Contract
EXHIBIT
10.12
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
entered into as of the __ day of ________, 2008, by and among Symphony
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;
WHEREAS,
the Investors and the Company desire to enter into this Agreement
to provide the
Investors with certain rights relating to the registration of shares
of Common
Stock held by them;
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.
“Indemnified
Party”
is
defined in Section 4.3.
“Indemnifying
Party”
is
defined in Section 4.3.
“Initial
Common Stock”
means
the shares of Common Stock underlying the Initial Units issued
and outstanding
prior to the IPO.
“Initial
Securities”
means
the shares of Initial Common Stock, the Initial Units, the Initial
Warrants and
the shares of Common Stock underlying the Initial Warrants.
“Initial
Units”
means
the units, each consisting of one share of Initial Common Stock
and one Initial
Warrant, held by the Investors prior the date hereof.
“Initial
Warrants”
means
the warrants of the Company to purchase shares of Common Stock
underlying the
Initial Units issued and outstanding prior to the IPO.
“Insider
Warrants”
means
the Warrants being purchased privately by certain of the Investors
simultaneously with the consummation of the Company’s initial public
offering.
“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.
“Pro
Rata”
as
defined in Section 2.1.4.
“Register,”
“Registered”
and
“Registration”
mean
a
registration effected by preparing and filing a registration statement
or
similar document in compliance with the requirements of the Securities
Act, and
the applicable rules and regulations promulgated thereunder, and
such
registration statement becoming effective.
“Registrable
Securities”
mean
(i) all of the Initial Units (and underlying securities) beneficially
owned or
held by Investors prior to the consummation of the Company’s initial public
offering and (ii) all of the Insider Warrants (and underlying shares
of Common
Stock). 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.
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)
all
of
the Registrable Securities are freely saleable under Rule 144 without
restriction.
“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 Registrable Securities (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).
2
“Release
Date”
means
the date on which the Initial Units (and underlying securities)
are disbursed
from escrow pursuant to Section 3 of that certain Securities Escrow
Agreement
dated as of ________, 2008 by and among the parties hereto and
American Stock
Transfer & Trust Company.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
of the
Commission promulgated thereunder, all as the same shall be in
effect at the
time.
“Underwriter”
means
a
securities dealer who purchases any Registrable Securities as principal
in an
underwritten offering and not as part of such dealer’s market-making
activities.
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 date that is (i) after
the Company
consummates a Business Combination (as defined in the Company’s Registration
Statement with respect to its initial public offering) with respect
to the
Insider Warrants (or underlying shares of Common Stock) or (ii)
three months
prior to the Release Date with respect to all Registrable Securities
(to the
extent not previously registered by the Company pursuant to the
preceding
subclause (i)), the holders of a majority-in-interest of such Insider
Warrants
(or underlying shares of Common Stock) or other Registrable Securities,
as the
case may be, held by the Investors or the transferees of the Investors,
may make
a written demand for registration under the Securities Act of all
or part of
their Insider Warrants (or underlying shares of Common Stock) or
other
Registrable Securities, as the case may be (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.
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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 registrable pursuant to the terms of
the Unit Purchase
Option issued to EarlyBirdCapital, Inc. or its designees in connection
with the
Company’s initial public offering (the “Unit
Purchase Option”
and
such registrable securities, the "Option
Securities")
as to
which "piggy-back" registration has been requested by the holders
thereof, Pro
Rata, that can be sold without exceeding the Maximum Number of
Shares; and (iv)
fourth, to the extent that the Maximum Number of Shares have not
been reached
under the foregoing clauses (i), (ii), and (iii), the shares of
Common Stock or
other securities for the account of other persons that the Company
is 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 date the Company consummates a Business
Combination 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 a merger or other similar transaction or an exchange offer
or offering of
securities solely to the Company’s existing stockholders, (iii) for an offering
of debt that is convertible into equity securities of the Company
or (iv) for a
dividend reinvestment plan, then the Company shall (x) give written
notice of
such proposed filing to the holders of Registrable Securities as
soon as
practicable but in no event less than ten (10) days before the
anticipated
filing date, which notice shall describe the amount and type of
securities to be
included in such offering, the intended method(s) of distribution,
and the name
of the proposed managing Underwriter or Underwriters, if any, of
the offering,
and (y) offer to the holders of Registrable Securities in such
notice the
opportunity to register the sale of such number of shares of Registrable
Securities as such holders may request in writing within five (5)
days following
receipt of such notice (a “Piggy-Back
Registration”).
The
Company shall cause such Registrable Securities to be included
in such
registration and shall use 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.
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:
5
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; and
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, as
applicable, that can be sold without exceeding the Maximum Number
of Shares; and
(D) fourth, to the extent that the Maximum Number of Shares has
not been reached
under the foregoing clauses (A), (B) and (C), the shares of Common
Stock or
other securities for the account of other persons that the Company
is obligated
to register pursuant to written contractual arrangements with such
persons, that
can be sold without exceeding the Maximum Number of Shares.
2.2.3. Withdrawal.
Any
holder of Registrable Securities may elect to withdraw such holder’s request for
inclusion of Registrable Securities in any Piggy-Back Registration
by giving
written notice to the Company of such request to withdraw prior
to the
effectiveness of the Registration Statement. The Company (whether
on its own
determination or as the result of a withdrawal by persons making
a demand
pursuant to written contractual obligations) may withdraw a registration
statement at any time prior to the effectiveness of the Registration
Statement.
Notwithstanding any such withdrawal, the Company shall pay all
expenses incurred
by the holders of Registrable Securities in connection with such
Piggy-Back
Registration as provided in Section 3.3.
6
2.3 Registrations
on Form S-3.
The
holders of Registrable Securities may at any time and from time
to time, request
in writing that the Company register the resale of any or all of
such
Registrable Securities on Form S-3 or any similar short-form registration
which
may be available at such time (“Form
S-3”);
provided, however, that the Company shall not be obligated to effect
such
request through an underwritten offering. Upon receipt of such
written request,
the Company will promptly give written notice of the proposed registration
to
all other holders of Registrable Securities, and, as soon as practicable
thereafter, effect the registration of all or such portion of such
holder’s or
holders’ Registrable Securities as are specified in such request, together
with
all or such portion of the Registrable Securities or other securities
of the
Company, 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 and in any event within
sixty (60)
days after receipt of a request for a Demand Registration pursuant
to Section
2.1, prepare and file with the Commission a Registration Statement
on any form
for which the Company then qualifies or which counsel for the Company
shall deem
appropriate and which form shall be available for the sale of all
Registrable
Securities to be registered thereunder in accordance with the intended
method(s)
of distribution thereof, and shall use its best efforts to cause
such
Registration Statement to become and remain effective for the period
required by
Section 3.1.3; provided, however, that the Company shall have the
right to defer
any Demand Registration for up to thirty (30) days, and any Piggy-Back
Registration for such period as may be applicable to deferment
of any demand
registration to which such Piggy-Back Registration relates, in
each case if the
Company shall furnish to the holders a certificate signed by the
Chairman of the
Board or President 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.
7
3.1.2. Copies.
The
Company shall, prior to filing a Registration Statement or prospectus,
or any
amendment or supplement thereto, furnish without charge to the
holders of
Registrable Securities included in such registration, and such
holders’ legal
counsel, copies of such Registration Statement as proposed to be
filed, each
amendment and supplement to such Registration Statement (in each
case including
all exhibits thereto and documents incorporated by reference therein),
the
prospectus included in such Registration Statement (including each
preliminary
prospectus), and such other documents as the holders of Registrable
Securities
included in such registration or legal counsel for any such holders
may request
in order to facilitate the disposition of the Registrable Securities
owned by
such holders.
3.1.3. Amendments
and Supplements.
The
Company shall prepare and file with the Commission such amendments,
including
post-effective amendments, and supplements to such Registration
Statement and
the prospectus used in connection therewith as may be 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 reasonably object.
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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.
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.
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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.
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 Association 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.
10
3.4 Information.
The
holders of Registrable Securities shall provide such information
as may
reasonably be requested by the Company, or the managing Underwriter,
if any, in
connection with the preparation of any Registration Statement,
including
amendments and supplements thereto, in order to effect the registration
of any
Registrable Securities under the Securities Act pursuant to Section
2 and in
connection with the Company’s obligation to comply with federal and applicable
state securities laws.
4. INDEMNIFICATION
AND CONTRIBUTION.
4.1 Indemnification
by the Company.
The
Company agrees to indemnify and hold harmless each Investor and
each other
holder of Registrable Securities, and each of their respective
officers,
employees, affiliates, directors, partners, members, attorneys
and agents, and
each person, if any, who controls 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.
11
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 losses, claims, judgments, damages
or
liabilities, whether joint or several, insofar as such losses,
claims,
judgments, damages or liabilities (or actions in respect thereof)
arise out of
or are based upon any untrue statement or allegedly untrue statement
of a
material fact contained in any Registration Statement under which
the sale of
such Registrable Securities was registered under the Securities
Act, any
preliminary prospectus, final prospectus or summary prospectus
contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or the
alleged
omission to state a material fact required to be stated therein
or necessary to
make the statement therein not misleading, if the statement or
omission was made
in reliance upon and in conformity with information furnished in
writing to the
Company by such selling holder expressly for use therein, and shall
reimburse
the Company, its directors and officers, and each other selling
holder or
controlling person for any legal or other expenses reasonably incurred
by any of
them in connection with investigation or defending any such loss,
claim, damage,
liability or action. Each selling holder’s indemnification obligations hereunder
shall be several and not joint and shall be limited to the amount
of any net
proceeds actually received by such selling holder.
4.3 Conduct
of Indemnification Proceedings.
Promptly after receipt by any person of any notice of any loss,
claim, damage or
liability or any action in respect of which indemnity may be sought
pursuant to
Section 4.1 or 4.2, such person (the “Indemnified
Party”)
shall,
if a claim in respect thereof is to be made against any other person
for
indemnification hereunder, notify such other person (the “Indemnifying
Party”)
in
writing of the loss, claim, judgment, damage, liability or action;
provided,
however, that the failure by the Indemnified Party to notify the
Indemnifying
Party shall not relieve the Indemnifying Party from any liability
which the
Indemnifying Party may have to such Indemnified Party hereunder,
except and
solely to the extent the Indemnifying Party is actually prejudiced
by such
failure. If the Indemnified Party is seeking indemnification with
respect to any
claim or action brought against the Indemnified Party, then the
Indemnifying
Party shall be entitled to participate in such claim or action,
and, to the
extent that it wishes, jointly with all other Indemnifying Parties,
to assume
control of the defense thereof with counsel satisfactory to the
Indemnified
Party. After notice from the Indemnifying Party to the Indemnified
Party of its
election to assume control of the defense of such claim or action,
the
Indemnifying Party shall not be liable to the Indemnified Party
for any legal or
other expenses subsequently incurred by the Indemnified Party in
connection with
the defense thereof other than reasonable costs of investigation;
provided,
however, that in any action in which both the Indemnified Party
and the
Indemnifying Party are named as defendants, the Indemnified Party
shall have the
right to employ separate counsel (but no more than one such separate
counsel) to
represent the Indemnified Party and its controlling persons who
may be subject
to liability arising out of any claim in respect of which indemnity
may be
sought by the Indemnified Party against the Indemnifying Party,
with the fees
and expenses of such counsel to be paid by such Indemnifying Party
if, based
upon the written opinion of counsel of such Indemnified Party,
representation of
both parties by the same counsel would be inappropriate due to
actual or
potential differing interests between them. No Indemnifying Party
shall, without
the prior written consent of the Indemnified Party, consent to
entry of judgment
or effect any settlement of any claim or pending or threatened
proceeding in
respect of which the Indemnified Party is or could have been a
party and
indemnity could have been sought hereunder by such 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.
12
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
4.4.1. The
amount paid or payable by an Indemnified Party as a result of any
loss, claim,
damage, liability or action referred to in the immediately preceding
paragraph
shall be deemed to include, subject to the limitations set forth
above, any
legal or other expenses incurred by such Indemnified Party in connection
with
investigating or defending any such action or claim. Notwithstanding
the
provisions of this Section 4.4, no holder of Registrable Securities
shall be
required to contribute any amount in excess of the dollar amount
of the net
proceeds (after payment of any underwriting fees, discounts, commissions
or
taxes) actually received by such holder from the sale of Registrable
Securities
which gave rise to such contribution obligation. No person guilty
of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act)
shall be entitled to contribution from any person who was not guilty
of such
fraudulent misrepresentation.
5. UNDERWRITING
AND DISTRIBUTION.
5.1 Rule
144.
The
Company covenants that it shall file any reports required to be
filed by it
under the Securities Act and the Exchange Act and shall take such
further action
as the holders of Registrable Securities may reasonably request,
all to the
extent required from time to time to enable such holders to sell
Registrable
Securities without registration under the Securities Act within
the limitation
of the exemptions provided by Rule 144 under the Securities Act,
as such Rules
may be amended from time to time, or any similar Rule or regulation
hereafter
adopted by the Commission.
13
6. MISCELLANEOUS.
6.1 Other
Registration Rights.
Except
with respect to those securities issued or issuable upon exercise
of that
certain Unit Purchase Option to be issued to EarlyBirdCapital,
Inc. or its
designees in connection with the Company’s initial public offering in
___________ 2008, the Company represents and warrants that no person,
other than
a holder of the Registrable Securities, has any right to require
the Company to
register any shares of the Company’s capital stock for sale or to include shares
of the Company’s capital stock in any registration filed by the Company for the
sale of shares of capital stock for its own account or for the
account of any
other person.
6.2 Assignment;
No Third Party Beneficiaries.
This
Agreement and the rights, duties and obligations of the Company
hereunder may
not be assigned or delegated by the Company in whole or in part.
This Agreement
and the rights, duties and obligations of the holders of Registrable
Securities
hereunder may be freely assigned or delegated by such holder of
Registrable
Securities in conjunction with and to the extent of any transfer
of 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
hereto, the
permitted assigns of the Investor or holder of Registrable Securities,
any
assignee of the Investor or holder of Registrable Securities and
EarlyBirdCapital Inc. and its successors (as representative on
behalf of itself
and any other underwriters and their successors). This Agreement
is not intended
to confer any rights or benefits on any persons that are not party
hereto other
than as expressly set forth in Article 4 and this Section 6.2.
6.3 Notices.
All
notices, demands, requests, consents, approvals or other communications
(collectively, “Notices”)
required or permitted to be given hereunder or which are given
with respect to
this Agreement shall be in writing and shall be personally served,
delivered by
reputable air courier service with charges prepaid, or transmitted
by hand
delivery, telegram, 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 telegram, 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.
To
the
Company:
000
Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chief Executive Officer
14
with
a
copy to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx
XX 00000
Attn:
Xxxxx Xxxx Xxxxxx, Esq.
To
an
Investor, to:
6.4 Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore,
in lieu of
any such invalid or unenforceable term or provision, the parties
hereto intend
that there shall be added as a part of this Agreement a provision
as similar in
terms to such invalid or unenforceable provision as may be possible
that is
valid and enforceable.
6.5 Counterparts.
This
Agreement may be executed in multiple counterparts, each of which
shall be
deemed an original, and all of which taken together shall constitute
one and the
same instrument.
6.6 Entire
Agreement.
This
Agreement (including all agreements entered into pursuant hereto
and all
certificates and instruments delivered pursuant hereto and thereto)
constitute
the entire agreement of the parties with respect to the subject
matter hereof
and supersede all prior and contemporaneous agreements, representations,
understandings, negotiations and discussions between the parties,
whether oral
or written.
6.7 Modifications
and Amendments.
No
amendment, modification or termination of this Agreement shall
be binding upon
any party unless executed in writing by such party. Notwithstanding
the
foregoing, any and all parties must obtain the written consent
of
EarlyBirdCapital, Inc. to amend or modify this Agreement.
6.8 Titles
and Headings.
Titles
and headings of sections of this Agreement are for convenience
only and shall
not affect the construction of any provision of this Agreement.
6.9 Waivers
and Extensions.
Any
party to this Agreement may waive any right, breach or default
which such party
has the right to waive, provided that such waiver will not be effective
against
the waiving party unless it is in writing, is signed by such party,
and
specifically refers to this Agreement. Waivers may be made in advance
or after
the right waived has arisen or the breach or default waived has
occurred. Any
waiver may be conditional. No waiver of any breach of any agreement
or provision
herein contained shall be deemed a waiver of any preceding or succeeding
breach
thereof nor of any other agreement or provision herein contained.
No waiver or
extension of time for performance of any obligations or acts shall
be deemed a
waiver or extension of the time for performance of any other obligations
or
acts.
15
6.10 Remedies
Cumulative.
In the
event that the Company fails to observe or perform any covenant
or agreement to
be observed or performed under this Agreement, the Investor or
any other holder
of Registrable Securities may proceed to protect and enforce its
rights by suit
in equity or action at law, whether for specific performance of
any term
contained in this Agreement or for an injunction against the breach
of any such
term or in aid of the exercise of any power granted in this Agreement
or to
enforce any other legal or equitable right, or to take any one
or more of such
actions, without being required to post a bond. None of the rights,
powers or
remedies conferred under this Agreement shall be mutually exclusive,
and each
such right, power or remedy shall be cumulative and in addition
to any other
right, power or remedy, whether conferred by this Agreement or
now or hereafter
available at law, in equity, by statute or otherwise.
6.11 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.
6.12 Waiver
of Trial by Jury.
Each
party hereby irrevocably and unconditionally waives the right to
a trial by jury
in any action, suit, counterclaim or other proceeding (whether
based on
contract, tort or otherwise) arising out of, connected with or
relating to this
Agreement, the transactions contemplated hereby, or the actions
of the Investor
in the negotiation, administration, performance or enforcement
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
16
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.
| SYMPHONY ACQUISITION CORP. | ||
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Title:
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INITIAL
STOCKHOLDERS:
XXXXXXXXX
1991 CHILDREN’S TRUST
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Name:
Title:
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XXXX X. XXXXXXXXX |
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ARNAUD AJDLER |
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XXXXX X. XXXX |
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XXXX X. XXXXXX |
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XXXXX XXXXX |
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