EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into as of
______________, 2006, by and among Tailwind Financial Inc., a Delaware
corporation (the "COMPANY") and the undersigned Investors listed on the
signature page hereto (each, an "INVESTOR" and collectively, the "INVESTORS").
WHEREAS, as of the date hereof the Investors collectively hold all of the
issued and outstanding securities of the Company (the "INVESTOR SHARES");
WHEREAS, the Company has issued or will issue pursuant to a binding
agreement with each of the Investors an aggregate of 4,000,000 warrants (the
"PRIVATE WARRANTS"), each to purchase one share of Common Stock (the "PRIVATE
WARRANT SHARES"); and
WHEREAS, the Investors and the Company desire to enter into this Agreement
to provide the Investors with certain rights relating to the registration of (i)
the Investor Shares (ii) the Private Warrants, and (iii) the Private Warrant
Shares.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS. The following capitalized terms used herein have the
following meanings:
"AGREEMENT" means this Agreement, as amended, restated, supplemented, or
otherwise modified from time to time.
"BOARD" means the board of directors of the Company.
"COMMISSION" means the Securities and Exchange Commission, or any other
federal agency then administering the Securities Act or the Exchange Act.
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company.
"COMPANY" is defined in the preamble to this Agreement.
"DEMAND REGISTRATION" is defined in Section 2.1.1.
"DEMANDING HOLDER" is defined in Section 2.1.1.
"DEUTSCHE BANK" means Deutsche Bank Securities Inc.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
"FORM S-3" is defined in Section 2.3.
"INDEMNIFIED PARTY" is defined in Section 4.3.
"INDEMNIFYING PARTY" is defined in Section 4.3.
"INVESTOR" is defined in the preamble to this Agreement.
"INVESTOR INDEMNIFIED PARTY" is defined in Section 4.1.
"INVESTOR SHARES" is defined in the recitals to this Agreement.
"MAXIMUM NUMBER OF SHARES" is defined in Section 2.1.4.
"NOTICES" is defined in Section 6.3.
"OPTION SECURITIES" is defined in Section 2.1.4.
"PERSON" means an individual, a partnership, a limited liability company, a
joint venture, a corporation, a trust, an unincorporated organization, a
government or any department or agency thereof or any entity similar to any of
the foregoing.
"PIGGY-BACK REGISTRATION" is defined in Section 2.2.1.
"PRIVATE WARRANTS" is defined in the recitals to this Agreement.
"PRIVATE WARRANT SHARES" is defined in the recitals to this Agreement.
"REGISTER," "REGISTERED" and "REGISTRATION" mean a registration effected by
preparing and filing a registration statement or similar document in compliance
with the requirements of the Securities Act, and such registration statement
becoming effective.
"REGISTRABLE SECURITIES" mean the Investor Shares, Private Warrants and
Private Warrant Shares owned or held by the Investors. Registrable Securities
include any warrants, shares of capital stock or other securities of the Company
issued as a dividend or other distribution with respect to or in exchange for or
in replacement of Investor Shares. As to any particular Registrable Securities,
such securities shall cease to be Registrable Securities when: (a) a
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall have been
sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent public distribution of them
shall not require registration under the Securities Act; (c) such securities
shall have ceased to be outstanding, or (d) the Commission makes a definitive
determination to the Company that the Registrable Securities are salable under
Rule 144(k).
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission in compliance with the Securities Act for a public
offering and sale of Common
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Stock (other than a registration statement on Form S-4 or Form S-8, or their
successors, or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another entity).
"RELEASE DATE" means the date on which the Investor Shares or Private
Warrants are disbursed from escrow pursuant to [Section 3] of that certain
Securities Escrow Agreement dated as of ______ ___, 2006 by and among the
parties hereto and American Stock Transfer & Trust Company.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder, all as the same
shall be in effect at the time.
"UNDERWRITER" means a securities dealer who purchases any Registrable
Securities as principal in an underwritten offering and not as part of such
dealer's market-making activities.
"UNIT PURCHASE OPTION" is defined in Section 2.1.4.
2. REGISTRATION RIGHTS.
2.1. DEMAND REGISTRATION.
2.1.1. REQUEST FOR REGISTRATION. With respect to the Investor
Shares, at any time commencing three (3) months prior to, and from time to
time on or after the Release Date, and with respect to the Private Warrants
and Private Warrant Shares, on or after the date the Private Warrants become
eligible for resale, the holders of a majority-in-interest of the Registrable
Securities, on an as-converted to Common Stock basis, held by the Investors
or the permitted transferees of the Investors, may make a written demand for
registration under the Securities Act of all or part of their Registrable
Securities (a "DEMAND REGISTRATION"). Any demand for a Demand Registration
shall specify the number of shares of Registrable Securities proposed to be
sold and the intended method(s) of distribution thereof. The Company will
notify all holders of Registrable Securities of the demand, and each holder
of Registrable Securities who wishes to include all or a portion of such
holder's Registrable Securities in the Demand Registration (each such holder
including shares of Registrable Securities in such registration, a "DEMANDING
HOLDER") shall so notify the Company in writing within fifteen (15) days
after the receipt by the holder of the notice from the Company. Upon any such
request, the Demanding Holders shall be entitled to have their Registrable
Securities included in the Demand Registration, subject to Section 2.1.4 and
the provisos set forth in Section 3.1.1. The Company shall not be obligated
to effect more than an aggregate of two (2) Demand Registrations under this
Section 2.1.1 in respect of Registrable Securities.
2.1.2. EFFECTIVE REGISTRATION. A registration will not count as a
Demand Registration until the Registration Statement filed with the Commission
with respect to such Demand Registration has been declared effective and the
Company has complied with all of its material obligations under this Agreement
with respect thereto; provided, however, that if, after such Registration
Statement has been declared effective, the offering of Registrable Securities
pursuant to a Demand Registration is interfered with by any stop order or
injunction of the Commission or any other governmental agency or court, the
Registration Statement with respect to such Demand Registration will be deemed
not to have been declared effective, unless and
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until, (i) such stop order or injunction is removed, rescinded or otherwise
terminated, and (ii) a majority-in-interest, on an as-converted to Common Stock
basis, of the Demanding Holders thereafter elects to continue the offering;
provided, further, that the Company shall not be obligated to file a second
Registration Statement until a Registration Statement that has been filed is
counted as a Demand Registration or is terminated.
2.1.3. UNDERWRITTEN OFFERING. If a majority-in-interest, on an
as-converted to Common Stock basis, of the Demanding Holders so elects and such
holders so advise the Company as part of their written demand for a Demand
Registration, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of an underwritten offering. In such
event, the right of any holder to include its Registrable Securities in such
registration shall be conditioned upon such holder's participation in such
underwriting and the inclusion of such holder's Registrable Securities in the
underwriting to the extent provided herein. All Demanding Holders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the Underwriter or Underwriters
selected for such underwriting by a majority-in-interest, on an as-converted to
Common Stock basis, of the holders initiating the Demand Registration.
2.1.4. REDUCTION OF OFFERING. If the managing Underwriter or
Underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding Holders in writing that the dollar amount
or number of shares of Registrable Securities which the Demanding Holders desire
to sell, taken together with all other shares of Common Stock or other
securities which the Company desires to sell and the shares of Common Stock, if
any, as to which registration has been requested pursuant to written contractual
piggy-back registration rights held by other stockholders of the Company who
desire to sell, exceeds the maximum dollar amount or maximum number of shares
that can be sold in such offering without adversely affecting the proposed
offering price, the timing, the distribution method, or the probability of
success of such offering (such maximum dollar amount or maximum number of
shares, as applicable, the "MAXIMUM NUMBER OF SHARES"), then the Company shall
include in such registration: (i) first, the Registrable Securities as to which
Demand Registration has been requested by the Demanding Holders (pro rata in
accordance with the number of shares that each such Person has requested be
included in such registration, regardless of the number of shares held by each
such Person (such proportion is referred to herein as "PRO RATA")) that can be
sold without exceeding the Maximum Number of Shares; (ii) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (i), the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares;
(iii) third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (i) and (ii), the shares of Common Stock or
other securities registrable pursuant to the terms of the Unit Purchase Option
issued to Deutsche Bank or its designees in connection with the Company's
initial public offering (the "UNIT PURCHASE OPTION" and such registrable
securities, the "OPTION SECURITIES") as to which "piggy-back" registration has
been requested by the holders thereof, Pro Rata, that can be sold without
exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses (i),
(ii), and (iii), the shares of Common Stock or other securities for the account
of other Persons that the Company is
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obligated to register pursuant to written contractual arrangements with such
Persons and that can be sold without exceeding the Maximum Number of Shares.
2.1.5. WITHDRAWAL. If a majority-in-interest, on an as-converted to
Common Stock basis, of the Demanding Holders disapproves of the terms of any
underwriting or are not entitled to include all of their Registrable Securities
in any offering, such majority-in-interest of the Demanding Holders may elect to
withdraw from such offering by giving written notice to the Company and the
Underwriter or Underwriters of their request to withdraw prior to the
effectiveness of the Registration Statement filed with the Commission with
respect to such Demand Registration. If the majority-in-interest, on an
as-converted to Common Stock basis, of the Demanding Holders withdraws from a
proposed offering relating to a Demand Registration, then such registration
shall not count as a Demand Registration provided for in Section 2.1.
2.1.6. PERMITTED DELAYS. The Company shall be entitled to postpone
the filing of any Registration Statement under this Section 2.1, if (a) at
any time prior to the filing of such Registration Statement the Board
determines, in its good faith business judgment, that such registration and
offering would materially and adversely affect any financing, acquisition,
corporate reorganization, or other material transaction involving the
Company, and (b) the Company delivers to the Demanding Holders written notice
thereof within five (5) business days of the date of receipt of such request
for Demand Registration; provided that all such periods of postponement may
not exceed 45 days during any 365 day period.
2.2. PIGGY-BACK REGISTRATION.
2.2.1. PIGGY-BACK RIGHTS. If at any time (a) with respect to the
Investor Shares, on or after the Release Date, and (b) with respect to the
Private Warrants and Private Warrant Shares, on or after the date the Private
Warrants become eligible for resale, the Company proposes to file a Registration
Statement under the Securities Act with respect to an offering of equity
securities, or securities or other obligations exercisable or exchangeable for,
or convertible into, equity securities, by the Company for its own account or
for stockholders of the Company for their account (or by the Company and by
stockholders of the Company including, without limitation, pursuant to Section
2.1), other than a Registration Statement (i) filed in connection with any
employee stock option or other benefit plan, (ii) for an exchange offer or
offering of securities solely to the Company's existing stockholders, (iii) for
an offering of debt that is convertible into equity securities of the Company or
(iv) for a dividend reinvestment plan, then the Company shall (x) give written
notice of such proposed filing to the holders of Registrable Securities as soon
as practicable but in no event less than ten (10) days before the anticipated
filing date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name
of the proposed managing Underwriter or Underwriters, if any, of the offering,
and (y) offer to the holders of Registrable Securities in such notice the
opportunity to register the sale of such number of shares of Registrable
Securities as such holders may request in writing within five (5) days following
receipt of such notice (a "PIGGY-BACK REGISTRATION"). The Company shall cause
such Registrable Securities to be included in such registration and shall use
best efforts to cause the managing Underwriter or Underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in a Piggy-Back Registration on the same terms and conditions as any
similar securities of the Company and to permit the sale or other disposition of
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such Registrable Securities in accordance with the intended method(s) of
distribution thereof. All holders of Registrable Securities proposing to
distribute their securities through a Piggy-Back Registration that involves an
Underwriter or Underwriters shall enter into an underwriting agreement in
customary form with the Underwriter or Underwriters selected for such Piggy-Back
Registration.
2.2.2. REDUCTION OF OFFERING. If the managing Underwriter or
Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in
writing that the dollar amount or number of shares of Common Stock which the
Company desires to sell, taken together with shares of Common Stock, if any, as
to which registration has been demanded pursuant to written contractual
arrangements with Persons other than the holders of Registrable Securities
hereunder, the Registrable Securities as to which registration has been
requested under this Section 2.2, and the shares of Common Stock, if any, as to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other stockholders of the Company, exceeds the
Maximum Number of Shares, then the Company shall include in any such
registration:
(a) If the registration is undertaken for the Company's account: (A)
first, the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of
Shares; (B) second, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clause (A), the shares of Common Stock or
other securities, if any, comprised of Registrable Securities and Option
Securities, as to which registration has been requested pursuant to the
applicable written contractual piggy-back registration rights of such
security holders, Pro Rata, that can be sold without exceeding the Maximum
Number of Shares; and (C) third, to the extent that the Maximum Number of
shares has not been reached under the foregoing clauses (A) and (B), the
shares of Common Stock or other securities for the account of other Persons
that the Company is obligated to register pursuant to written contractual
piggy-back registration rights with such Persons and that can be sold
without exceeding the Maximum Number of Shares;
(b) If the registration is a "demand" registration undertaken at the
demand of holders of Option Securities, (A) first, the shares of Common
Stock or other securities for the account of the demanding Persons, Pro
Rata, that can be sold without exceeding the Maximum Number of Shares; (B)
second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (A), the shares of Common Stock or other
securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (C) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), the shares of Registrable Securities, Pro Rata, as to which
registration has been requested pursuant to the terms hereof, that can be
sold without exceeding the Maximum Number of Shares; and (D) fourth, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clauses (A), (B) and (C), the shares of Common Stock or other
securities for the account of other Persons that the Company is obligated
to register pursuant to written contractual arrangements with such Persons,
that can be sold without exceeding the Maximum Number of Shares; and
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(c) If the registration is a "demand" registration undertaken at the
demand of Persons other than either the holders of Registrable Securities
or of Option Securities, (A) first, the shares of Common Stock or other
securities for the account of the demanding Persons that can be sold
without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of
Shares; (C) third, to the extent that the Maximum Number of Shares has not
been reached under the foregoing clauses (A) and (B), collectively the
shares of Common Stock or other securities comprised of Registrable
Securities and Option Securities, Pro Rata, as to which registration has
been requested pursuant to the terms hereof and of the Unit Purchase
Option, as applicable, that can be sold without exceeding the Maximum
Number of Shares; and (D) fourth, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (A), (B) and (C),
the shares of Common Stock or other securities for the account of other
Persons that the Company is obligated to register pursuant to written
contractual arrangements with such Persons, that can be sold without
exceeding the Maximum Number of Shares.
2.2.3. WITHDRAWAL. Any holder of Registrable Securities may elect to
withdraw such holder's request for inclusion of Registrable Securities in any
Piggy-Back Registration by giving written notice to the Company of such request
to withdraw prior to the effectiveness of the Registration Statement. The
Company (whether on its own determination or as the result of a withdrawal by
Persons making a demand pursuant to written contractual obligations) may
withdraw a registration statement at any time prior to the effectiveness of the
Registration Statement. Notwithstanding any such withdrawal, the Company shall
pay all expenses incurred by the holders of Registrable Securities in connection
with such Piggy-Back Registration as provided in Section 3.3.
2.2.4. PERMITTED DELAYS. The Company shall be entitled to postpone
the filing of any Registration Statement under this Section 2.2, if (a) at
any time prior to the filing of such Registration Statement the Board
determines, in its good faith business judgment, that such registration and
offering would materially and adversely affect any financing, acquisition,
corporate reorganization, or other material transaction involving the
Company, and (b) the Company delivers to the holder of Registrable Securities
requesting a Piggy-Back Registration written notice thereof within five (5)
business days of the date of receipt by the Company of such request for
Piggy-Back Registration; provided that all such periods of postponement may
not exceed 45 days during any 365 day period.
2.3. REGISTRATIONS ON FORM S-3. The holders of Registrable Securities may
at any time and from time to time, request in writing that the Company register
the resale of any or all of such Registrable Securities on Form S-3 or any
similar short-form registration which may be available at such time ("FORM
S-3"); provided, however, that the Company shall not be obligated to effect such
request through an underwritten offering. Upon receipt of such written request,
the Company will promptly give written notice of the proposed registration to
all other holders of Registrable Securities, and, as soon as practicable
thereafter, effect the registration of all or such portion of such holder's or
holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities or other securities of the
Company,
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if any, of any other holder or holders joining in such request as are specified
in a written request given within fifteen (15) days after receipt of such
written notice from the Company; provided, however, that the Company shall not
be obligated to effect any such registration pursuant to this Section 2.3: (i)
if Form S-3 is not available for such offering; or (ii) if the holders of the
Registrable Securities, together with the holders of any other securities of the
Company entitled to inclusion in such registration, propose to sell Registrable
Securities and such other securities (if any) at any aggregate price to the
public of less than $500,000. Registrations effected pursuant to this Section
2.3 shall not be counted as Demand Registrations effected pursuant to Section
2.1.
3. REGISTRATION PROCEDURES.
3.1. FILINGS; INFORMATION. Whenever the Company is required to effect the
registration of any Registrable Securities pursuant to Section 2, the Company
shall use best efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended method(s) of distribution thereof as
expeditiously as practicable, and in connection with any such request:
3.1.1. FILING REGISTRATION STATEMENT. The Company shall, as
expeditiously as possible and in any event within sixty (60) days after receipt
of a request for a Demand Registration pursuant to Section 2.1, prepare and file
with the Commission a Registration Statement on any form for which the Company
then qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of all Registrable Securities to be
registered thereunder in accordance with the intended method(s) of distribution
thereof, and shall use best efforts to cause such Registration Statement to
become and remain effective for the period required by Section 3.1.3; provided,
however, that the Company shall have the right to defer any Demand Registration
for up to thirty (30) days, and any Piggy-Back Registration for such period as
may be applicable to deferment of any demand registration to which such
Piggy-Back Registration relates, in each case if the Company shall furnish to
the holders a certificate signed by the Chief Executive Officer or Chairman of
the Company stating that, in the good faith judgment of the Board, it would be
materially detrimental to the Company and its stockholders for such Registration
Statement to be effected at such time; provided further, however, that the
Company shall not have the right to exercise the right set forth in the
immediately preceding proviso more than once in any 365-day period in respect of
a Demand Registration hereunder.
3.1.2. COPIES. The Company shall, prior to filing a Registration
Statement or prospectus, or any amendment or supplement thereto, furnish without
charge to the holders of Registrable Securities included in such registration,
and such holders' legal counsel, copies of such Registration Statement as
proposed to be filed, each amendment and supplement to such Registration
Statement (in each case including all exhibits thereto and documents
incorporated by reference therein), the prospectus included in such Registration
Statement (including each preliminary prospectus), and such other documents as
the holders of Registrable Securities included in such registration or legal
counsel for any such holders may request in order to facilitate the disposition
of the Registrable Securities owned by such holders.
3.1.3. AMENDMENTS AND SUPPLEMENTS. The Company shall prepare and
file with the Commission such amendments, including post-effective amendments,
and supplements to such Registration Statement and the prospectus used in
connection therewith as may be
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necessary to keep such Registration Statement effective and in compliance with
the provisions of the Securities Act until all Registrable Securities and other
securities covered by such Registration Statement have been disposed of in
accordance with the intended method(s) of distribution set forth in such
Registration Statement (which period shall not exceed the sum of one hundred
eighty (180) days plus any period during which any such disposition is
interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been withdrawn.
3.1.4. NOTIFICATION. After the filing of a Registration Statement,
the Company shall promptly, and in no event more than two (2) business days
after such filing, notify the holders of Registrable Securities included in such
Registration Statement of such filing, and shall further notify such holders
within two (2) business days of the occurrence of any of the following: (i) when
such Registration Statement becomes effective; (ii) when any post-effective
amendment to such Registration Statement becomes effective; (iii) the issuance
or threatened issuance by the Commission of any stop order (and the Company
shall take all actions required to prevent the entry of such stop order or to
remove it if entered); and (iv) any request by the Commission for any amendment
or supplement to such Registration Statement or any prospectus relating thereto
or for additional information or of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the securities covered by such
Registration Statement, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and promptly make
available to the holders of Registrable Securities included in such Registration
Statement any such supplement or amendment; except that before filing with the
Commission a Registration Statement or prospectus or any amendment or supplement
thereto, including documents incorporated by reference, the Company shall
furnish to the holders of Registrable Securities included in such Registration
Statement and to the legal counsel for any such holders, copies of all such
documents proposed to be filed sufficiently in advance of filing to provide such
holders and legal counsel with a reasonable opportunity to review such documents
and comment thereon, and the Company shall not file any Registration Statement
or prospectus or amendment or supplement thereto, including documents
incorporated by reference, to which such holders or their legal counsel shall
object.
3.1.5. STATE SECURITIES LAWS COMPLIANCE. The Company shall use its
best efforts to (i) register or qualify the Registrable Securities covered by
the Registration Statement under such securities or "blue sky" laws of such
jurisdictions in the United States as the holders of Registrable Securities
included in such Registration Statement (in light of their intended plan of
distribution) may request and (ii) take such action necessary to cause such
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental authorities as may be necessary by
virtue of the business and operations of the Company and do any and all other
acts and things that may be necessary or advisable to enable the holders of
Registrable Securities included in such Registration Statement to consummate the
disposition of such Registrable Securities in such jurisdictions; provided,
however, that the Company shall not be required to qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph or subject itself to taxation in any such jurisdiction.
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3.1.6. AGREEMENTS FOR DISPOSITION. The Company shall enter into
customary agreements (including, if applicable, an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities. The
representations, warranties and covenants of the Company in any underwriting
agreement which are made to or for the benefit of any Underwriters, to the
extent applicable, shall also be made to and for the benefit of the holders of
Registrable Securities included in such registration statement. No holder of
Registrable Securities included in such registration statement shall be required
to make any representations or warranties in the underwriting agreement except,
if applicable, with respect to such holder's organization, good standing,
authority, title to Registrable Securities, lack of conflict of such sale with
such holder's material agreements and organizational documents, and with respect
to written information relating to such holder that such holder has furnished in
writing expressly for inclusion in such Registration Statement.
3.1.7. COOPERATION. The principal executive officer of the Company,
the principal financial officer of the Company, the principal accounting officer
of the Company and all other officers and members of the management of the
Company shall cooperate fully in any offering of Registrable Securities
hereunder, which cooperation shall include, without limitation, the preparation
of the Registration Statement with respect to such offering and all other
offering materials and related documents, and participation in meetings with
Underwriters, attorneys, accountants and potential investors.
3.1.8. RECORDS. The Company shall make available for inspection by
the holders of Registrable Securities included in such Registration Statement,
any Underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained by any
holder of Registrable Securities included in such Registration Statement or any
Underwriter, all financial and other records, pertinent corporate documents and
properties of the Company, as shall be necessary to enable them to exercise
their due diligence responsibility, and cause the Company's officers, directors
and employees to supply all information requested by any of them in connection
with such Registration Statement.
3.1.9. OPINIONS AND COMFORT LETTERS. The Company shall furnish to
each holder of Registrable Securities included in any Registration Statement a
signed counterpart, addressed to such holder, of (i) any opinion of counsel to
the Company delivered to any Underwriter and (ii) any comfort letter from the
Company's independent public accountants delivered to any Underwriter. In the
event no legal opinion is delivered to any Underwriter, the Company shall
furnish to each holder of Registrable Securities included in such Registration
Statement, at any time that such holder elects to use a prospectus, an opinion
of counsel to the Company to the effect that the Registration Statement
containing such prospectus has been declared effective and that no stop order is
in effect.
3.1.10. EARNINGS STATEMENT. The Company shall comply with all
applicable rules and regulations of the Commission and the Securities Act, and
make available to its stockholders, as soon as practicable, an earnings
statement covering a period of twelve (12) months, beginning within three (3)
months after the effective date of the registration
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statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder.
3.1.11. LISTING. The Company shall use its best efforts to cause all
Registrable Securities included in any registration to be listed on such
exchanges or otherwise designated for trading in the same manner as similar
securities issued by the Company are then listed or designated or, if no such
similar securities are then listed or designated, in a manner satisfactory to
the majority-in-interest, on an as-converted to Common Stock basis, of the
holders of Registrable Securities included in such registration.
3.2. OBLIGATION TO SUSPEND DISTRIBUTION. Upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
3.1.4(iv), or, in the case of a resale registration on Form S-3 pursuant to
Section 2.3 hereof, upon any suspension by the Company, pursuant to a written
xxxxxxx xxxxxxx compliance program adopted by the Board, of the ability of all
"insiders" covered by such program to transact in the Company's securities
because of the existence of material non-public information, each holder of
Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such holder
receives the supplemented or amended prospectus contemplated by Section
3.1.4(iv) or the restriction on the ability of "insiders" to transact in the
Company's securities is removed, as applicable, and, if so directed by the
Company, each such holder will deliver to the Company all copies, other than
permanent file copies then in such holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice.
3.3. REGISTRATION EXPENSES. The Company shall bear all costs and expenses
incurred in connection with any Demand Registration pursuant to Section 2.1, any
Piggy-Back Registration pursuant to Section 2.2, and any registration on Form
S-3 effected pursuant to Section 2.3, and all expenses incurred in performing or
complying with its other obligations under this Agreement, whether or not the
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or "blue sky" laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities); (iii)
printing expenses; (iv) the Company's internal expenses (including, without
limitation, all salaries and expenses of its officers and employees); (v) the
fees and expenses incurred in connection with the listing of the Registrable
Securities as required by Section 3.1.11; (vi) National Association of
Securities Dealers, Inc. fees; (vii) fees and disbursements of counsel for the
Company and fees and expenses for independent certified public accountants
retained by the Company (including the expenses or costs associated with the
delivery of any opinions or comfort letters requested pursuant to Section
3.1.9); (viii) the fees and expenses of any special experts retained by the
Company in connection with such registration and (ix) the fees and expenses of
one legal counsel selected by the holders of a majority-in-interest, on an
as-converted to Common Stock basis, of the Registrable Securities included in
such registration. The Company shall have no obligation to pay any underwriting
discounts or selling commissions attributable to the Registrable Securities
being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders. Additionally, in an underwritten
offering, all selling stockholders and the Company shall
11
bear the expenses of the underwriter pro rata in proportion to the respective
amount of shares each is selling in such offering.
3.4. INFORMATION. The holders of Registrable Securities shall provide such
information as may reasonably be requested by the Company, or the managing
Underwriter, if any, in connection with the preparation of any Registration
Statement, including amendments and supplements thereto, in order to effect the
registration of any Registrable Securities under the Securities Act pursuant to
Section 2 and in connection with the Company's obligation to comply with federal
and applicable state securities laws.
4. INDEMNIFICATION AND CONTRIBUTION.
4.1. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless each Investor and each other holder of Registrable Securities, and
each of their respective officers, employees, affiliates, directors, partners,
members, attorneys and agents, and each Person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) an Investor and each other holder of Registrable Securities (each, an
"INVESTOR INDEMNIFIED PARTY"), from and against any expenses, losses, judgments,
claims, damages or liabilities, whether joint or several, arising out of or
based upon any untrue statement (or allegedly untrue statement) of a material
fact contained in any Registration Statement under which the sale of such
Registrable Securities was registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arising out of or based upon any omission (or alleged omission) to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or
any rule or regulation promulgated thereunder applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration; and the Company shall promptly reimburse the Investor
Indemnified Party for any legal and any other expenses reasonably incurred by
such Investor Indemnified Party in connection with investigating and defending
any such expense, loss, judgment, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent that
any such expense, loss, claim, damage or liability arises out of or is based
upon any untrue statement or allegedly untrue statement or omission or alleged
omission made in such Registration Statement, preliminary prospectus, final
prospectus, or summary prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company, in
writing, by such selling holder expressly for use therein. The Company also
shall indemnify any Underwriter of the Registrable Securities, their officers,
affiliates, directors, partners, members and agents and each Person who controls
such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
4.2. INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. Each selling
holder of Registrable Securities will, in the event that any registration is
being effected under the Securities Act pursuant to this Agreement of any
Registrable Securities held by such selling holder, indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any),
and each other selling holder and each other Person, if any, who controls
12
another selling holder or such underwriter within the meaning of the Securities
Act, against any losses, claims, judgments, damages or liabilities, whether
joint or several, insofar as such losses, claims, judgments, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or allegedly untrue statement of a material fact contained in
any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or the alleged omission to state a material fact
required to be stated therein or necessary to make the statement therein not
misleading, if the statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by such selling
holder expressly for use therein, and shall reimburse the Company, its directors
and officers, and each other selling holder or controlling Person for any legal
or other expenses reasonably incurred by any of them in connection with
investigation or defending any such loss, claim, damage, liability or action.
Each selling holder's indemnification obligations hereunder shall be several and
not joint and shall be limited to the amount of any net proceeds actually
received by such selling holder.
4.3. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by any
Person of any notice of any loss, claim, damage or liability or any action in
respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such
Person (the "INDEMNIFIED PARTY") shall, if a claim in respect thereof is to be
made against any other Person for indemnification hereunder, notify such other
Person (the "INDEMNIFYING PARTY") in writing of the loss, claim, judgment,
damage, liability or action; provided, however, that the failure by the
Indemnified Party to notify the Indemnifying Party shall not relieve the
Indemnifying Party from any liability which the Indemnifying Party may have to
such Indemnified Party hereunder, except and solely to the extent the
Indemnifying Party is actually prejudiced by such failure. If the Indemnified
Party is seeking indemnification with respect to any claim or action brought
against the Indemnified Party, then the Indemnifying Party shall be entitled to
participate in such claim or action, and, to the extent that it wishes, jointly
with all other Indemnifying Parties, to assume control of the defense thereof
with counsel satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume control of
the defense of such claim or action, the Indemnifying Party shall not be liable
to the Indemnified Party for any legal or other expenses subsequently incurred
by the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that in any action in
which both the Indemnified Party and the Indemnifying Party are named as
defendants, the Indemnified Party shall have the right to employ separate
counsel (but no more than one such separate counsel) to represent the
Indemnified Party and its controlling Persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Indemnified Party against the Indemnifying Party, with the fees and expenses of
such counsel to be paid by such Indemnifying Party if, based upon the written
opinion of counsel of such Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, consent to entry of judgment or effect any
settlement of any claim or pending or threatened proceeding in respect of which
the Indemnified Party is or could have been a party and indemnity could have
been sought hereunder by such
13
Indemnified Party, unless such judgment or settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such claim
or proceeding.
4.4. CONTRIBUTION.
4.4.1. If the indemnification provided for in the foregoing Sections
4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect of any loss,
claim, damage, liability or action referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted
in such loss, claim, damage, liability or action, as well as any other relevant
equitable considerations. The relative fault of any Indemnified Party and any
Indemnifying 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 such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
4.4.2. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding Section
4.4.3. The amount paid or payable by an Indemnified Party as a
result of any loss, claim, damage, liability or action referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 4.4, no holder of
Registrable Securities shall be required to contribute any amount in excess of
the dollar amount of the net proceeds (after payment of any underwriting fees,
discounts, commissions or taxes) actually received by such holder from the sale
of Registrable Securities which gave rise to such contribution obligation. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
5. UNDERWRITING AND DISTRIBUTION.
5.1. RULE 144. The Company covenants that it shall file any reports
required to be filed by it under the Securities Act and the Exchange Act and
shall take such further action as the holders of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rules may be amended from time to time, or any similar
Rule or regulation hereafter adopted by the Commission.
6. MISCELLANEOUS.
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6.1. OTHER REGISTRATION RIGHTS. Except with respect to those securities
issued or issuable upon exercise of that certain Unit Purchase Option to be
issued to Deutsche Bank or its designees in connection with the Company's
initial public offering on [-] 2006, the Company represents and warrants that no
Person, other than a holder of the Registrable Securities, has any right to
require the Company to register any shares of the Company's capital stock for
sale or to include shares of the Company's capital stock in any registration
filed by the Company for the sale of shares of capital stock for its own account
or for the account of any other Person.
6.2. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and the
rights, duties and obligations of the Company hereunder may not be assigned or
delegated by the Company in whole or in part. This Agreement and the rights,
duties and obligations of the holders of Registrable Securities hereunder may be
freely assigned or delegated by such holder of Registrable Securities in
conjunction with and to the extent of any transfer of at least twenty (20%)
percent of the Registrable Securities held by any such holder. This Agreement
and the provisions hereof shall be binding upon and shall inure to the benefit
of each of the parties, to Deutsche Bank and its successors and the permitted
assigns of the Investor or holder of Registrable Securities or of any assignee
of the Investor or holder of Registrable Securities. This Agreement is not
intended to confer any rights or benefits on any Persons that are not party
hereto other than as expressly set forth in Article 4 and this Section 6.2.
6.3. NOTICES. All notices, demands, requests, consents, approvals or other
communications (collectively, "NOTICES") required or permitted to be given
hereunder or which are given with respect to this Agreement shall be in writing
and shall be personally served, delivered by reputable overnight courier service
with charges prepaid, or transmitted by hand delivery or facsimile, addressed as
set forth below, or to such other address as such party shall have specified
most recently by written notice. Notice shall be deemed given on the date of
service or transmission if personally served or transmitted by facsimile;
provided, that if such service or transmission is not on a business day or is
after normal business hours, then such notice shall be deemed given on the next
business day. Notice otherwise sent as provided herein shall be deemed given on
the next business day following timely delivery of such notice to a reputable
overnight courier service with an order for next-day delivery.
To the Company:
Tailwind Financial Inc.
BCE Place, 000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attn: Xxxxxx X. XxXxx
with a copy to:
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-00000
Attn: Xxxxx Xxxxx, Esq.
To an Investor, to the address for such Investor specified on the signature
pages hereto.
15
6.4. SEVERABILITY. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. Furthermore, in lieu of any such invalid or unenforceable term
or provision, the parties hereto intend that there shall be added as a part of
this Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible that is valid and enforceable.
6.5. COUNTERPARTS. This Agreement may be executed by facsimile and in
multiple counterparts, and all of which taken together shall constitute one
and the same instrument.
6.6. ENTIRE AGREEMENT. This Agreement (including all agreements entered
into pursuant hereto and all certificates and instruments delivered pursuant
hereto and thereto) constitutes the entire agreement of the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, representations, understandings, negotiations and discussions
between the parties, whether oral or written.
6.7. MODIFICATIONS AND AMENDMENTS. No amendment, modification or
termination of this Agreement shall be binding upon any party unless executed in
writing by such party. Notwithstanding the foregoing, any and all parties must
obtain the written consent of Deutsche Bank to amend or modify this Agreement.
6.8. TITLES AND HEADINGS. Titles and headings of sections of this
Agreement are for convenience only and shall not affect the construction of
any provision of this Agreement.
6.9. WAIVERS AND EXTENSIONS. Any party to this Agreement may waive any
right, breach or default which such party has the right to waive, provided that
such waiver will not be effective against the waiving party unless it is in
writing, is signed by such party, and specifically refers to this Agreement.
Waivers may be made in advance or after the right waived has arisen or the
breach or default waived has occurred. Any waiver may be conditional. No waiver
of any breach of any agreement or provision herein contained shall be deemed a
waiver of any preceding or succeeding breach thereof nor of any other agreement
or provision herein contained. No waiver or extension of time for performance of
any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.10. REMEDIES CUMULATIVE. In the event that the Company fails to observe
or perform any covenant or agreement to be observed or performed under this
Agreement, the Investor or any other holder of Registrable Securities may
proceed to protect and enforce its rights by suit in equity or action at law,
whether for specific performance of any term contained in this Agreement or for
an injunction against the breach of any such term or in aid of the exercise of
any power granted in this Agreement or to enforce any other legal or equitable
right, or to take any one or more of such actions, without being required to
post a bond. None of the rights, powers or remedies conferred under this
Agreement shall be mutually exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred by this Agreement or now or hereafter available at law, in equity, by
statute or otherwise.
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6.11. GOVERNING LAW. This Agreement shall for all purposes be deemed to be
made under and shall be construed in accordance with the laws of the State of
New York, without giving effect to conflicts of law principles that would result
in the application of the substantive laws of another jurisdiction. The parties
hereto agree that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive. The parties hereby waive any objection to
such exclusive jurisdiction and that such courts represent an inconvenient
forum.
6.12. WAIVER OF TRIAL BY JURY. Each party hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of the Investor in the negotiation,
administration, performance or enforcement hereof.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first written above.
TAILWIND FINANCIAL INC.
By:
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Name: Xxxxxx X. XxXxx
Title: President and Chief Executive Officer
INVESTORS
By:
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Address:
By:
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Address:
By:
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Address:
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By:
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