of AAC Common Stock proposed to be sold by them at not less
than the price and upon other terms and conditions, if any, not more favorable
to the Proposed Transferee than those in the notice provided by the Selling
Principal under subparagraph (b) above; provided however, that any purchase of
less than all of such shares of AAC Common Stock by the Proposed Transferee
shall be made from the Selling Principal and each participating shareholder pro
rata based upon the relative number of the shares of AAC Common Stock that the
Selling Principal and each participating shareholder is otherwise entitled to
sell pursuant to this Section 5.
6. MISCELLANEOUS.
(a) This Agreement may be amended, modified or supplemented only by a
written instrument executed by all of the parties hereto.
(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 survive the Closing and shall not be
affected by any investigation made by any party; provided, however, that this
Section 6(c) shall not be deemed to affect the survival periods contained in the
Purchase Agreement.
(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 either of the TAG Stockholders, at such
person's address as set forth on the
signature pages hereof and if to TAG to:
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Trust Advisory Group, Inc.
0 Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, President
Telecopier No.: 000-000-0000
in either case with a copy (which shall not constitute notice)
to:
Xxxx Xxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, III, Esq.
Telecopier No.: 000-000-0000
(ii) If to either of the Principals, at such
person's address as set forth on the
signature pages hereof and if to AAC to:
Asset Alliance Holding Corp.
00 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Telecopier No.: 000-000-0000
in either case 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
(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 an affiliate of AAC or 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.
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13
(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 New
York conflict of laws principles) as to all matters, including but not limited
to matters of validity, construction, effect, performance and remedies.
(g) Except as provided herein, any dispute, controversy or claim
arising out of or relating to this Agreement or the transactions contemplated
hereby shall be settled and finally determined by arbitration in New York, New
York, or at such other location as the parties may agree, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association (the "AAA")
in force at the time of such arbitration. Judgment upon any award rendered by
such an arbitration may be rendered in any court having jurisdiction. All fees
and charges of the American Arbitration Association and of the arbitrators and
all arbitration-related costs of the parties shall be borne as the arbitrators
shall determine in their award.
Any arbitration pursuant to this Section 6(g) shall be conducted by
three arbitrators. One arbitrator shall be selected by AAC and Principals, one
arbitrator shall be selected by TAG and the third arbitrator shall be selected
by the two arbitrators so selected. The party initiating arbitration shall name
its arbitrator simultaneously. The respondent shall name its arbitrator within
15 days after it receives notice. The two arbitrators selected by the parties
shall select a third arbitrator within 15 days. If the parties fail to comply
with the foregoing, all remaining arbitrators shall be selected in accordance
with the Commercial Arbitration Rules of the AAA. The written decision of the
arbitrators shall be binding, final and conclusive upon the parties. Any party
may apply to a court of competent jurisdiction to enforce the award of the
arbitrators. The procedures specified in this Section 6(g) shall be the sole and
exclusive procedures for the resolution of disputes between the parties arising
out of or relating to this Agreement; provided, however, that a party may seek a
preliminary injunction or other preliminary judicial relief from a court of
competent jurisdiction if in the judgment of such party such action is necessary
to avoid irreparable injury. Despite such action, the parties will continue to
participate in good faith in the procedures specified in this Section 6(g) (it
being understood and agreed that after the initial decision of such court as to
such preliminary injunction or other preliminary judicial relief and after
decision of any appellate body or the expiration of all time periods for
appellate review thereof, the parties shall thereafter submit the dispute,
controversy or claim to arbitration pursuant to this Section 6(g)). The
arbitrators shall be empowered to award equitable or injunctive relief. The
award of damages, if any, shall be limited to actual damages. The arbitrators
are not empowered to award punitive damages.
(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.
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14
(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 TAG and the TAG Stockholders.
(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.
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15
IN WITNESS WHEREOF, the TAG Stockholders and the Principals have each
executed this Agreement and TAG and AAC have each caused this Agreement to be
executed by its duly authorized officer, 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
TRUST ADVISORY GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
TAG STOCKHOLDERS:
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Address: 00 Xxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
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16
PRINCIPALS:
/s/ Xxxxx X. Xxxxxxx
____________________________________
Name: Xxxxx X. Xxxxxxx
Address: 0000 Xxxxx Xxxxxx, Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
/s/ Xxxxxx X. Xxxxx
____________________________________
Name: Xxxxxx X. Xxxxx
Address: 000 Xxxx 00xx Xxxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
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