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EXHIBIT 10.12
WARRANT PLACEMENT AGREEMENT
WARRANT PLACEMENT AGREEMENT (this "Agreement") made as of this ___ day
of ______ 2006 among Harbor Acquisition Corporation, a Delaware corporation (the
"Company") and the undersigned (the "Purchasers").
WHEREAS, the Company has filed with the Securities and Exchange
Commission ("SEC") a registration statement on Form S-1, as amended (File No.
333-126300) (the "Registration Statement"), in connection with the Company's
initial public offering (the "IPO") of up to 11,500,000 units, each unit
("Unit") consisting of one share of the Company's common stock, $.0001 par value
(the "Common Stock"), and (ii) two warrants (the "Warrants"), each Warrant to
purchase one share of Common Stock; and
WHEREAS, the Company desires to sell in a private placement to the
Purchasers (the "Placement") an aggregate of 2,000,000 warrants (the "Placement
Warrants") substantially identical to the Warrants being issued in the IPO
pursuant to the terms and conditions hereof and as set forth in the Registration
Statement, except that the Placement Warrants to be issued in the Placement
shall not be registered under the Securities Act of 1933, as amended (the
"Securities Act");
WHEREAS, each Purchaser desires to acquire the number of Placement
Warrants set forth opposite his name on SCHEDULE A hereto;
WHEREAS, the Placement Warrants shall be governed by the Warrant
Agreement filed as an exhibit to the Registration Statement; and
WHEREAS, the Purchasers are entitled to registration rights with
respect to the Placement Warrants and the Common Stock underlying such Placement
Warrants (collectively, the "Registrable Securities") on the terms set forth in
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto do hereby agree as
follows:
1. PURCHASE OF WARRANTS. The Purchasers hereby agree, directly or through
nominees, to purchase an aggregate of 2,000,000 Placement Warrants at
a purchase price of $0.65 per Placement Warrant, or an aggregate of
$1,300,000 (the "Purchase Price"). Such purchases shall be in the
names and amounts set forth on SCHEDULE A hereto.
2. CLOSING. The closing of the purchase and sale of the Placement
Warrants (the "Closing") will take place at such time and place as the
parties may agree (the "Closing Date"), but in no event later than the
date on which the SEC declares the Registration Statement effective
(the "Effective Date"). On the Effective Date, the Purchasers shall
pay the Purchase Price by wire transfer of funds to an account
maintained by the Company. Immediately prior to the closing of the
IPO, the Company shall deposit $1,300,000 of the Purchase Price into
the trust account described in the Registration Statement (the "Trust
Account"). The certificates for the Placement Warrants shall be
delivered to the Purchasers promptly after the closing of the IPO.
3. VOTING OF SHARES. If the Company solicits approval of its stockholders
of a Business Combination, the Purchasers shall vote all of the shares
of the Common Stock acquired by the Purchasers (i) in the IPO and (ii)
in the aftermarket in favor of the Business Combination and therefore
waive any redemption rights they might have with respect to certain of
such shares. As used herein, a "Business Combination" shall mean an
acquisition by merger, capital stock exchange, asset or stock
acquisition of, or similar business combination with, one or more
entities with agreements to acquire an operating business in the
consumer or industrial products sectors selected by the Company.
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4. WAIVER OF LIQUIDATION DISTRIBUTIONS. The Purchasers hereby waive any
and all right, title, interest or claim of any kind in or to any
liquidating distributions by the Company in the event of a liquidation
of the Company upon the Company's failure to timely complete a
Business Combination. For purposes of clarity, any shares of Common
Stock purchased in the IPO or the aftermarket by the Purchasers shall
be eligible to receive any liquidating distributions by the Company.
5. LOCK-UP AGREEMENT. The Purchasers shall not sell, assign, hypothecate,
or transfer any of the Placement Warrants purchased pursuant to this
Agreement until the earlier of consummation of a Business Combination
or liquidation of the Company. In order to enforce this covenant, the
undersigned agrees, if requested by FBW, to deposit the certificates
representing the Placement Warrants in an account to be established at
FBW.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each Purchaser
hereby represents and warrants to the Company that:
6.1 The Purchaser is an "accredited investor" as that term is defined
in Rule 501 of Regulation D promulgated under the Securities Act.
6.2 The Placement Warrants are being acquired for the Purchaser's own
account, only for investment purposes and not with a view to, or
for resale in connection with, any distribution or public
offering thereof within the meaning of the Securities Act.
6.3 The Purchaser has the full right, power and authority to enter
into this Agreement and this Agreement is a valid and legally
binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms.
7. REGISTRATION RIGHTS.
7.1 DEMAND REGISTRATION. Upon the consummation of a Business
Combination, the Purchasers or their transferees holding a
majority in interest of the Registrable Securities may make a
written demand for registration under the Securities Act of all
or part of their Registrable Securities (a "Demand
Registration"). Any demand for a Demand Registration shall
specify the number of 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.
The Company shall, as expeditiously as possible and in any event
within sixty (60) days after receipt of a request for a Demand,
prepare and file with the SEC a Registration Statement on any
form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be
available for the sale of all Registrable Securities to be
registered thereunder in accordance with the intended method(s)
of distribution thereof, and shall use its best efforts to cause
such Registration Statement to become effective as promptly as
practicable, but in no event prior to the consummation of the
Business Combination.
The Company shall not be obligated to effect more than two Demand
Registrations in respect of Registrable Securities.
7.2 "PIGGYBACK" REGISTRATION RIGHTS. Subject to the last sentence of
this Section 7.2, at any time after a Business Combination, if
the Company shall determine to proceed with the actual
preparation and filing of a new registration statement under the
Securities Act in connection with the proposed offer and sale of
any of its securities by it or any of its security holders (other
than a registration statement on Form S-4, S-8 or other limited
purpose form), the Company will give written notice of its
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determination to the Purchasers or their nominees. Upon the
written request from a majority-in-interest of the Purchasers,
within 15 days after receipt of any such notice from the Company,
the Company will, except as herein provided, cause all of the
Registrable Securities covered by such request (the "Requested
Stock") held by the Purchasers making such request (the
"Requesting Holders") to be included in such registration
statement (each, a "Piggy-Back Registration"), all to the extent
requisite to permit the sale or other disposition by the
prospective seller or sellers of the Requested Stock; provided,
further, that nothing herein shall prevent the Company from, at
any time, abandoning or delaying any registration. If any
registration pursuant to this Section 7.2 shall be underwritten
in whole or in part, the Company may require that the Requested
Stock be included in the underwriting on the same terms and
conditions as the securities otherwise being sold through the
underwriters. In such event, the Requesting Holders shall, if
requested by the underwriters, execute an underwriting agreement
containing customary representations and warranties by selling
stockholders and a lock-up on Registrable Securities not being
sold. If in the good faith judgment of the managing underwriter
of such public offering the inclusion of all of the Requested
Stock would reduce the number of shares to be offered by the
Company or interfere with the successful marketing of the shares
of stock offered by the Company, the number of shares of
Requested Stock otherwise to be included in the underwritten
public offering may be reduced pro rata (by number of shares)
among the Requesting Holders and all other holders of
registration rights who have requested inclusion of their
securities or excluded in their entirety if so required by the
underwriter. To the extent only a portion of the Requested Stock
is included in the underwritten public offering, those shares of
Requested Stock which are thus excluded from the underwritten
public offering and any other securities of the Company held by
such holders shall be withheld from the market by the Holders
thereof for a period, not to exceed 90 days, which the managing
underwriter reasonably determines is necessary in order to effect
the underwritten public offering. At such time as the provisions
of the registration rights agreement filed as an exhibit to the
Registration Statement covering the shares of Common Stock
acquired by the Purchasers prior to the IPO may be exercised, the
exercise and procedural provisions of such agreement, rather than
the provisions of Sections 7.2, 7.3 and 7.4 hereof, shall govern
the Registrable Securities with respect to Piggy-Back
Registrations.
7.3 REGISTRATION PROCEDURES. To the extent required by Sections 7.1
or 7.2, the Company will:
(a) prepare and file with the SEC a registration statement with
respect to such securities, and use its best efforts to
cause such registration statement to become and remain
effective until the earlier of the date on which all of the
Registrable Securities included in the registration
statement have been disposed of in accordance with the
intended method(s) of distribution set forth in such
Registration Statement or three years from the effective
date;
(b) prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus
contained therein as may be necessary to keep such
registration statement effective until the earlier of the
date on which all of the Registrable Securities included in
the registration statement have been disposed of in
accordance with the intended method(s) of distribution set
forth in such Registration Statement or three years from the
effective date;
(c) furnish to the holders participating in such registration
and to the underwriters of the securities being registered
such reasonable number of copies of the registration
statement, preliminary prospectus, final prospectus and such
other documents as such underwriters may reasonably request
in order to facilitate the public offering of such
securities;
(d) use its best efforts to register or qualify the securities
covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as the
holders may reasonably request in writing within 20 days
following the original filing of such registration
statement, except that the Company shall not for any purpose
be required to execute a general consent to service of
process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so
qualified;
(e) notify the holders, promptly after it shall receive notice
thereof, of the time when such registration statement has
become effective or a supplement to any prospectus forming a
part of such registration statement has been filed;
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(f) notify the holders promptly of any request by the SEC for
the amending or supplementing of such registration statement
or prospectus or for additional information;
(g) prepare and promptly file with the SEC and promptly notify
such holders of the filing of such amendment or supplement
to such registration statement or prospectus as may be
necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is
required to be delivered under the Securities Act, any event
shall have occurred as the result of which any such
prospectus or any other prospectus as then in effect would
include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein, in the light of the circumstances in which they
were made, not misleading; and
(h) advise the holders, promptly after it shall receive notice
or obtain knowledge thereof, of the issuance of any stop
order by the SEC suspending the effectiveness of such
registration statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best
efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued.
The Purchasers shall cooperate with the Company in providing the information
necessary to effect the registration of the Registrable Securities, including
completion of customary questionnaires.
7.4 EXPENSES. The Company shall bear all costs and expenses incurred
in connection with any Demand Registration pursuant to Section
7.1, any Piggy-Back Registration pursuant to Section 7.2, 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 exchange listing of the Registrable Securities; (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); (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 shareholders 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.
8. WAIVER OF CLAIMS; INDEMNIFICATION. The Purchasers hereby waive any and
all rights to assert any present or future claims, including any right
of rescission, against the Company, FBW or the other underwriters in
the IPO with respect to their purchase of the Placement Warrants, and
each Purchaser agrees jointly and severally to indemnify and hold the
Company, FBW and the other underwriters in the IPO harmless from all
losses, damages or expenses that relate to claims or proceedings
brought against the Company, FBW or such other underwriters by any
Purchaser of the Placement Warrants or their transferees, heirs,
assigns or any subsequent holders of the Placement Warrants.
9. COUNTERPARTS; FACSIMILE. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and
the same instrument. This Agreement or any counterpart may be executed
via facsimile transmission, and any such executed facsimile copy shall
be treated as an original.
10. GOVERNING LAW. This Agreement shall for all purposes be deemed to be
made under and shall be construed in accordance with the laws of the
State of Maryland. Each of the parties hereby agrees that any action,
proceeding or claim against it arising out of or relating in any way
to this Agreement shall be brought and
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enforced in the courts of the State of Maryland or the United States
District Court for the District of Maryland, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. Each of
the parties hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
___ day of _______ 2006.
HARBOR ACQUISITION CORPORATION
By:
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Robert J. Hanks, Chief Executive Officer
PURCHASERS:
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Name:
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Name:
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SCHEDULE A
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