REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
entered into as of the [__]
day of
[____],
2008,
by and among Consumer Partners Acquisition Corp., a Delaware corporation
(the
“Company”)
and
the undersigned parties listed under Investor on the signature page hereto
(each, an “Investor”
and
collectively, the “Investors”).
WHEREAS,
the Investors currently hold all of the issued and outstanding securities
of the
Company; 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 (a) shares
of
Common Stock; (b) Founder Warrants; and (c) shares of Common Stock issuable
upon
exercise of the Founder Warrants.
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.
“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 $0.0001 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.
“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.
“Founder
Warrants”
means
the warrants being purchased by PJC Consumer Partners Acquisition I, LLC,
Aria
Select Consumer Fund LP, Aria Partners LP, Aria Partners II LP, Aria Partners
(Cayman) Ltd. and Kata Ltd. in a private placement that will take place
immediately prior to the consummation of the Company’s initial public
offering.
“Founder
Warrants Release Date”
means
the date on which the Founder Warrants are disbursed from escrow pursuant
to
Section 3 of that certain Founder Warrant Escrow Agreement dated as of the
date
hereof by and among the Company, PJC Consumer Partners Acquisition I, LLC,
Aria
Select Consumer Fund LP, Aria Partners LP, Aria Partners II LP, Aria Partners;
(Cayman) Ltd. and Kata Ltd. and Continental Stock Transfer & Trust Company.
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“Indemnified
Party”
is
defined in Section 4.3.
“Indemnifying
Party”
is
defined in Section 4.3.
“Initial
Shares Release
Date”
means
the date on which shares of Common Stock are disbursed from escrow pursuant
to
Section 3 of that certain Stock Escrow Agreement dated as of the date hereof
by
and among the parties hereto and Continental Stock Transfer & Trust
Company.
“Investor”
is
defined in the preamble to this Agreement.
“Investor
Indemnified Party”
is
defined in Section 4.1.
“Maximum
Number of Shares”
is
defined in Section 2.1.4.
“Notices”
is
defined in Section 6.3.
“Piggy-Back
Registration”
is
defined in Section 2.2.1.
“Registration”
means
a
registration effected by preparing and filing a Registration Statement or
similar document in compliance with the requirements of the Securities Act,
and
the applicable rules and regulations promulgated thereunder, and such
registration statement becoming effective.
“Registrable
Securities”
mean
(i) all of the shares of Common Stock owned or held by Investors prior to
the
consummation of the Company’s initial public offering, (ii) all of the Founder
Warrants owned or held by Investors immediately prior to the consummation
of the
Company’s initial public offering, and (iii) all of the shares of Common Stock
issuable upon exercise of the Founder Warrants. 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 such shares of Common Stock or Founder Warrants. 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 Securities and Exchange Commission makes a definitive determination to
the
Company that the Registrable Securities are saleable without volume limitations
under Rule 144.
“Registration
Statement”
means
a
registration statement filed by the Company with the Commission in compliance
with the Securities Act and the rules and regulations promulgated thereunder
for
a public offering and sale of Common 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).
“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.
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2.
REGISTRATION RIGHTS.
2.1
Demand Registration.
2.1.1
Request for Registration.
At any
time and from time to time on or after the Founder Warrant Release Date or
the
Initial Shares Release Date, as applicable, the holders of a
majority-in-interest of such Registrable Securities as have been released
from
escrow may make up to three written demands 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 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 all
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 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 until (i) such stop order or injunction is
removed, rescinded or otherwise terminated, and (ii) a majority-in-interest
of
the Demanding Holders thereafter elect 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 of the Demanding Holders
so elect 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 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 for the account of other persons
that
the Company is obligated to register pursuant to written contractual
arrangements with such persons and that can be sold without exceeding the
Maximum Number of Shares.
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2.1.5
Withdrawal. If a majority-in-interest of the Demanding Holders disapprove
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
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.
2.2
Piggy-Back Registration.
2.2.1
Piggy-Back Rights. If at any time on or after the Founder Warrant Release
Date or the Initial Shares Release Date, as applicable, 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 have been released from
escrow and requested by such holders in writing within five (5) business
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 its 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 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.
4
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, 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 persons
other than the holders of Registrable 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, 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.
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.
5
2.3
Registrations on Form S-3. The holders of Registrable Securities may at
any time after the date the Company consummates a business combination, 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, 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 its 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 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 its best efforts
to
cause such Registration Statement to become effective and use its best efforts
to keep it 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 a Chief Executive Officer of the Company
stating that, in the good faith judgment of the board of directors of the
Company, 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.
6
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 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
promptly and confirm such advice in writing in all events 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 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 holders of
a
majority of the Registrable Securities included in such
registration.
8
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 Company’s Board of Directors,
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) Financial Industry Regulatory
Authority, 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 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 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 and applicable rules and regulations
of
governing agencies.
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 an Investor
and each other holder of Registrable Securities (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) (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.
9
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 another selling
holder or such underwriter within the meaning of the Securities Act, against
any
expenses, losses, claims, judgments, damages or liabilities, whether joint
or
several, insofar as such expenses, 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 expense, 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
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.
10
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.
6.1
Other Registration Rights. 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
Waiver of Claims against Trust Account. Notwithstanding any other
provision of this Agreement, each Investor confirms its understanding that
the
Company has established the Trust Account relating to the Units being sold
in
the Company’s initial public offering. Each Investor acknowledges that the Trust
Account will exist for the benefit of the Company’s public stockholders and the
monies from the Trust Account may only be disbursed upon the occurrence of
certain events, as more fully described in the prospectus relating to the
Units.
Each Investor agrees that neither it nor any of its affiliates have or will
have
any right, title, interest or claim in or to the monies in the Trust Account,
and each Investor hereby waives any and all right, title, interest of claim
of
any kind in or to any distribution of any property held in the Trust Account
that it or its affiliates may have now or in the future and hereby agrees
not to
seek recourse, reimbursement, payment or satisfaction for any claim of any
kind
against the Trust Account for any reason whatsoever, including in respect
of the
Company’s indemnification obligations set forth in this Agreement.
6.3
Assignment; 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, and
shall
be deemed to be, freely assigned or delegated by such holder of Registrable
Securities in conjunction with and to the extent of any permitted transfer
of
Registrable Securities 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 Broadband Capital Management, LLC as representative of the
underwriters in connection with the Company’s initial public offering
(“Broadband”) 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, this Section 6.3 and
Sections 6.7 and 6.9. Notwithstanding the foregoing, Broadband shall be deemed
to be an intended third party beneficiary of this Agreement.
6.4
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 air courier service with charges prepaid, or transmitted by hand
delivery, telex 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 telex or 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 air courier service
with
an order for next-day delivery.
11
To
the
Company:
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention: Xxx
Xxxxxxxxxxx, Chief Financial Officer
with
a
copy to:
Broadband
Capital Management, LLC
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
______________________
To
an
Investor, to:
PJC
Consumer Partners Acquisition I, LLC
c/o
Xxxxx
Xxxxxxx
000
Xxxxxxxx Xxxx,
Xxxxxxxxxxx,
XX 00000
Attention:
________________________
Aria
Select Consumer Fund LP
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention:
________________________
Aria
Partners LP
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention:
________________________
Aria
Partners II LP
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention:
________________________
Aria
Partners (Cayman) Ltd.
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention:
________________________
Kata
Ltd.
00000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention:
________________________
12
A
copy of
any notice sent hereunder shall be sent to:
Xxxxx
Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx, PC
The
Chrysler Building
000
Xxxxx
Xxxxxx
Xxx
Xxxx
XX 00000
Attention: Xxxxxxx
X. Xxxx, Esq.
and:
Loeb
& Loeb, LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxx X. Xxxxxxxx, Esq.
6.5
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.
6.6
Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, and all of which taken together
shall
constitute one and the same instrument.
6.7
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.
6.8
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 SunTrust to amend or modify this Agreement.
6.9
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.
6.10
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.
6.11
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.
13
6.12
Governing Law. This Agreement shall be governed by, interpreted under,
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed within the State of New
York,
without giving effect to any choice-of-law provisions thereof that would
compel
the application of the substantive laws of any other jurisdiction.
6.13
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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
14
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.
|
By:
Xxxx X. Xxxxxxx, Chief Executive Officer
|
|
|
INVESTORS:
|
|
|
ARIA
EQUITY PARTNERS LLC
|
|
|
By:
___________________________
|
|
|
PJC
CONSUMER PARTNERS ACQUISITION I, LLC
|
|
|
By:
___________________, ___________________
|
|
|
BCM
EQUITY PARTNERS II LLC
|
|
|
By:
__________________, _____________________
|
|
|
ARIA
SELECT CONSUMER FUND LP
|
|
|
________________________________________________
|
|
|
By:
__________________, _____________________
|
|
|
ARIA
PARTNERS LP
|
|
|
________________________________________________
|
|
|
By:
__________________, _____________________
|
|
|
ARIA
PARTNERS II LP
|
|
|
________________________________________________
|
|
|
By:___________________,
_____________________
|
|
|
ARIA
PARTNERS (CAYMAN) LTD.
|
|
|
________________________________________________
|
|
|
By:___________________,
______________________
|
|
|
KATA
LTD.
|
|
|
_________________________________________________
|
|
|
By:
___________________,
______________________
|
15
