REGISTRATION RIGHTS AGREEMENT dated as of June 5, 2009 between BROADPOINT SECURITIES GROUP, INC. and ERIC J. GLEACHER
Exhibit 10.2
EXECUTION VERSION
dated as of June 5, 2009
between
BROADPOINT SECURITIES GROUP, INC.
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
This Registration Rights Agreement (this “Agreement”) is dated as of June 5, 2009, by
BROADPOINT SECURITIES GROUP, INC., a New York corporation (the “Company”), and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (the “Investor”).
RECITALS
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of March 2, 2009 (the
“Merger Agreement”), as amended, by and among the Company, Magnolia Advisory LLC, Gleacher
Partners Inc., the Investor and the other parties signatory thereto, the Company has issued to the
Investor shares (the “Shares”) of Common Stock (as defined below) and has agreed to enter
into this Agreement to provide the Investor with certain registration rights in respect of such
Shares; and
WHEREAS, the parties hereto hereby desire to set forth the Company’s obligations to cause the
registration of the Registrable Securities (as defined below) pursuant to the Securities Act (as
defined below) and applicable state securities laws.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions and Usage.
As used in this Agreement:
1.1. Definitions.
“Agent” means the principal placement agent on an agented placement of Registrable
Securities.
“Commission” shall mean the Securities and Exchange Commission.
“Common Stock” shall mean (i) the common stock, par value $.01 per share, of the
Company, and (ii) shares of capital stock of the Company issued by the Company in respect of or in
exchange for shares of such common stock in connection with any stock dividend or distribution,
stock split-up, recapitalization, recombination or exchange generally of shares of such common
stock.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Holder” shall mean the Investor and any Transferee of any Registrable Securities from
a Holder, to the extent that such Transferee shall have been assigned rights under this Agreement
in accordance with Section 7, in each case at such times as such Person shall own any
Registrable Securities.
“Majority Selling Holders” means those Selling Holders whose Registrable Securities
included in such registration represent a majority of the Registrable Securities of all Selling
Holders included therein.
“Person” shall mean any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
“Piggyback Registration” shall have the meaning set forth in Section 2.1.
“Register”, “registered”, and “registration” shall refer to a
registration effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering by the Commission of
effectiveness of such registration statement or document.
“Registrable Securities” shall mean, subject to Section 7: (i) the Shares
owned by the Investor on the date hereof, (ii) any shares of Common Stock or other securities of
the Company issued as (or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to, or in exchange
generally for, or in replacement by the Company generally of, such Shares (or other Registrable
Securities); and (iii) any securities issued in exchange for Shares (or other Registrable
Securities) in any merger, reorganization, consolidation, share exchange, recapitalization,
restructuring or other comparable transaction of the Company, in each case that are not subject to
Transfer Restrictions (as defined in the Merger Agreement); provided, however, that
Registrable Securities shall not include any securities which have theretofore been registered and
sold pursuant to the Securities Act or which may be sold to the public pursuant to Rule 144 or any
similar rule promulgated by the Commission pursuant to the Securities Act without restriction
(including because the Investor is not an “affiliate” (within the meaning of Rule 144 or any
similar rule promulgated by the Commission pursuant to the Securities Act) of the Company and has
not been such during the three-month period referenced in Rule 144(b) (as such time period or Rule
may be modified in the future)), and, provided, further, that the Company shall
have no obligation under Section 2 to register any Registrable Securities of a Holder if
the public sale or disposition in a single three-month period of all of the Registrable Securities
for which registration was requested does not require registration under the Securities Act. For
purposes of this Agreement, a Person will be deemed to be a holder of Registrable Securities
whenever such Person has the then-existing right to acquire such Registrable Securities (by
conversion, purchase or otherwise), whether or not such acquisition has actually been effected.
“Registrable Securities then outstanding” shall mean, with respect to a specified
determination date, the Registrable Securities owned by all Holders on such date.
“Registration Expenses” shall have the meaning set forth in Section 5.1.
“Shelf Registration Termination Date” shall have the meaning set forth in Section
3.2.
“Securities Act” shall mean the Securities Act of 1933, as amended.
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“Selling Holders” shall mean, with respect to a specified registration pursuant to
this Agreement, Holders whose Registrable Securities are included in such registration.
“Shares” shall have the meaning set forth in the Recitals.
“Specified Registration Rights Agreements” shall mean (i) that certain Registration
Rights Agreement, dated June 13, 2003, between the Company and Farm Bureau Life Insurance Company,
and (ii) that certain Registration Rights Agreement, dated June 13, 2003, between the Company and
Kansas City Life Insurance Company.
“Transfer” shall have the meaning set forth in the Merger Agreement.
“Underwriters’ Representative” shall mean the managing underwriter, or, in the case of
a co-managed underwriting, the managing underwriter designated as the underwriters’ representative
by the co-managers.
“Violation” shall have the meaning set forth in Section 6.1.
1.2. Usage.
(i) References to a Person (other than a natural person) are also references to its assigns
and successors in interest (by means of merger, consolidation or sale of all or substantially all
the assets of such Person or otherwise, as the case may be).
(ii) References to Registrable Securities “owned” or “held” by a Holder shall include
Registrable Securities beneficially owned by such Person but which are held of record in the name
of a nominee, trustee, custodian, or other agent, but shall exclude shares of Common Stock held by
a Holder in a fiduciary capacity for customers of such Person.
(iii) References to a document are to it as amended, waived and otherwise modified from time
to time and references to a statute or other governmental rule are to it as amended and otherwise
modified from time to time (and references to any provision thereof shall include references to any
successor provision).
(iv) References to Sections or to Schedules or Exhibits are to sections hereof or schedules or
exhibits hereto, unless the context otherwise requires.
(v) The definitions set forth herein are equally applicable both to the singular and plural
forms and the feminine, masculine and neuter forms of the terms defined.
(vi) The term “including” and correlative terms shall be deemed to be followed by “without
limitation” whether or not followed by such words or words of like import.
(vii) The term “hereof” and similar terms refer to this Agreement as a whole.
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(viii) The “date of” any notice or request given pursuant to this Agreement shall be
determined in accordance with Section 12.2.
Section 2. Piggyback and Shelf Registration.
2.1. Piggyback Registration
(i) If at any time when Holders own Registrable Securities, the Company proposes to register
(including for this purpose a registration effected by the Company for shareholders of the Company
other than the Holders) securities under the Securities Act in connection with the public offering
solely for cash on Form ▇-▇, ▇-▇ or S-3 (or any replacement or successor forms), the Company shall
promptly give each Holder of Registrable Securities written notice of such registration (a
“Piggyback Registration”); provided, however, that the Company shall have no obligations
and Holders shall have no rights, hereunder with respect to any “Demand Registration” or “Shelf
Registration” as defined in the Registration Rights Agreement, dated September 21, 2007, by and
among the Company, MatlinPatterson FA Acquisition LLC and the other parties thereto. Upon the
written request of each Holder given within twenty (20) days following the date of such notice, the
Company shall cause to be included in such registration statement and use its best efforts to be
registered under the Securities Act all the Registrable Securities that each such Holder shall have
requested to be registered. The Company shall have the absolute right to withdraw or cease to
prepare or file any registration statement for any offering referred to in this Section 2.1
without any obligation or liability to any Holder.
(ii) If the Underwriters’ Representative or Agent shall advise the Company in writing (with a
copy to each Selling Holder) that, in its opinion, the amount of Registrable Securities requested
to be included in such registration would materially adversely affect such offering, or the timing
thereof, then the Company will include in such registration, to the extent of the amount and class
which the Company is so advised can be sold without such material adverse effect in such offering:
(A) first, all securities proposed to be sold by the Company for its own account and, if such
registration is effected as a result of the exercise of demand registration rights granted by the
Company, all securities required to be registered pursuant to the exercise of such demand
registration rights allocated (as between the Company and the holders exercising such demand
registration rights) in accordance with the priorities then existing among the Company and such
holders; (B) second, securities required to be included in such registration statement pursuant to
the exercise of piggyback registration rights set forth in the Specified Registration Rights
Agreements, to the extent that the Specified Registration Rights Agreements require the Company to
include such securities in such registration in priority to the securities described in the
following clause (C); and (C) third, the Registrable Securities requested to be included in such
registration by Holders pursuant to this Section 2.1, and all other securities being
registered pursuant to the exercise of other contractual registration rights granted by the
Company, pro rata based on the estimated gross proceeds from the sale thereof; and third all other
securities requested to be included in such registration.
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(iii) Except as set forth in Section 2.1(ii), each Holder shall be entitled to have
Registrable Securities included in an unlimited number of Piggyback Registrations pursuant to this
Section 2.1.
2.2. Shelf Registration
(i) The Investor may request that the Company prepare and file with the Commission, and the
Company shall prepare and file with the Commission (provided that the Company need not effect such
filing prior to the third anniversary of the Closing Date (as such term is defined in the Merger
Agreement)), a shelf registration statement on Form S-3 or any similar short-form or other
appropriate registration statement that may be available at such time, which, if the Company is a
“well-known seasoned issuer” (as such term is defined in Rule 405 of the Securities Act), shall be
an “Automatic Shelf Registration Statement,” as such term is defined in Rule 405 of the Securities
Act for the purpose of registering under the Securities Act (the “Shelf Registration
Statement”) the offer and sale of all the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by such Holders and set forth in the
Shelf Registration Statement (the “Shelf Registration”); provided however,
that such method or methods of distribution shall not, without the prior written consent of the
Company, include any firm commitment or best efforts underwritten public offering. The Shelf
Registration Statement shall indicate that the Registrable Securities are to be offered and sold on
a continuous basis pursuant to Rule 415 under the Securities Act.
(ii) If a Shelf Registration Statement is not automatically effective upon filing, the Company
shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared
effective under the Securities Act as promptly as practicable after the filing thereof, but in any
event not later than sixty days following the later of the third anniversary of the Closing Date
and the date of the Investor’s request.
(iii) If prior to the Shelf Registration Termination Date, the number of Registrable
Securities at any time exceeds the number of securities then registered for sale in the Shelf
Registration Statement, the Company shall file as soon as practicable an additional Shelf
Registration Statement covering the offer and sale by the Holders of not less than the number of
such Registrable Securities.
Section 3. Registration Procedures. Whenever required under Section 2 to
effect the registration of any Registrable Securities, the Company shall take each of the actions
set forth in this Section 3, as expeditiously as practicable.
3.1. In the case of any Piggyback Registration, the Company shall prepare and file with the
Commission a registration statement with respect to such Registrable Securities and use the
Company’s reasonable best efforts to cause such registration statement to become effective. With
respect to either a Piggyback Registration or Shelf Registration, before filing a registration
statement or prospectus or any amendments or supplements thereto, including documents incorporated
by reference after the initial filing of the registration statement and prior to effectiveness
thereof, the Company shall furnish to one firm of counsel for the
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Selling Holders (selected by Majority Selling Holders, as the case may be) copies of all such
documents in the form substantially as proposed to be filed with the Commission at least four (4)
business days prior to filing for review and comment by such counsel;
3.2. With respect to either a Piggyback Registration or Shelf Registration, the Company shall
prepare and file with the Commission such amendments and supplements to such registration statement
and the prospectus used in connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act and rules thereunder with respect to the
disposition of all securities covered by such registration statement. If the registration is for
an underwritten offering, the Company shall amend the applicable registration statement or
supplement the prospectus whenever required by the terms of the underwriting agreement entered into
pursuant to Section 4.2. Subject to Rule 415 under the Securities Act, if the registration
statement is a shelf registration, the Company shall amend the registration statement or supplement
the prospectus so that it will remain current and in compliance with the requirements of the
Securities Act for three years after its effective date, provided that in the case of the Shelf
Registration, the Company shall be required to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act until such time as there are
no Registrable Securities remaining (the “Shelf Registration Termination Date”), and if
during such period any event or development occurs as a result of which the registration statement
or prospectus contains a misstatement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading, the Company shall
promptly notify each Selling Holder, amend the registration statement or supplement the prospectus
so that each will thereafter comply with the Securities Act and furnish to each Selling Holder of
Registrable Shares such amended or supplemented prospectus, which each such Holder shall thereafter
use in the Transfer of Registrable Shares covered by such registration statement. Pending such
amendment or supplement (and written notice of the need therefor) each such Holder shall cease
making offers or Transfers of Registrable Shares pursuant to the prior prospectus. In the event
that any Registrable Securities included in a registration statement subject to, or required by,
this Agreement remain unsold at the end of the period during which the Company is obligated to use
its reasonable best efforts to maintain the effectiveness of such registration statement, the
Company may file a post-effective amendment to the registration statement for the purpose of
removing such Securities from registered status.
3.3. The Company shall furnish to each Selling Holder of Registrable Securities, without
charge, such numbers of copies of the registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and any amendments or
supplements thereto, in each case in conformity with the requirements of the Securities Act and the
rules thereunder, and such other related documents as any such Selling Holder may reasonably
request in order to facilitate the disposition of Registrable Securities owned by such Selling
Holder.
3.4. The Company shall use the Company’s reasonable best efforts (i) to register and qualify
the securities covered by such registration statement under such other securities or Blue Sky laws
of such states or jurisdictions as shall be reasonably requested by the Underwriters’
Representative or Agent (as applicable, or if inapplicable, the Majority Selling
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Holders), and (ii) to obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification (or exemption from
qualification) of the offer and transfer of any of the Registrable Securities in any jurisdiction,
as soon as practicable; provided, however, that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions in which it is not already so
qualified or subject to service.
3.5. In the event of any underwritten or agented offering, the Company shall enter into and
perform the Company’s obligations under an underwriting or agency agreement (including
indemnification and contribution obligations of underwriters or agents), in usual and customary
form, with the managing underwriter or underwriters of or agents for such offering.
3.6. The Company shall promptly notify each Selling Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith (and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
3.7. The Company shall make generally available to the Company’s security holders copies of
all periodic reports, proxy statements, and other information referred to in Section 9.1
and an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later
than ninety (90) days following the end of the 12-month period beginning with the first month of
the Company’s first fiscal quarter commencing after the effective date of each registration
statement filed pursuant to this Agreement.
3.8. The Company shall make available for inspection by any Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder and Underwriter (but
not more than one firm of counsel to such Selling Holders), all financial and other information as
shall be reasonably requested by them, and provide the Selling Holder, any underwriter
participating in such offering and the representatives of such Selling Holder and Underwriter the
opportunity to discuss the business affairs of the Company with its principal executives and
independent public accountants who have certified the audited financial statements included in such
registration statement, in each case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; provided, however, that
information that the Company determines, in good faith, to be confidential and which the Company
advises such Person in writing, is confidential shall not be disclosed unless such Person signs a
confidentiality agreement reasonably satisfactory to the Company or the related Selling Holder of
Registrable Securities agrees to be responsible for such Person’s breach of confidentiality on
terms reasonably satisfactory to the Company.
3.9. The Company shall provide and cause to be maintained a transfer agent and registrar for
all Registrable Securities covered by such registration statement from and after a date not later
than the effective date of such registration statement.
3.10. The Company shall use all reasonable efforts to cause the Registrable Securities covered
by such registration statement (i) if the Common Stock is then
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listed on a securities exchange or included for quotation in a recognized trading market, to
continue to be so listed or included for a reasonable period of time after the offering, and (ii)
to be registered with or approved by such other United States or state governmental agencies or
authorities as may be necessary by virtue of the business and operations of the Company to enable
the Selling Holders of Registrable Securities to consummate the disposition of such Registrable
Securities.
3.11. The Company shall use the Company’s reasonable efforts to provide a CUSIP number for the
Registrable Securities prior to the effective date of the first registration statement including
Registrable Securities.
3.12. The Company shall take such other actions as are reasonably requested in order to
expedite or facilitate the disposition of Registrable Securities included in each such
registration.
Section 4. Holders’ Obligations. It shall be a condition precedent to the obligations
of the Company to take any action pursuant to this Agreement with respect to the Registrable
Securities of any Selling Holder of Registrable Securities that such Selling Holder shall:
4.1. furnish to the Company such information regarding such Selling Holder, the number of the
Registrable Securities owned by it and the intended method of disposition of such securities as
shall be required to effect the registration of such Selling Holder’s Registrable Securities, and
to cooperate with the Company in preparing such registration; and
4.2. if applicable, agree to sell its Registrable Securities to the underwriters at the same
price and on substantially the same terms and conditions as the Company or the other Persons on
whose behalf the registration statement was being filed have agreed to sell their securities, and
to execute the underwriting agreement agreed to by the Majority Selling Holders.
Section 5. Expenses of Registration. Expenses in connection with registrations
pursuant to this Agreement shall be allocated and paid as follows:
5.1. The Company shall bear and pay all expenses incurred in connection with any registration,
filing, or qualification of Registrable Securities for each Selling Holder (which right may be
Transferred to any Person to whom Registrable Securities are Transferred as permitted by
Section 7), including all registration, filing and Financial Industry Regulatory Authority,
Inc. fees, all fees and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery expenses, the reasonable fees
and disbursements of counsel for the Company, and of the Company’s independent public accountants,
including the expenses of “cold comfort” letters required by or incident to such performance and
compliance, and the reasonable fees and disbursements of one firm of counsel for the Selling
Holders of Registrable Securities (selected by the Majority Selling Holders) (the “Registration
Expenses”), but excluding underwriting discounts and commissions relating to Registrable
Securities (which shall be paid on a pro rata basis by the Selling Holders).
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5.2. Any failure of the Company to pay any Registration Expenses as required by this
Section 5 shall not relieve the Company of its obligations under this Agreement.
Section 6. Indemnification; Contribution. If any Registrable Securities are included
in a registration statement under this Agreement:
6.1. To the extent permitted by applicable law, the Company shall indemnify and hold harmless
each Selling Holder, each Person, if any, who controls such Selling Holder within the meaning of
the Securities Act, and each officer, director, partner, and employee of such Selling Holder and
such controlling Person, against any and all losses, claims, damages, liabilities and expenses
(joint or several), including attorneys’ fees and disbursements and expenses of investigation,
incurred by such party pursuant to any actual or threatened action, suit, proceeding or
investigation, or to which any of the foregoing Persons may become subject under the Securities
Act, the Exchange Act or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any of the following statements, omissions
or violations (collectively a “Violation”):
(i) any untrue statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or final prospectus contained therein,
or any amendments or supplements thereto; or
(ii) the omission or alleged omission to state therein a material fact required to be stated
therein, or necessary to make the statements therein not misleading;
provided, however, that the indemnification required by this Section 6.1
shall not apply to amounts paid in settlement of any such loss, claim, damage, liability or expense
if such settlement is effected without the consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or expense to the extent that it arises out of or is based upon (x) a Violation
which occurs in reliance upon and in conformity with written information furnished to the Company
by the indemnified party expressly for use in connection with such registration or (y) the failure
of any person entitled to indemnification hereunder to deliver or make available to a purchaser of
Registrable Securities (to the extent required by law), a copy of any registration statement,
including any preliminary prospectus or final prospectus contained therein or any amendments or
supplements thereto (if the same was required by applicable law to be delivered or made available),
provided that the Company shall have delivered to the applicable Selling Holder such registration
statement, including such preliminary prospectus or final prospectus contained therein and any
amendments or supplements thereto. The Company shall also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in the distribution,
their officers, directors, agents and employees and each person who controls such persons (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Selling Holders.
6.2. To the extent permitted by applicable law, each Selling Holder shall indemnify and hold
harmless the Company, each of its directors, each of its officers who
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shall have signed the registration statement, each Person, if any, who controls the Company
within the meaning of the Securities Act, any other Selling Holder, any controlling Person of any
such other Selling Holder and each officer, director, partner, and employee of such other Selling
Holder and such controlling Person, against any and all losses, claims, damages, liabilities and
expenses (joint and several), including attorneys’ fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened action, suit, proceeding
or investigation, or to which any of the foregoing Persons may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws, insofar as such losses, claims,
damages, liabilities and expenses arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Selling Holder expressly for use in connection with such
registration; provided, however, that (x) the indemnification required by this
Section 6.2 shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if settlement is effected without the consent of the relevant Selling Holder
of Registrable Securities, which consent shall not be unreasonably withheld, and (y) in no event
shall the amount of any indemnity under this Section 6.2 exceed the gross proceeds from the
applicable offering received by such Selling Holder.
6.3. Promptly after receipt by an indemnified party under this Section 6 of notice of
the commencement of any action, suit, proceeding, investigation or threat thereof made in writing
for which such indemnified party may make a claim under this Section 6, such indemnified
party shall deliver to the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own counsel, with the
fees and disbursements and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time following the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 6 to the extent of such prejudice but
shall not relieve the indemnifying party of any liability that it may have to any indemnified party
otherwise than pursuant to this Section 6. Any fees and expenses incurred by the
indemnified party (including any fees and expenses incurred in connection with investigating or
preparing to defend such action or proceeding) shall be paid to the indemnified party, as incurred,
within thirty (30) days of written notice thereof to the indemnifying party (regardless of whether
it is ultimately determined that an indemnified party is not entitled to indemnification
hereunder). Any such indemnified party shall have the right to employ separate counsel in any such
action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of
such counsel shall be the expenses of such indemnified party unless (i) the indemnifying party has
agreed to pay such fees and expenses or (ii) the indemnifying party shall have failed to promptly
assume the defense of such action, claim or proceeding or (iii) the named parties to any such
action, claim or proceeding (including any impleaded parties) include both such indemnified party
and the indemnifying party, and such indemnified party shall have been advised by counsel
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that there may be one or more legal defenses available to it which are different from or in
addition to those available to the indemnifying party and that the assertion of such defenses would
create a conflict of interest such that counsel employed by the indemnifying party could not
faithfully represent the indemnified party (in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being understood, however, that
the indemnifying party shall not, in connection with any one such action, claim or proceeding or
separate but substantially similar or related actions, claims or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for all such indemnified parties, unless in the reasonable judgment of
such indemnified party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such action, claim or proceeding, in which event
the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel
or counsels). No indemnifying party shall be liable to an indemnified party for any settlement of
any action, proceeding or claim without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld.
6.4. If the indemnification required by this Section 6 from the indemnifying party is
unavailable to an indemnified party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to in this Section 6:
(i) The indemnifying party, in lieu of indemnifying such indemnified party, shall contribute
to the amount paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether any Violation has been committed by, or
relates to information supplied by, such indemnifying party or indemnified parties, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such Violation. The amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject to the limitations
set forth in Section 6.1 and Section 6.2, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if contribution pursuant
to this Section 6.4 were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations referred to in Section
6.4(i). 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.
6.5. If indemnification is available under this Section 6, the indemnifying parties
shall indemnify each indemnified party to the full extent provided in this
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Section 6 without regard to the relative fault of such indemnifying party or
indemnified party or any other equitable consideration referred to in Section 6.4.
6.6. The obligations of the Company and the Selling Holders of Registrable Securities under
this Section 6 shall survive the completion of any offering of Registrable Securities
pursuant to a registration statement under this Agreement, and otherwise.
Section 7. Transfer of Registration Rights. All rights of a Holder with respect to
Registrable Securities pursuant to this Agreement may be Transferred by such Holder to any other
Person in connection with the Transfer of Registrable Securities to such Person, in all cases, if
and only if (x) any such Transferee that is not a party to this Agreement shall have executed and
delivered to the Secretary of the Company a properly completed agreement substantially in the form
of Exhibit A, (y) the Transferor shall have delivered to the Secretary of the Company, no
later than fifteen (15) days following the date of the Transfer, written notification of such
Transfer setting forth the name of the Transferor, name and address of the Transferee, and the
number of Registrable Securities which shall have been so Transferred and (z) the Transfer of
Registrable Securities and complies with all restrictions applicable thereto; including any
applicable “Transfer Restrictions” (as defined in the Merger Agreement).
Section 8. Holdback. Each Holder entitled pursuant to this Agreement to have
Registrable Securities included in a piggyback registration statement prepared pursuant to
Section 2.1 of this Agreement, if so requested by the Underwriters’ Representative or Agent
in connection with an offering of any Registrable Securities, shall not effect any public sale or
distribution of shares of Common Stock or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, including a sale pursuant to Rule 144 under the Securities
Act (except as part of such underwritten or agented registration), during the fifteen (15) day
period prior to, and up to ninety (90) day period beginning on (but in any event not longer that
the period applicable to the Company’s directors who are required by the Underwriters’
Representative or Agent to be subject to similar restrictions), the date such registration
statement is declared effective under the Securities Act by the Commission, provided that
such Holder is timely notified of such effective date in writing by the Company or such
Underwriters’ Representative or Agent. In order to enforce the foregoing covenant, the Company
shall be entitled to impose stop-transfer instructions with respect to the Registrable Securities
of each Holder until the end of such period.
Section 9. Covenants.
9.1. The Company shall file as and when applicable, on a timely basis, all reports required to
be filed by it under the Exchange Act. If the Company is not required to file reports pursuant to
the Exchange Act, upon the request of any Holder of Registrable Securities, the Company shall make
publicly available the information specified in subparagraph (c)(2) of Rule 144 of the Securities
Act, and take such further action as may be reasonably required from time to time and as may be
within the reasonable control of the Company, to enable the Holders to Transfer Registrable
Securities without registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act or any similar rule or regulation hereafter adopted
by the Commission.
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9.2. Upon written notice from the Company, the Holders shall not offer or sell any Registrable
Securities pursuant to or in reliance upon a piggyback registration statement filed pursuant to
Section 2.1 hereof (or the prospectus related thereto) during any suspension or similar
period applicable to other securities registered pursuant to such registration statement. The
Company shall be entitled to postpone (but not more than once in any fiscal quarter) for a
reasonable period not in excess of thirty (30) calendar days, the filing or initial effectiveness
of, or suspend the use of a Shelf Registration Statement if the Company delivers to the Majority
Selling Holders a certificate signed by the Chief Executive Officer and Chief Financial Officer of
the Company certifying that in the good faith judgment of such officers, following consultation
with counsel, such registration, offering or use would reasonably be expected to materially and
adversely affect or to materially interfere with any bona fide material financing of the Company or
any material transaction under consideration by the Company or would require the disclosure of
information that has not been, and is not otherwise required to be, disclosed to the public, the
premature disclosure of which would materially and adversely affect the Company (no postponement or
suspension shall apply during any period in which the directors and executive officers of the
Company are not also generally prohibited from selling shares of Common Stock). The Holders shall
maintain in confidence the existence and content of such notice or certificate.
Section 10. Amendment, Modification and Waivers; Further Assurances.
(i) This Agreement may be amended with the consent of the Company and the Company may take any
action herein prohibited, or omit to perform any act herein required to be performed by it, only if
the Company shall have obtained the written consent of the Majority Selling Holders to such
amendment, action or omission to act.
(ii) No waiver of any terms or conditions of this Agreement shall operate as a waiver of any
other breach of such terms and conditions or any other term or condition, nor shall any failure to
enforce any provision hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly provides to the
contrary, shall be construed to effect a continuing waiver of the provisions being waived and no
such waiver in any instance shall constitute a waiver in any other instance or for any other
purpose or impair the right of the party against whom such waiver is claimed in all other instances
or for all other purposes to require full compliance with such provision.
(iii) Each of the parties hereto shall execute all such further instruments and documents and
take all such further action as any other party hereto may reasonably require in order to
effectuate the terms and purposes of this Agreement.
Section 11. Assignment; Benefit. This Agreement and all of the provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and their respective
heirs, assigns, executors, administrators or successors; provided, however, that
except as specifically provided herein with respect to certain matters, neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned or delegated by the Company
without the prior written consent of the Majority Selling Holders on the date as of which such
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delegation or assignment is to become effective. A Holder may Transfer its rights hereunder
to a successor in interest to the Registrable Securities owned by such assignor only as permitted
by Section 7.
Section 12. Miscellaneous.
12.1. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING REGARD TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF.
12.2. Notices. All notices and requests given pursuant to this Agreement shall be in
writing and shall be made by hand-delivery, first-class mail (registered or certified, return
receipt requested), confirmed facsimile or overnight air courier guaranteeing next business day
delivery to the relevant address specified on Schedule 1 to this Agreement or in the
relevant agreement in the form of Exhibit A whereby such party became bound by the
provisions of this Agreement. Except as otherwise provided in this Agreement, the date of each
such notice and request shall be deemed to be, and the date on which each such notice and request
shall be deemed given shall be: at the time delivered, if personally delivered or mailed; when
receipt is acknowledged, if sent by facsimile; and the next business day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next business day delivery.
12.3. Entire Agreement; Integration. This Agreement supersedes all prior agreements
between or among any of the parties hereto with respect to the subject matter contained herein and
therein, and such agreements embody the entire understanding among the parties relating to such
subject matter.
12.4. Injunctive Relief. Each of the parties hereto acknowledges that in the event of
a breach by any of them of any material provision of this Agreement, the aggrieved party may be
without an adequate remedy at law. Each of the parties therefore agrees that in the event of such
a breach hereof the aggrieved party may elect to institute and prosecute proceedings in any court
of competent jurisdiction to enforce specific performance or to enjoin the continuing breach
hereof. By seeking or obtaining any such relief, the aggrieved party shall not be precluded from
seeking or obtaining any other relief to which it may be entitled.
12.5. Section Headings. Section headings are for convenience of reference only and
shall not affect the meaning of any provision of this Agreement.
12.6. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be an original, and all of which shall together constitute one and the same
instrument. All signatures need not be on the same counterpart.
12.7. Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity and enforceability
of the remaining provisions of this Agreement, unless the result thereof would be unreasonable, in
which case the parties hereto shall negotiate in good faith as to appropriate amendments hereto.
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12.8. Filing. A copy of this Agreement and of all amendments thereto shall be filed
at the principal executive office of the Company with the corporate recorder of the Company.
12.9. Termination. This Agreement may be terminated at any time by a written
instrument signed by the parties hereto. Unless sooner terminated in accordance with the preceding
sentence, this Agreement (other than Section 6 hereof) shall terminate in its entirety on
such date as there shall be no Registrable Securities outstanding, provided that any shares
of Common Stock previously subject to this Agreement shall not be Registrable Securities following
the sale of any such shares in an offering registered pursuant to this Agreement.
12.10. Attorneys’ Fees. In any action or proceeding brought to enforce any provision
of this Agreement, or where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys’ fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
12.11. No Third Party Beneficiaries. Nothing herein expressed or implied is intended
to confer upon any person, other than the parties hereto or their respective permitted assigns,
successors, heirs and legal representatives, any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date
first written above.
| BROADPOINT SECURITIES GROUP, INC. | ||||||
| By: | /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | |||||
| By: | ||||||
| Title: | Chairman and Chief Executive Officer | |||||
Signature Page to Registration Rights Agreement
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the date
first written above.
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
Signature Page to Registration Rights Agreement
Schedule 1
Address for Notices
Notice to the Company
Broadpoint Securities Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Notice to the Investor
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
c/o Gleacher Partners Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
c/o Gleacher Partners Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
EXHIBIT A
to
Registration
Rights Agreement
to
Registration
Rights Agreement
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
BY THE REGISTRATION RIGHTS AGREEMENT
The
undersigned, being the transferee of shares of the common stock, $.01 par value
per share [or describe other capital stock received in exchange for such common stock] (the
“Registrable Securities”), of Broadpoint Securities Group, Inc., a New York corporation
(the “Company”), as a condition to the receipt of such Registrable Securities, acknowledges
that matters pertaining to the registration of such Registrable Securities is governed by the
Registration Rights Agreement dated as of [ ], 2009 initially among the Company and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ referred to therein (the “Agreement”), and the undersigned hereby (1) acknowledges
receipt of a copy of the Agreement, and (2) agrees to be bound as a Holder by the terms of the
Agreement, as the same has been or may be amended from time to time.
Agreed to this ___day of _________, _________.
| * | ||||||
| * |
| * | Include address for notices. |
A-1