REGISTRATION RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “AGREEMENT”) is entered into as of the
____ day of _______, 2006, by and among Fortissimo 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 2.4.
“INDEMNIFIED
PARTY” is defined in Section 4.3.
“INDEMNIFYING
PARTY” is defined in Section 4.3.
“INSIDER
UNITS” means the units, each consisting of one share of Common Stock and two
warrants each to purchase one share of Common Stock, being sold privately to
one
of the Company’s initial stockholders upon 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.
“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 all of the shares of Common Stock owned or held by
Investors as well as any shares of Common Stock included within or
underlying the Insider Units. 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) such securities
shall be eligible for sale pursuant to Rule 144(k) under the Securities Act
or
any successor rule which permits resale of such securities 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 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).
“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
________ __, 2006 by and among the parties hereto and Continental 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.
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2.
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REGISTRATION
RIGHTS.
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2.1
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Demand
Registration.
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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 with respect to the Insider Securities (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 Securities (or underlying securities)
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 Securities (or
underlying securities) 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
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.
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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.
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.
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2.2
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Piggy-Back
Registration.
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2.2.1. Piggy-Back
Rights. If, at any time on or after the Company consummates its initial 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 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.
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2.2.2. Withdrawal.
Any holder of Registrable Securities may elect to withdraw such holder’s request
for inclusion of Registrable Securities in any Piggy-Back Registration by giving
written notice to the Company of such request to withdraw prior to the
effectiveness of the Registration Statement. The Company (whether on its own
determination or as the result of a withdrawal by persons making a demand
pursuant to written contractual obligations) may withdraw a registration
statement at any time prior to the effectiveness of the Registration Statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred
by the holders of Registrable Securities in connection with such Piggy-Back
Registration as provided in Section 3.3.
2.3 Reduction
of Offering. If the managing Underwriter or Underwriters 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 Section 2.2, and the shares of Common Stock, if any, as
to
which registration has been requested pursuant to the written contractual
piggy-back registration rights of other stockholders of the Company, exceeds
the
Maximum Number of Shares, then the Company shall include in any such
registration:
a)
If the
registration is undertaken for the Company’s account: (A) first, the shares
of Common Stock or other securities that the Company desires to sell that can
be
sold without exceeding the Maximum Number of Shares; (B) second, to the
extent that the Maximum Number of Shares has not been reached under the
foregoing clause (A), the shares of Common Stock or other securities, if any,
comprised of Registrable Securities and Option Securities, as to which
registration has been requested pursuant to the applicable written contractual
piggy-back registration rights of such security holders, Pro Rata, that can
be
sold without exceeding the Maximum Number of Shares; and (C) third, to the
extent that the Maximum Number of shares has not been reached under the
foregoing clauses (A) and (B), the shares of Common Stock or other
securities for the account of other persons that the Company is obligated to
register pursuant to written contractual piggy-back registration rights with
such persons and that can be sold without exceeding the Maximum Number of
Shares;
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b)
If the
registration is a “demand” registration undertaken at the demand of holders of
Option Securities, (A) first, the shares of Common Stock or other
securities for the account of the demanding persons, Pro Rata, that can be
sold
without exceeding the Maximum Number of Shares; (B) second, to the extent
that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares;
(C) third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (A) and (B), the shares of Registrable
Securities, Pro Rata, as to which registration has been requested pursuant
to
the terms hereof, that can be sold without exceeding the Maximum Number of
Shares; and (D) fourth, to the extent that the Maximum Number of Shares has
not been reached under the foregoing clauses (A), (B) and (C), the shares
of Common Stock or other securities for the account of other persons that the
Company is obligated to register pursuant to written contractual arrangements
with such persons, that can be sold without exceeding the Maximum Number of
Shares; and
c)
If the
registration is a “demand” registration undertaken at the demand of persons
other than either the holders of Registrable Securities or of Option Securities,
(A) first, the shares of Common Stock or other securities for the account
of the demanding persons that can be sold without exceeding the Maximum Number
of Shares; (B) second, to the extent that the Maximum Number of Shares has
not been reached under the foregoing clause (A), the shares of Common Stock
or
other securities that the Company desires to sell that can be sold without
exceeding the Maximum Number of Shares; (C) third, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses
(A) and (B), collectively the shares of Common Stock or other securities
comprised of Registrable Securities and Option Securities, Pro Rata, as to
which
registration has been requested pursuant to the terms hereof and of the Unit
Purchase Option, as applicable, that can be sold without exceeding the Maximum
Number of Shares; and (D) fourth, to the extent that the Maximum Number of
Shares has not been reached under the foregoing clauses (A), (B) and (C),
the shares of Common Stock or other securities for the account of other persons
that the Company is obligated to register pursuant to written contractual
arrangements with such persons, that can be sold without exceeding the Maximum
Number of Shares.
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2.4 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 2.4: (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
2.4 shall not be counted as Demand Registrations effected pursuant to Section
2.1.
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3.
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REGISTRATION
PROCEDURES.
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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 sixty
(60) days, and any Piggy-Back Registration for such period as may be
applicable to deferment of any demand registration to which such Piggy-Back
Registration relates, in each case if the Company shall furnish to the holders
a
certificate signed by the Chief Executive Officer or the Chief Financial 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.
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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
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 2.4 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 2.4, and all expenses incurred in performing or complying
with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all
registration and filing fees; (ii) fees and expenses of compliance with
securities or “blue sky” laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities);
(iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees); (v) the fees and expenses incurred in connection with the
listing of the Registrable Securities as required by Section 3.1.11;
(vi) National Association of Securities Dealers, Inc. fees; (vii) fees
and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including
the
expenses or costs associated with the delivery of any opinions or comfort
letters requested pursuant to Section 3.1.9); (viii) the fees and expenses
of any special experts retained by the Company in connection with such
registration and (ix) the fees and expenses of one legal counsel selected
by the holders of a majority-in-interest 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.
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4.
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INDEMNIFICATION
AND CONTRIBUTION.
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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
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4.4
|
Contribution.
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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.
13
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5.
|
UNDERWRITING
AND DISTRIBUTION.
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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.
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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 _________ 2006, the Company represents and warrants that
no
person, other than a holder of the Registrable Securities, has any right to
require the Company to register any shares of the Company’s capital stock for
sale or to include shares of the Company’s capital stock in any registration
filed by the Company for the sale of shares of capital stock for its own account
or for the account of any other person.
6.2 Assignment;
No Third Party Beneficiaries. This Agreement and the rights, duties and
obligations of the Company hereunder may not be assigned or delegated by the
Company in whole or in part. This Agreement and the rights, duties and
obligations of the holders of Registrable Securities hereunder may be freely
assigned or delegated by such holder of Registrable Securities in conjunction
with and to the extent of any transfer of 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 EarlyBirdCapital, Inc. and
their
respective successors and the permitted assigns of the Investor or holder of
Registrable Securities or of any assignee of the Investor or holder of
Registrable Securities. This Agreement is not intended to confer any rights
or
benefits on any persons that are not party hereto other than as expressly set
forth in Article 4 and this Section 6.2.
6.3 Notices.
All notices, demands, requests, consents, approvals or other communications
(collectively, “NOTICES”) required or permitted to be given hereunder or
which are given with respect to this Agreement shall be in writing and shall
be
personally served, delivered by reputable 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.
14
To
the
Company:
00
Xxxxxxxxx Xxxxxx
Xxxx
Xxxx, Xxxx Ha’ayin 00000 Xxxxxx
Attn:
Chairman
with
a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
To
an
Investor, to:
[Name
of
Investor]
00
Xxxxxxxxx Xxxxxx
Xxxx
Xxxx, Xxxx Ha’ayin 00000 Xxxxxx
with
a
copy to:
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxxx, Esq.
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.
15
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.
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.
By:
Name:
Title:
INITIAL
STOCKHOLDERS:
Fortissimo
Capital Fund GP, L.P
By:
Name:
Title:
Xxxxxxx
Chill
Xxxx
Xxxxxxxx
17
