0001193805-13-001005.txt : 20130522 0001193805-13-001005.hdr.sgml : 20130522 20130522170656 ACCESSION NUMBER: 0001193805-13-001005 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20130522 DATE AS OF CHANGE: 20130522 GROUP MEMBERS: 2012 DOOH INVESTMENTS LLC GROUP MEMBERS: DOOH INVESTMENT MANAGER LLC GROUP MEMBERS: DRW COMMODITIES, LLC GROUP MEMBERS: DRW HOLDINGS, LLC FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Wilson Donald R. Jr. CENTRAL INDEX KEY: 0001565352 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 540 W. MADISON ST., SUITE 2500 CITY: CHICAGO STATE: IL ZIP: 60661 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SCG Financial Acquisition Corp. CENTRAL INDEX KEY: 0001512074 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 274452594 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-86187 FILM NUMBER: 13865539 BUSINESS ADDRESS: STREET 1: 615 N. WABASH CITY: CHICAGO STATE: IL ZIP: 60611 BUSINESS PHONE: 312-784-3960 MAIL ADDRESS: STREET 1: 615 N. WABASH CITY: CHICAGO STATE: IL ZIP: 60611 SC 13D/A 1 e610945_13da-wilson.htm Unassociated Document
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 3)*

SCG FINANCIAL ACQUISITION CORP.

(Name of Issuer)

Common Stock, par value $0.0001 per share

(Title of Class of Securities)

78404K103

(CUSIP Number)

2012 DOOH INVESTMENTS LLC
540 W. Madison Street, Suite 2500
Chicago, Illinois 60661
Attn: Donald R. Wilson, Jr.
(312) 542-1001


Copy to:
 
Mark D. Wood, Esq.
Katten Muchin Rosenman LLP
525 West Monroe Street
Suite 1900
Chicago, Illinois  60661
(312) 902-5200

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

April 19, 2013

(Date of Event which Requires Filing of this Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
 
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
 
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 1 of 11 Pages
 
1
NAME OF REPORTING PERSONS
 
2012 DOOH Investments LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 
 
 
  (a) o
  (b) þ
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Illinois
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
1,361,905
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
1,523,810
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,123,810
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
33.8%(1)
14
TYPE OF REPORTING PERSON
 
OO
 
(1) Based on 6,285,583 shares of the Issuer’s common stock outstanding as of May 15, 2013, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed with the Securities and Exchange Commission on May 15, 2013.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 2 of 11 Pages
 
1
NAME OF REPORTING PERSONS
 
DOOH Investment Manager LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 
 
 
  (a) o
  (b) þ
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Illinois
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
1,361,905
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
0
10
SHARED DISPOSITIVE POWER
 
1,523,810
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,123,810
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
33.8%(1)
14
TYPE OF REPORTING PERSON
 
OO
 
(1) Based on 6,285,583 shares of the Issuer’s common stock outstanding as of May 15, 2013, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed with the Securities and Exchange Commission on May 15, 2013.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 3 of 11 Pages
 
1
NAME OF REPORTING PERSONS
 
DRW Holdings, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 
 
 
  (a) o
  (b) þ
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 Delaware
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
2,354,450
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
2,354,450
10
SHARED DISPOSITIVE POWER
 
0
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,354,450
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
37.5%(1)
14
TYPE OF REPORTING PERSON
 
OO
 
(1) Based on 6,285,583 shares of the Issuer’s common stock outstanding as of May 15, 2013, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed with the Securities and Exchange Commission on May 15, 2013.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 4 of 11 Pages
 
1
NAME OF REPORTING PERSONS
 
DRW Commodities, LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 
 
 
  (a) o
  (b) þ
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
PF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 Delaware
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
2,354,450
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
2,354,450
10
SHARED DISPOSITIVE POWER
 
0
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,354,450
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
37.5%(1)
14
TYPE OF REPORTING PERSON
 
OO
 
(1) Based on 6,285,583 shares of the Issuer’s common stock outstanding as of May 15, 2013, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed with the Securities and Exchange Commission on May 15, 2013.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 5 of 11 Pages
 
1
NAME OF REPORTING PERSONS
 
Donald R. Wilson, Jr.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 
 
 
  (a) o
  (b) þ
3
SEC USE ONLY
 
 
4
SOURCE OF FUNDS
 
AF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
 
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
Illinois
 
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
7
SOLE VOTING POWER
 
3,716,355
8
SHARED VOTING POWER
 
0
9
SOLE DISPOSITIVE POWER
 
2,954,450
10
SHARED DISPOSITIVE POWER
 
1,523,810
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
4,478,260
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
71.2%(1)
14
TYPE OF REPORTING PERSON
 
IN
 
(1) Based on 6,285,583 shares of the Issuer’s common stock outstanding as of May 15, 2013, as set forth in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2013, filed with the Securities and Exchange Commission on May 15, 2013.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 6 of 11 Pages
 
This Amendment No. 3 (this “Amendment”) to Schedule 13D amends the Schedule 13D (the “Schedule 13D”) filed with the Securities and Exchange Commission (the “SEC”) by Donald R. Wilson, Jr. (“Wilson”), 2012 DOOH Investments LLC (“DOOH Investments”) and DOOH Investment Manager LLC (“DOOH Manager”) on December 26, 2012, as amended by Amendment No. 1 to the Schedule 13D filed with the SEC on January 14, 2013 and Amendment No. 2 to the Schedule 13D filed with the SEC on February 12, 2013 by Wilson, DOOH Investments, DOOH Manager, DRW Commodities, LLC (“DRW Commodities”) and DRW Holdings, LLC (“DRW Holdings”), with respect to the securities of SCG Financial Acquisition Corp. (the “Issuer”).  The purpose of this Amendment is to report (i) the acquisition by DOOH Investments of an aggregate of 600,000 shares of the common stock, par value $0.0001 per share (“Common Stock”), of the Issuer, which Wilson and DOOH Manager may be deemed to beneficially own, (ii) the cancellation of 120,000 shares of Common Stock previously held by DRW Commodities and (iii) changes in the percentage of the Issuer’s outstanding common stock beneficially owned by the reporting persons as a result of changes in the number of outstanding shares of the Issuer’s common stock.    Except as otherwise indicated herein, the information in the Schedule 13D, as previously amended, remains unchanged.  Capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in the Schedule 13D.

Item 3.       Source and Amount of Funds or Other Consideration

Item 3 of the Schedule 13D is hereby amended by adding the following:

On April 19, 2013, DRW Commodities entered into a Common Stock Purchase Agreement (the “April 2013 Purchase Agreement”) with the Issuer, pursuant to which DRW Commodities agreed to purchase, and the Issuer agreed to sell to DRW Commodities, 500,000 shares (the “April 2013 Shares”) of the Issuer’s Common Stock, for $10 per share.  DOOH Investments (rather than DRW Commodities) intended to purchase the April 2013 Shares, and accordingly, DRW Commodities assigned all of its rights under the April 2013 Purchase Agreement to DOOH Investments, which purchased the April 2013 Shares as of April 19, 2013 for an aggregate purchase price of $5,000,000.  DOOH Investments utilized cash on hand to fund the purchase price.

In May 2013, the Issuer rescinded its issuance of the 120,000 Commitment Fulfillment Shares issued to DRW Commodities on February 8, 2013.  Accordingly, DRW Commodities surrendered the Commitment Fulfillment Shares to the Issuer for cancellation on May 9, 2013.  DRW Commodities received no consideration in connection with the surrender of the Commitment Fulfillment Shares.

On May 13, 2013, the Issuer issued 100,000 shares (the “Standby Facility Shares”) of the Issuer’s Common Stock to DOOH Investments, pursuant to the terms of a financing commitment entered into between the Issuer and the Donald R. Wilson, Jr. 2002 Trust (the “2002 Trust”), a trust for the benefit of members of Wilson’s immediate family and of which Wilson serves as trustee and investment adviser, on March 1, 2013, whereby the 2002 Trust provided a standby credit facility to the Issuer.  The 2002 Trust did not make any advances under such credit facility, and such credit facility is no longer available to the Issuer.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 7 of 11 Pages
 
Item 4.        Purpose of Transaction

Item 4 of the Schedule 13D is hereby amended by adding the following:

DOOH Investments purchased the April 2013 Shares for investment purposes and to provide the Issuer with additional working capital.

The Standby Facility Shares were acquired by DOOH Investments pursuant to a standby credit facility between the 2002 Trust and the Issuer, the purpose of which was to finance expenses and other amounts payable by the Issuer under or in connection with its acquisition of Symon Holdings Corporation (“Symon”) pursuant to the Merger Agreement, dated March 1, 2013, by and among SCG Financial Merger III Corp., Symon, and a securityholders’ representative named therein, to the extent the Issuer did not have sufficient available cash on hand to consummate such acquisition.  The 2002 Trust did not make any advances under such credit facility, and such credit facility is no longer available to the Issuer.

Item 5.        Interest in Securities of the Issuer

Items 5(a), 5(b) and 5(c) of the Schedule 13D are hereby amended and restated as follows:

(a)           Based on information contained in the Registration Statement on Form S-1 filed by the Issuer with the Securities and Exchange Commission (the “SEC”) on May 7, 2013,  6,285,583 shares of the Issuer’s Common Stock were outstanding as of May 1, 2013.  Based on the foregoing, (i) the aggregate of 4,478,260 shares of Common Stock that Wilson may be deemed to beneficially own represent approximately 71.2% of the Common Stock outstanding; (ii) the 2,123,810 shares of Common Stock that DOOH Investments and DOOH Manager may be deemed to beneficially own represent approximately 33.8% of the Common Stock outstanding; (iii) the 2,354,450 shares of Common Stock that DRW Commodities and DRW Holdings may be deemed to beneficially own represent approximately 37.5% of the Common Stock outstanding; and (iv) the 4,478,260 shares of Common Stock that all of the Reporting Persons collectively beneficially own represent approximately 71.2% of the Common Stock outstanding.

(b)           Pursuant to the Unit Purchase Agreement, DOOH Investments possesses voting discretion (subject to voting restrictions contained in the Letter Agreement) with respect to the 761,905 Founder Shares that are subject to the Voting Rights and exercises the Voting Rights through DOOH Manager, which it has appointed as a manager of Holdings.  Wilson ultimately exercises voting discretion on behalf of DOOH Manager, in his capacity as its sole manager.  As a result, each of Wilson, DOOH Manager and DOOH Investments may be deemed to have sole power to direct the vote of the 761,905 Founder Shares that are subject to the Voting Rights and therefore beneficially own such shares.   The two managers of Holdings, DOOH Manager and Gregory H. Sachs (“Sachs”), share the power to dispose, or direct the disposition, of the 1,523,810 shares of Common Stock held directly by Holdings, subject to restrictions on transfer set forth in the Letter Agreement.   Wilson, in his capacity as the sole manager of DOOH Manager, may also be deemed to share investment discretion with respect all of the 1,523,810 Founder Shares.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 8 of 11 Pages
 
Each of Wilson, DOOH Manager and DOOH Investments may also be deemed to have sole voting and sole dispositive power with respect to the 600,000 shares of Common Stock held by DOOH Investments.

In addition, Wilson is the sole manager of DRW Commodities and DRW Holdings, which owns 100% of the outstanding equity of DRW Commodities, and, as such, each of Wilson, DRW Holdings and DRW Commodities may be deemed to have sole voting and sole dispositive power with respect to the 2,354,450 shares of Common Stock held by DRW Commodities.

 (c)           Except as set forth in Item 3, no Reporting Person has effected any transaction in the Common Stock during the past 60 days.

Item 6.      Contracts, Arrangements, Understandings or Relationships With Respect toSecurities of the Issuer

Item 6 of the Schedule 13D is hereby amended by adding the following:

Sponsor Warrants

Holdings holds warrants entitling the holder to purchase up to an aggregate of 4,000,000 shares of the Issuer’s Common Stock (the “Sponsor Warrants”) at an exercise price of $11.50 per share, subject to adjustment.  The Sponsor Warrants were not exercisable in any event prior to the 30th day after the consummation of the Issuer’s initial business combination, or May 8, 2013, and remain unexercisable unless and until there is an effective registration statement under the Securities Act of 1933, as amended, covering the shares of Common Stock issuable upon exercise of the Sponsor Warrants and a current prospectus relating to them is available.  As a result of such conditions to Holdings’ ability to exercise the Sponsor Warrants, the number of shares of Common Stock that each of DOOH Investments, DOOH Manager and Wilson beneficially owns does not include any shares underlying the Sponsor Warrants.

Note Conversion Warrants

On April 8, 2013, the Issuer issued to DOOH Investments warrants entitling the holder to purchase up to an aggregate of 533,333 shares of the Issuer’s Common Stock (the “Note Conversion Warrants”) at an exercise price of $11.50 per share, subject to adjustment.  The Note Conversion Warrants were issued upon the conversion of a promissory note issued by the Issuer to Holdings, and subsequently assigned to DOOH Investments, in the principal amount of $400,000.  The Note Conversion Warrants are not currently exercisable and will not be exercisable unless and until there is an effective registration statement under the Securities Act of 1933, as amended, covering the shares of Common Stock issuable upon exercise of the Note Conversion Warrants and a current prospectus relating to them is available.  As a result of such conditions to DOOH Investments’ ability to exercise the Note Conversion Warrants, the number of shares of Common Stock that each of DOOH Investments, DOOH Manager and Wilson beneficially owns does not include any shares underlying the Note Conversion Warrants.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 9 of 11 Pages
 
April 2013 Purchase Agreement

On April 19, 2013, DRW Commodities entered into the April 2013 Purchase Agreement with the Issuer, pursuant to which DRW Commodities agreed to purchase, and the Issuer agreed to sell to DRW Commodities, the April 2013 Shares for $10 per share.  DOOH Investments (rather than DRW) intended to purchase the April 2013 Shares, and accordingly, DRW Commodities assigned all of its rights under the April 2013 Purchase Agreement to DOOH Investments, which purchased the April 2013 Shares as of April 19, 2013 for an aggregate purchase price of $5,000,000.

Registration Rights Agreement

On April 19, 2013, the Issuer entered into a registration rights agreement (the “April 2013 Registration Rights Agreement”) with DRW Commodities.  The April 2013 Registration Rights Agreement, provides for demand and piggy-back registration rights with respect to the 2,354,450 shares acquired by DRW Commodities pursuant to the Equity Commitment Agreement, any other shares of Common Stock held by DRW Commodities, and any additional shares of Common Stock issued with respect to such shares by way of a stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization.  In addition, the April 2013 Purchase Agreement provided DOOH Investments, as assignee of DRW Commodities’ rights thereunder, with demand and piggy-back registration rights with respect to the 500,000 April 2013 Shares and any other shares of Common Stock issued with respect to such shares by way of a stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization.
 
Item 7.      Material to Be Filed as Exhibits

Item 7 of the Schedule 13D is hereby amended by adding the following as Exhibits 99.12, 99.13 and 99.14:
 
Exhibit 99.12   Registration Rights Agreement, dated April 19, 2013, by and between SCG Financial Acquisition Corp. and DRW Commodities, LLC.
 
Exhibit 99.13  Common Stock Purchase Agreement, dated April 19, 2013, by and between SCG Financial Acquisition Corp. and DRW Commodities, LLC.
 
Exhibit 99.14  Assignment and Assumption Agreement, dated as of April 19, 2013, by and between DRW Commodities, LLC and 2012 DOOH Investments LLC.
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 11 of 11 Pages
 
SIGNATURES
 
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 
Dated: May 22, 2013

2012 DOOH INVESTMENTS LLC
 
By: DOOH Investment Manager LLC
Its: Manager


By:  /s/ Donald R. Wilson, Jr.                                           
Name:  Donald R. Wilson, Jr.
Title:  Manager


DOOH INVESTMENT MANAGER LLC

 
By:  /s/ Donald R. Wilson, Jr.                                           
Name:  Donald R. Wilson, Jr.
Title:  Manager
 
 
/s/ Donald R. Wilson, Jr.                                           
Donald R. Wilson, Jr.


DRW COMMODITIES, LLC


By:  /s/ Donald R. Wilson, Jr.                                           
Name:  Donald R. Wilson, Jr.
Title:  Manager
 

DRW HOLDINGS, LLC


By:  /s/ Donald R. Wilson, Jr.                                           
Name:  Donald R. Wilson, Jr.
Title:  Manager
 
 
 

 
 
CUSIP No.
78404K103
13D
Page 11 of 11 Pages
 

 
Exhibit Index
 

Exhibit 99.12    Registration Rights Agreement, dated April 19, 2013, by and between SCG Financial Acquisition Corp. and DRW Commodities, LLC.
 
Exhibit 99.13  Common Stock Purchase Agreement, dated April 19, 2013, by and between SCG Financial Acquisition Corp. and DRW Commodities, LLC.
 
Exhibit 99.14  Assignment and Assumption Agreement, dated as of April 19, 2013, by and between DRW Commodities, LLC and 2012 DOOH Investments LLC.
 
 
EX-99.12 2 e610945_ex99-12.htm Unassociated Document
Exhibit 99.12
REGISTRATION RIGHTS AGREEMENT
 
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of April 19, 2013 by and between SCG Financial Acquisition Corp., a Delaware corporation (the “Company”), and DRW Commodities, LLC, a Delaware limited liability company (the “Stockholder”).  Capitalized terms used but not otherwise defined herein have the meanings assigned such terms in Section 10 hereof.
 
WHEREAS, the Stockholder acquired 2,354,450 shares of Common Stock (the “Equity Commitment Shares”) pursuant to an Equity Commitment Letter, dated December 14, 2012, by and between 2012 DOOH Investments LLC and the Company (the “Equity Commitment Letter”), which Equity Commitment Letter was subsequently assigned by 2012 DOOH Investments LLC to the Stockholder pursuant to an Assignment and Assumption Agreement dated January 8, 2013;
 
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of January 11, 2013 (the “Merger Agreement”), by and among the Company, SCG Financial Merger II Corp., a Delaware corporation and an indirect subsidiary of the Company (“Merger Sub”), Reach Media Group Holdings, Inc. (“Target”) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as Stockholder Representative for and on behalf of the Target Holders thereunder, Merger Sub merged with and into Target, with Target continuing as the surviving entity and a wholly-owned subsidiary of the Company (the “Merger”);
 
WHEREAS, in connection with the Merger and pursuant to the Merger Agreement, on February 11, 2013, the Company commenced an offer to purchase at a price of $10.00 per share all of the outstanding shares of its Common Stock issued in the Company’s initial public offering (the “Tender Offer”);
 
WHEREAS, pursuant to the Equity Commitment Letter and the Assignment Agreement, the Company agreed to enter into a registration rights agreement with the Stockholder, no later than the date of the consummation of the Tender Offer, providing for demand and piggyback registration rights covering all of the shares of Common Stock owned by the Stockholder; and
 
WHEREAS, the Tender Offer expired on April 5, 2013, and such consummation of the Tender Offer resulted in the valid tender of 4,551,228 shares of Common Stock, which shares were accepted by the Company for purchase and payment therefor.
 
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Stockholder hereby agree as follows:
 
1. Demand Registrations.
 
(a)           Requests for Registration.  At any time, and from time to time, following the date hereof, the Stockholder may request registration under the Securities Act of all or any portion of its Registrable Securities on Form S-3 or any successor form, or if such form is not then available to the Company, Form S-1 (a “Demand Registration”), which may if so requested be a “shelf” registration under Rule 415 under the Securities Act, or if Rule 415 is not available for offers or sales of the Registrable Securities, for such other means of distribution of Registrable Securities as the Stockholder may specify.  For the avoidance of doubt, the Company acknowledges that, as of the date hereof, (i) Form S-3 is not available to the Company and (ii) until Form S-3 is available to the Company, Form S-1 shall be expressly permitted for any Demand Registration hereunder.  A request for a Demand Registration shall specify the number of Registrable Securities requested to be registered.
 
 
 

 
 
(b)           Number; Minimum Registration Amount.  The Stockholder shall be entitled to request (i) up to three (3) Demand Registrations in which the Company shall pay all Registration Expenses and (ii) an unlimited number of Demand Registrations in which the Stockholder shall pay the Registration Expenses (except to the extent that such Registration Expenses relate to the inclusion of any securities included in such registration pursuant to Section (c) below).  The Company shall use its reasonable best efforts to make Demand Registrations on Form S-3 available for the sale of Registrable Securities.  In no event will the Company be required to effect a Demand Registration unless the aggregate market value of the shares proposed to be registered (based on the closing price per share of the Common Stock on the date prior to the applicable Demand Registration notice) is at least $1,000,000.
 
(c)           Priority on Demand Registration.  Except for shares of Common Stock required to be included pursuant to the piggyback registration rights under the Other Registration Rights Agreements[PLEASE PROVIDE COPIES TO US], the Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the Stockholder.  If a Demand Registration relates to an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within the price range acceptable to the Stockholder without adversely affecting the marketability of the offering, the Company shall include in such registration the maximum number of Registrable Securities and such other securities requested to be included which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, with such number to be allocated first, and prior to the inclusion of any securities which are not Registrable Securities, to the Registrable Securities.
 
(d)           Selection of Underwriters.  With respect to a request for registration pursuant to Section 1(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the Stockholder and approved by the Company (which approval will not be unreasonably withheld, conditioned or delayed).
 
2. Piggyback Registrations.
 
(a)           Right to Piggyback.  Whenever the Company proposes to register any of its securities under the Securities Act (other than in connection with registrations on Form S-4 or Form S-8 or any successor form) on any form (other than Form S-4 or Form S-8) that would legally permit the registration of Registrable Securities (a “Piggyback Registration”), the Company shall give prompt written notice (in any event at least thirty (30) Business Days prior to the filing of the registration statement relating to such registration and at least ninety (90) calendar days prior to the expected effective date of such registration statement) to the Stockholder of its intention to effect such a registration and shall include in such registration all Registrable Securities with respect to which the Company has received a written request for inclusion therein within thirty (30) calendar days after the delivery of the Company’s notice.
 
 
 

 
 
(b)           Piggyback Expenses.  The Registration Expenses shall be paid by the Company in all Piggyback Registrations.
 
(c)           Priority on Primary Registrations.  If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company shall include in such registration (i) first, the securities the Company proposes to sell, (ii) second, the securities requested to be included in such registration pursuant to this Agreement and the Other Registration Rights Agreements which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the holders of such securities on the basis of the number of shares owned by each such holder, and (iii) third, other securities requested to be included in such registration.
 
(d)           Priority on Secondary Registrations.  If a Piggyback Registration is an underwritten secondary registration, and the managing underwriters advise such party and the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to such party, the Company shall include in such registration (i) first, the securities requested to be included in such registration pursuant to this Agreement and the Other Registration Rights Agreements which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the holders of such securities on the basis of the number of shares owned by each such holder, and (ii) second, other securities requested to be included in such registration.
 
(e)           Selection of Underwriters.  If any Piggyback Registration is an underwritten primary offering, the selection of investment banker(s) and manager(s) for the offering shall be approved by the Company.
 
3. Other Registrations.  If the Company has previously filed a registration statement pursuant to this Agreement or any Other Registration Rights Agreement, and if such previous registration has not been withdrawn or abandoned, the Company shall not file or cause to be effected (and shall not be required to file or cause to be effected under this Agreement) any other registration of any of its equity securities or securities convertible exchangeable into or exercisable for its equity securities under the Securities Act (except on Form S-4 or Form S-8 or any successor form), whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least ninety (90) days has elapsed from the effective date of such previous registration.
 
 
 

 
 
4. Market Standoff Agreement.  The Company (i) shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the seven (7) days prior to and during the ninety (90)-day period beginning on the effective date of any underwritten public offering of the Company’s equity securities (except as part of such underwritten registration or pursuant to registrations on Form S-4 or Form S-8 or any successor form), unless the underwriters managing the registered public offering otherwise agree, and (ii) shall cause each executive officer and director of the Company and each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for such Common Stock, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144 under the Securities Act) of any such securities during such period (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree.
 
5. Registration Procedures.
 
(a)           Whenever the Stockholder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the Stockholder’s intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
 
(i) use its reasonable best efforts to prepare and file with the Commission a registration statement with respect to such Registrable Securities as soon as reasonably practicable, but in any event within thirty (30) days following the date of a Demand Registration pursuant to Section 1(a), and use its reasonable best efforts to cause such registration statement to become effective as soon as practicable, and in any event within ninety (90) days, following the date of filing such registration statement (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to counsel for the Stockholder copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
 
(ii) respond to written comments received from the Commission upon a review of any registration statement as soon as reasonably practicable, but in any event within ten (10) Business Days. The Company shall submit to the Commission, within two (2) Business Days after the Company learns that no review of a particular registration statement will be made by the staff of the Commission or that the staff of the Commission has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than two (2) Business Days after the submission of such request; and include in any registration statement a “Plan of Distribution” section in a form approved by the Stockholder or its counsel;
 
 
 

 
 
(iii) notify the Stockholder of the effectiveness of each registration statement filed hereunder; by 9:30 a.m. (New York time) on the second (2nd) Business Day following such effectiveness, file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such registration statement; and prepare and file with the Commission such amendments, post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith, and otherwise use its reasonable best efforts, as may be necessary to keep such registration statement continuously effective until the earlier of (A) the date as of which the Stockholder may sell all of the Registrable Securities covered by such registration statement pursuant to Rule 144 under the Securities Act without limitation, restriction or condition thereunder, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the Stockholder, and (B) the date on which all of such Registrable Securities have been disposed of by the Stockholder, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
 
(iv) no later than the effective date of each registration statement filed hereunder, furnish (or cause to be furnished) to the Company’s transfer agent, from time to time, an opinion of the Company’s counsel to facilitate the transfer of the Registrable Securities in the secondary market, including, but not limited to, the removal of any restrictive legends encumbering such Registrable Securities;
 
(v) furnish to the Stockholder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as the Stockholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Stockholder;
 
(vi) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Stockholder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Stockholder (provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
 
(vii) notify the Stockholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, as expeditiously as possible following the happening of such event, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
 
 
 

 
 
(viii) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
 
(ix) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
 
(x) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Stockholder or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares);
 
(xi) make available for inspection by any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
 
(xii) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter 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;
 
(xiii) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction, the Company shall use its reasonable best efforts promptly to obtain the withdrawal of such order;
 
(xiv) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
 
(xv) obtain a cold comfort letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities being sold reasonably request (provided that such Registrable Securities constitute at least 10% of the securities covered by such registration statement); and
 
 
 

 
 
(xvi) to the extent not made by the underwriters in the case of an underwritten offering, make such filings with FINRA, pursuant to FINRA Rule 5110 or otherwise (including providing all required information and paying required fees thereto), as and when requested by the Stockholder, or in the case of an underwritten offering, by any underwriter, and make all other filings and take all other actions reasonably necessary to expedite and facilitate the disposition by the Stockholder of Registrable Securities pursuant to a registration statement, including promptly responding to any comments received from FINRA..
 
(b) The Stockholder shall deliver to the Company such requisite information with respect to itself and its Registrable Securities as the Company may reasonably request for the purposes of completing any prospectus or preliminary prospectus as is necessary to comply with all applicable rules and regulations of the Commission.
 
6. Registration Expenses.
 
(a)           All expenses incident to the Company’s performance of or compliance with this Agreement, including all Commission, stock exchange and FINRA registration and filing fees and exchange listing fees, fees and expenses of compliance with securities or blue sky laws (including reasonable fees, charges and disbursements of counsel to any underwriter incurred in connection with “blue sky” qualifications of the Registrable Securities as may be set forth in any underwriting agreement), printing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company and independent certified public accountants incident to or required by any such registration (including any expenses arising from any “cold comfort” letters or any special audits incident to or required by any registration or qualification), underwriters (excluding discounts and commissions) and other persons retained by the Company, and to the extent the Company determines to obtain such insurance, any liability insurance or other premiums for insurance obtained in connection with any Demand Registration or Piggyback Registration thereon, incidental registration or shelf registration pursuant to the terms of this Agreement, regardless of whether any registration statement filed pursuant to this Agreement is declared effective (all such expenses being herein called “Registration Expenses”), shall be borne as provided in this Agreement, except that the Company shall, in any event pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed.
 
(b)           In connection with any Demand Registration or Piggyback Registration contemplated hereunder, the Company shall reimburse the Stockholder for the reasonable fees and disbursements of one counsel chosen by the Stockholder.
 
(c)           To the extent Registration Expenses are not required to be paid by the Company, the Stockholder shall pay those Registration Expenses allocable to the registration of the Stockholder’s securities so included, and any Registration Expenses not so allocable shall be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered.
 
 
 

 
 
7. Indemnification.
 
(a)           The Company agrees to indemnify and hold harmless, to the fullest extent permitted by applicable law, the Stockholder, its officers, directors, partners, managers, members, investment managers, employees, affiliates, agents and representatives, and each Person who controls the Stockholder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against all losses, claims, damages, liabilities and expenses (including reasonable legal expenses) arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in (or incorporated by reference therein) any registration statement, free writing prospectus, prospectus or preliminary prospectus, filing under any state securities (or blue sky) law or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that such untrue or alleged untrue statement was made in reliance upon and in conformity with any information furnished in writing to the Company by the Stockholder expressly for use therein, (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a registration statement, or (iii) any breach or violation of this Agreement.  In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.
 
(b)           The Stockholder shall, to the fullest extent permitted by applicable law, indemnify and hold harmless the Company, its directors and officers and each Person who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against any losses, claims, damages, liabilities and expenses (including reasonable legal expenses) arising out of or based upon any untrue or alleged untrue statement of material fact contained in (or incorporated by reference therein) the registration statement, free writing prospectus, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements herein not misleading, but only to the extent that such untrue statement or omission was made in reliance upon and in conformity with any information furnished in writing by the Stockholder expressly for use therein; provided that the Stockholder shall be liable under this Section 7(b) (and otherwise) for only that amount as does not in the aggregate exceed the net proceeds to the Stockholder as a result of the sale of Registrable Securities pursuant to the registration statement giving rise to such indemnification obligation.
 
(c)           Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in the Company’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party.  If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed).  An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of the Company a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.  The indemnifying party shall keep the indemnified party reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect to such claim. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a full release from all liability with respect to such claim.
 
 
 

 
 
(d)           The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, partner, manager, member, investment manager, employee, affiliate, agent, representative or controlling Person of such indemnified party and shall survive the transfer of Registrable Securities.  The Company also agrees to make such provisions, as are reasonably requested by any indemnified party, for contribution to such party in the event the Company’s indemnification is unavailable for any reason.  The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the indemnified party against the indemnifying party or others, and (ii) any liabilities to which the indemnifying party may be subject pursuant to the law.
 
(e)           If the indemnification provided for in this Section 7 is unavailable to or is insufficient to hold harmless an indemnified party under the provisions above in respect to any losses, claims, damages or liabilities referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities to the fullest extent permitted by law; provided, however, that: (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Sections 6(a) and 6(b) of this Agreement; (ii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and (iii) contribution by the Stockholder shall be limited in amount to the net amount of proceeds received by the Stockholder from the sale of such Registrable Securities pursuant to the applicable registration statement, less the amount of any damages that the Stockholder has otherwise been required to pay in connection with such sale. The relative fault of the Company on the one hand and of the Stockholder and any other sellers participating in the registration statement on the other shall be determined by reference to, among other things, whether such untrue or alleged omission to state a material fact relates to information supplied by the Company, by the Stockholder or by any other sellers participating in the registration statement and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
 
8. Participation in Underwritten Registrations.  No Person may participate in any registration hereunder which is underwritten unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided that the Stockholder shall not be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding the Stockholder and its intended method of distribution) and shall not be required to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in Section 7 hereof.
 
 
 

 
 
9. Reports under the Exchange Act.  With a view to making available to the Stockholder the benefits of Rule 144 under the Securities Act or any other similar rule or regulation of the Commission that may at any time permit the Stockholder to sell securities of the Company to the public without registration (“Rule 144”), at all times during which there are Registrable Securities outstanding that have not been previously (i) sold to or through a broker or dealer or underwriter in a public distribution or (ii) sold in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof, in the case of either clause (i) or clause (ii) in such a manner that, upon the consummation of such sale, all transfer restrictions and restrictive legends with respect to such shares are removed upon the consummation of such sale, the Company agrees to:
 
(a)           make and keep public information available, as those terms are understood and defined in Rule 144;
 
(b)           file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act, so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and
 
(c)           furnish to the Stockholder so long as the Stockholder owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144 and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Stockholder to sell such securities pursuant to Rule 144 without registration
 
10. Definitions.
 
(a)           “Business Day” means any day on which the principal offices of the Commission in Washington, D.C. are open to accept filings.
 
(b)           Commission” means the U.S. Securities and Exchange Commission, and any governmental body or agency succeeding to the functions thereof.
 
(c)           “Common Stock” means the common stock, par value $0.0001 per share, of the Company, and includes all securities of the Company issued or issuable with respect to such securities by way of a stock split, stock dividend or other recapitalization.
 
 
 

 
 
(d)           “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
 
(e)           “FINRA” means the Financial Industry Regulatory Authority, and any agency or authority succeeding to the functions thereof.
 
(f)           “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof).
 
(g)           “Other Registration Rights Agreements” means (i) the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the Stockholders party thereto; and (ii) the Registration Rights Agreement, dated as of the date hereof, by and among the Company, Special Value Opportunities Fund, LLC, Special Value Expansion Fund, LLC and Tennenbaum Opportunities Partners V, LP.
 
(h)           “Registrable Securities” means (i) the Equity Commitment Shares and any other shares of Common Stock held by the Stockholder, whether on the date of this Agreement or thereafter, and (ii) any other shares of Common Stock issued or issuable with respect to the securities referred to in clause (i) by way of a stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization.  For purposes of this Agreement, a Person shall be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire such Registrable Securities (upon conversion or exercise, in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected.
 
(i)           “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
11. Miscellaneous.
 
(a)           No Inconsistent Agreements.  The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the Stockholder in this Agreement.
 
(b)           Adjustments Affecting Registrable Securities.  The Company shall not take any action, or permit any change to occur, with respect to its securities which would adversely affect in a material respect the ability of the Stockholder to include the Registrable Securities in a registration undertaken pursuant to this Agreement or which would adversely affect the marketability of such Registrable Securities in any such registration (including effecting a stock split or a combination of shares), unless the Company receives the written consent thereto from the Stockholder.
 
(c)           Remedies.  Each party hereto shall be entitled to enforce its rights under any provision of this Agreement specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by applicable law.  The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.
 
 
 

 
 
(d)           Amendments and Waivers.  Except as otherwise provided herein, the provisions of this Agreement may be amended or waived only upon the prior written consent of the Company and the Stockholder.
 
(e)           Successors and Assigns.  All covenants and agreements in this Agreement by and on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.  In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of the Stockholder are also for the benefit of and enforceable by, any subsequent holder of Registrable Securities (as if the Stockholder), but only if such Registrable Securities are transferred in accordance with applicable securities law and if such assignee agrees to become a party to this Agreement and succeed to all of the rights and obligations of the Stockholder under this Agreement with respect to the Registrable Securities acquired by such assignee by delivering to the Company an executed joinder to this Agreement substantially in the form attached hereto.
 
(f)           Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
 
(g)           Counterparts.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties to this Agreement and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart.  Signatures delivered by electronic methods shall have the same effect as signatures delivered in person.
 
(h)           Descriptive Headings.  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
 
(i)           Governing Law; Waiver of Jury Trial.  This Agreement shall be governed by and construed in accordance with the internal laws of Delaware applicable to parties residing in Delaware, without regard applicable principles of conflicts of Law.  Each of the parties hereto irrevocably consents to the exclusive jurisdiction of any court located within New Castle County, Delaware, in connection with any matter based upon or arising out of this Agreement or the matters contemplated hereby and it agrees that process may be served upon it in any manner authorized by the Laws of the State of Delaware for such Persons and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and such process.  EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11(i).
 
 
 

 
 
(j)           Notices.  All notices and other communications hereunder shall be in writing and shall be deemed duly delivered: (i) upon receipt if delivered personally; (ii) three (3) Business Days after being mailed by registered or certified mail, postage prepaid, return receipt requested; (iii) one Business Day after it is sent by commercial overnight courier service; or (iv) upon transmission if sent via facsimile or electronic mail with confirmation of receipt to the parties to this Agreement at the addresses set forth below each of their signatures on the signature pages hereto (or at such other address for a party as shall be specified upon like notice):
 
(k)           Rules of Construction.  The parties to this Agreement agree that they have each been represented by counsel during the negotiation, preparation and execution of this Agreement (or, if executed following the date hereof by counterpart, have been provided with an opportunity to review the Agreement with counsel) and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
 
(l)           Interpretation.  This Agreement shall be construed in accordance with the following rules: (i) the terms defined in this Agreement include the plural as well as the singular; (ii) all references in the Agreement to designated “Sections” and other subdivisions are to the designated sections and other subdivisions of the body of this Agreement; (iii) pronouns of either gender or neuter shall include, as appropriate, the other pronoun forms; (iv) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; and (v) the words “includes” and “including” are not limiting.
 
[Signature Pages Follow]
 
 
 

 
 
IN WITNESS WHEREOF, the parties hereto have executed this Registration Agreement on the date first above written.
 
 
COMPANY:
 
SCG Financial Acquisition Corp.
 

 
By:      _____________________________
Name: _____________________________
Title:   _____________________________
 

 
Address for Notice:
 
___________________________________
___________________________________
___________________________________
___________________________________

 
STOCKHOLDER:
 
DRW COMMODITIES, LLC
 

 
By:      _____________________________
Name: Donald R. Wilson, Jr.
Title:   Manager
 

 
Address for Notice:
 
DRW Commodities, LLC
Attn: Hans Pusch
c/o DRW Holdings
540 W. Madison Street, Suite 2500
Chicago, Illinois 60661
hpusch@DRWHoldings.com

 
 

 
EX-99.13 3 e610945_ex99-13.htm Unassociated Document
Exhibit 99.13
 
COMMON STOCK PURCHASE AGREEMENT
 
COMMON STOCK PURCHASE AGREEMENT, dated as of April 19, 2013 (this “Agreement”), between SCG Financial Acquisition Corp., a Delaware corporation (the “Company”), and DRW Commodities, LLC, a Delaware limited liability company (the “Investor”).
 
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Investor, and the Investor desires to purchase from the Company, shares of the common stock, par value $0.0001 per share (the “Common Stock”), of the Company as more fully described in this Agreement.
 
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Investor agree as follows:
 
ARTICLE I
PURCHASE AND SALE OF SECURITIES
 
1.1           Purchase and Issuance of Shares.
 
(a)           Subject to the terms and conditions set forth in this Agreement, the Investor hereby subscribes for and agrees to purchase from the Company, and the Company hereby agrees to issue and deliver to the Investor, 500,000 shares of Common Stock (the “Shares”) at a purchase price of $10 per share ($5,000,000 in the aggregate) (the “Purchase Price”).
 
(b)           The closing of the purchase and sale of the Shares described in Section 1.1(a) and issuance of the Additional Shares described in Section 1.1(b) (the “Closing”) shall be held on the date hereof (the “Closing Date”) at the offices of Greenberg Traurig, LLP, 77 West Wacker Drive, Suite 3100, Chicago, Illinois 60601 (or at such other time and place upon which the Company and the Investor shall agree).  At the Closing, the Company will deliver, or cause to be delivered, the Shares to the Investor, registered in the name of the Investor (or its designee), against payment of the Purchase Price therefor to the Company by wire transfer to an account designated by the Company.
 
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
 
The Company represents and warrants to the Investor as follows, on and as of the date of this Agreement and the Closing Date:
 
2.1           Organization; Good Standing; Qualification.  The Company is duly incorporated, validly existing and in good standing under the laws of the State of Delaware and is qualified or registered to do business in each jurisdiction in which the nature of its business or operations requires such qualification or registration.
 
 
 

 
 
2.2           Authority; Approvals; No Violation.
 
(a)           The Company has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by the Company and (assuming due authorization, execution and delivery by the Investor) constitutes legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
 
(b)           Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby nor compliance by the Company with any of the terms or provisions hereof will (i) violate any provision of the Company’s certificate of incorporation or bylaws, in each case as amended to date, or (ii) violate any law or order applicable to the Company.
 
2.3           Consents and Approvals.  Except for such filings as may be required to be made by the Company with the Securities and Exchange Commission (the “Commission”) and/or the Nasdaq Stock Market, no consents or approvals of or filings or registrations with any governmental entity, or of or with any third party, are necessary in connection with the execution and delivery by the Company of this Agreement or the consummation by the Company of the transactions contemplated hereby and compliance by the Company with any of the provisions hereof or thereof.
 
2.4           Valid Issuance of the Shares.  The Shares are duly authorized, and when issued and paid for by the Investor in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable.
 
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
 
The Investor represents and warrants to the Company as follows, on and as of the date of this Agreement and the Closing Date:
 
3.1           Organization; Good Standing; Qualification.  The Investor is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and is qualified or registered to do business in each jurisdiction in which the nature of its business or operations requires such qualification or registration.
 
3.2           Authority; Approvals; No Violation.
 
(a)           The Investor has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.  This Agreement has been duly and validly executed and delivered by the Investor and (assuming due authorization, execution and delivery by the Company) constitutes legal, valid and binding obligations of the Investor, enforceable against the Investor in accordance with its terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies.
 
 
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(b)           Except for any filing or disclosures that may be required by the Investor in respect of the transactions contemplated by this Agreement under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), neither the execution and delivery by the Investor of this Agreement nor the consummation by the Investor of the transactions contemplated hereby, nor compliance by the Investor with any of the terms or provisions hereof will (i) violate any provision of the Investor’s certificate of formation, operating agreement or comparable organizational documents, in each case as amended to date or (ii) violate any law or order applicable to the Investor.
 
3.3           Information.  The Investor has been furnished with or has had access to the EDGAR website of the Commission to the Company’s filings made with the Commission during the period from the date that is two years preceding the date hereof through the date hereof, including but not limited to the Third Amended and Restated Offer to Purchase filed as an exhibit to the Amendment No. 6 to Schedule TO filed by the Company with the Commission on April 3, 2013 (including the risk factors contained therein) (collectively, the “SEC Filings”).  In addition, the Investor was afforded (i) the opportunity to ask such questions as the Investor deemed necessary of, and to receive answers from, representatives of the Company concerning the merits and risks of acquiring the Shares; (ii) the right of access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable the Investor to evaluate the Shares; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to acquiring the Shares.
 
3.4           Accredited Investor.  The Investor is an “Accredited Investor,” as such term is defined in Rule 501(a) under the Securities Act.  The Shares acquired by the Investor pursuant to this Agreement are being acquired for Investor’s own account and not with a view to, or intention of, distribution thereof in violation of the Securities Act or any applicable state securities laws.
 
3.5           No Registration; Other Acknowledgements.  The Investor hereby acknowledges and agrees as follows:
 
(a)           The Investor understands that the Shares are not registered under the Securities Act and are only transferable with the consent of the Company, and as such, the Shares may not be sold, transferred or otherwise disposed of without registration under the Securities Act or an exemption therefrom, and that in the absence of either an effective registration statement covering such Shares or an available exemption from registration under the Securities Act, the Shares must be held for so long as is required by the Securities Act and the rules and regulations thereunder.  Notwithstanding the foregoing, the parties will enter into a Registration Rights Agreement pursuant to Section 4.1 hereof.
 
 
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(b)           The Investor has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Shares, and has so evaluated the merits and risks of such investment.  The Investor is able to bear the economic risk of an investment in the Shares and, at the present time, is able to afford a complete loss of such investment.
 
(c)           The Investor is not purchasing the Shares as a result of any “general solicitation” or “general advertising,” as such terms are defined in Regulation D promulgated under the Securities Act, which includes, but is not limited to, any advertisement, article, notice or other communication regarding the Shares published in any newspaper, magazine or similar media or on the internet or broadcast over television, radio or the internet or presented at any seminar or any other general solicitation or general advertisement.
 
(d)           The Investor is not relying on (and will not at any time rely on) any communication (written or oral) of the Company, as investment advice or as a recommendation to purchase the Shares, it being understood that information and explanations related to the terms and conditions of the Shares and the other transaction documents that are described in the SEC Filings shall not be considered investment advice or a recommendation to purchase the Shares.
 
ARTICLE IV
ADDITIONAL AGREEMENTS
 
4.1           Registration Rights.  The Shares, and any other shares of Common Stock issued with respect to the Shares by way of a stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization, shall be deemed to be “Registrable Securities” for all purposes under that certain Registration Rights Agreement, dated as of April 17, 2013, between the Company and the Investor, in the form attached hereto as Exhibit A.
 
4.2           Further Assurances.  Subject to the terms and conditions of this Agreement, each of the parties hereto shall use its reasonable efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws to consummate the transactions contemplated by this Agreement.
 
ARTICLE V
GENERAL PROVISIONS
 
5.1           Delay or Waivers.  No waiver by any party of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any other provisions, condition or requirement hereof nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.  No provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver is sought.
 
5.2           No Partnership or Joint Venture.  Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.
 
 
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5.3           Time of the Essence.  Time shall be of the essence in respect of any dates, times and periods specified in this Agreement and in respect of any dates, times and periods which may be substituted for them in accordance with this Agreement, or by agreement in writing between the parties.  Time shall not be of the essence in respect of any other obligation in this Agreement.
 
5.4           Amendment.  This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto.
 
5.5           Expenses.  All fees and other expenses incurred hereunder shall be paid by the party incurring such expense.
 
5.6           Notices.  All notices and other communications hereunder shall be in writing and shall be deemed given (i) upon personal delivery to the party to be notified; (ii) when received when sent by email or facsimile by the party to be notified, provided, however, that notice given by email or facsimile shall not be effective unless either (a) a duplicate copy of such email or fax notice is promptly given by one of the other methods described in this Section 5.6 or (b) the receiving party delivers a written confirmation of receipt for such notice either by email or fax or any other method described in this Section 5.6; or (iii) when delivered by an express courier (with confirmation of delivery); in each case to the party to be notified at the following address (or at such other address for a party as shall be specified by like notice):
 
(a)           if to the Company to:
 
SCG Financial Acquisition Corp.
615 North Wabash Avenue
Chicago, IL 60611
Facsimile No.:  (312) 784-3966
Attention:  Gregory H. Sachs
Email:  gsachs@sachscapitalgroup.com

With a copy to:

Greenberg Traurig, LLP
77 West Wacker
Suite 2500
Chicago, IL 60601
Facsimile No.:  (312) 456-8435
Attention:  Ameer Ahmad, Esq.
Email:  ahmada@gtlaw.com
 
 
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(b)           if to Investor, to:
 
DRW Commodities, LLC
c/o DRW Holdings
540 W. Madison Street, Suite 2500
Chicago, IL 60661
Facsimile No.:                                                      
Attention:  Hans Pusch
Email:  hpusch@DRWHoldings.com

With a copy to:

Polsinelli Shughart PC
161 N. Clark Street, Suite 4200
Chicago, IL  60601
Facsimile No.:  (312) 893-2005
Attention:  Jay Switzer
Email:  jswitzer@polsinelli.com

5.7           Interpretation.  When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.  References to “$” refer to U.S. Dollars.
 
5.8           Rules of Construction.  The parties to this Agreement agree that they have each been represented by counsel during the negotiation, preparation and execution of this Agreement (or, if executed following the date hereof by counterpart, have been provided with an opportunity to review the Agreement with counsel) and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
 
5.9           Counterparts.  This Agreement may be executed in counterparts, and by facsimile or portable document format (pdf) transmission, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
 
5.10           Entire Agreement; Severability.
 
(a)           This Agreement constitutes the entire agreement among the parties and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof.  Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.
 
(b)           If any term or other provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
 
 
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5.11           Governing Law; Jurisdiction; Waiver of Jury Trial.  This Agreement shall be governed by and construed in accordance with the internal laws of Delaware applicable to parties residing in Delaware, without regard applicable principles of conflicts of law.  Each of the parties hereto irrevocably consents to the exclusive jurisdiction of any court located within New Castle County, Delaware, in connection with any matter based upon or arising out of this Agreement or the matters contemplated hereby and it agrees that process may be served upon it in any manner authorized by the laws of the State of Delaware for such persons and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and such process.  EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.11.
 
5.12           Assignment.
 
(a)           This Agreement is personal to the parties and no party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other party.
 
(b)           Each party confirms it is acting on its own behalf and not for the benefit of any other Person.  This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
 
5.13           Third Party Rights.  A person who is not a party to this Agreement shall have no right to enforce the terms of this Agreement.
 
[Signature Page to Follow]
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.
 
 
 
SCG FINANCIAL ACQUISITION CORP.


By:   _____________________________
Name:
Title:


DRW COMMODITIES, LLC


By:   _____________________________
Name:  Donald R. Wilson, Jr.
Title:    Manager
 
 
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EXHIBIT A
 
REGISTRATION RIGHTS AGREEMENT
 
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of April __, 2013 by and between SCG Financial Acquisition Corp., a Delaware corporation (the “Company”), and DRW Commodities, LLC, a Delaware limited liability company (the “Stockholder”).  Capitalized terms used but not otherwise defined herein have the meanings assigned such terms in Section 10 hereof.
 
WHEREAS, the Stockholder acquired 2,354,450 shares of Common Stock (the “Equity Commitment Shares”) pursuant to an Equity Commitment Letter, dated December 14, 2012, by and between 2012 DOOH Investments LLC and the Company (the “Equity Commitment Letter”), which Equity Commitment Letter was subsequently assigned by 2012 DOOH Investments LLC to the Stockholder pursuant to an Assignment and Assumption Agreement dated January 8, 2013;
 
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as of January 11, 2013 (the “Merger Agreement”), by and among the Company, SCG Financial Merger II Corp., a Delaware corporation and an indirect subsidiary of the Company (“Merger Sub”), Reach Media Group Holdings, Inc. (“Target”) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as Stockholder Representative for and on behalf of the Target Holders thereunder, Merger Sub merged with and into Target, with Target continuing as the surviving entity and a wholly-owned subsidiary of the Company (the “Merger”);
 
WHEREAS, in connection with the Merger and pursuant to the Merger Agreement, on February 11, 2013, the Company commenced an offer to purchase at a price of $10.00 per share all of the outstanding shares of its Common Stock issued in the Company’s initial public offering (the “Tender Offer”);
 
WHEREAS, pursuant to the Equity Commitment Letter and the Assignment Agreement, the Company agreed to enter into a registration rights agreement with the Stockholder, no later than the date of the consummation of the Tender Offer, providing for demand and piggyback registration rights covering all of the shares of Common Stock owned by the Stockholder; and
 
WHEREAS, the Tender Offer expired on April 5, 2013, and such consummation of the Tender Offer resulted in the valid tender of 4,551,228 shares of Common Stock, which shares were accepted by the Company for purchase and payment therefor.
 
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Stockholder hereby agree as follows:
 
1.           Demand Registrations.
 
(a)           Requests for Registration.  At any time, and from time to time, following the date hereof, the Stockholder may request registration under the Securities Act of all or any portion of its Registrable Securities on Form S-3 or any successor form, or if such form is not then available to the Company, Form S-1 (a “Demand Registration”), which may if so requested be a “shelf” registration under Rule 415 under the Securities Act, or if Rule 415 is not available for offers or sales of the Registrable Securities, for such other means of distribution of Registrable Securities as the Stockholder may specify.  For the avoidance of doubt, the Company acknowledges that, as of the date hereof, (i) Form S-3 is not available to the Company and (ii) until Form S-3 is available to the Company, Form S-1 shall be expressly permitted for any Demand Registration hereunder.  A request for a Demand Registration shall specify the number of Registrable Securities requested to be registered.
 
 
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(b)           Number; Minimum Registration Amount.  The Stockholder shall be entitled to request (i) up to three (3) Demand Registrations in which the Company shall pay all Registration Expenses and (ii) an unlimited number of Demand Registrations in which the Stockholder shall pay the Registration Expenses (except to the extent that such Registration Expenses relate to the inclusion of any securities included in such registration pursuant to Section (c) below).  The Company shall use its reasonable best efforts to make Demand Registrations on Form S-3 available for the sale of Registrable Securities.  In no event will the Company be required to effect a Demand Registration unless the aggregate market value of the shares proposed to be registered (based on the closing price per share of the Common Stock on the date prior to the applicable Demand Registration notice) is at least $1,000,000.
 
(c)           Priority on Demand Registration.  Except for shares of Common Stock required to be included pursuant to the piggyback registration rights under the Other Registration Rights Agreements[PLEASE PROVIDE COPIES TO US], the Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the Stockholder.  If a Demand Registration relates to an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within the price range acceptable to the Stockholder without adversely affecting the marketability of the offering, the Company shall include in such registration the maximum number of Registrable Securities and such other securities requested to be included which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, with such number to be allocated first, and prior to the inclusion of any securities which are not Registrable Securities, to the Registrable Securities.
 
(d)           Selection of Underwriters.  With respect to a request for registration pursuant to Section 1(a) which is for an underwritten public offering, the managing underwriter shall be chosen by the Stockholder and approved by the Company (which approval will not be unreasonably withheld, conditioned or delayed).
 
2.           Piggyback Registrations.
 
(a)           Right to Piggyback.  Whenever the Company proposes to register any of its securities under the Securities Act (other than in connection with registrations on Form S-4 or Form S-8 or any successor form) on any form (other than Form S-4 or Form S-8) that would legally permit the registration of Registrable Securities (a “Piggyback Registration”), the Company shall give prompt written notice (in any event at least thirty (30) Business Days prior to the filing of the registration statement relating to such registration and at least ninety (90) calendar days prior to the expected effective date of such registration statement) to the Stockholder of its intention to effect such a registration and shall include in such registration all Registrable Securities with respect to which the Company has received a written request for inclusion therein within thirty (30) calendar days after the delivery of the Company’s notice.
 
 
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(b)           Piggyback Expenses.  The Registration Expenses shall be paid by the Company in all Piggyback Registrations.
 
(c)           Priority on Primary Registrations.  If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company shall include in such registration (i) first, the securities the Company proposes to sell, (ii) second, the securities requested to be included in such registration pursuant to this Agreement and the Other Registration Rights Agreements which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the holders of such securities on the basis of the number of shares owned by each such holder, and (iii) third, other securities requested to be included in such registration.
 
(d)           Priority on Secondary Registrations.  If a Piggyback Registration is an underwritten secondary registration, and the managing underwriters advise such party and the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to such party, the Company shall include in such registration (i) first, the securities requested to be included in such registration pursuant to this Agreement and the Other Registration Rights Agreements which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the holders of such securities on the basis of the number of shares owned by each such holder, and (ii) second, other securities requested to be included in such registration.
 
(e)           Selection of Underwriters.  If any Piggyback Registration is an underwritten primary offering, the selection of investment banker(s) and manager(s) for the offering shall be approved by the Company.
 
3.           Other Registrations.  If the Company has previously filed a registration statement pursuant to this Agreement or any Other Registration Rights Agreement, and if such previous registration has not been withdrawn or abandoned, the Company shall not file or cause to be effected (and shall not be required to file or cause to be effected under this Agreement) any other registration of any of its equity securities or securities convertible exchangeable into or exercisable for its equity securities under the Securities Act (except on Form S-4 or Form S-8 or any successor form), whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least ninety (90) days has elapsed from the effective date of such previous registration.
 
 
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4.           Market Standoff Agreement.  The Company (i) shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities, during the seven (7) days prior to and during the ninety (90)-day period beginning on the effective date of any underwritten public offering of the Company’s equity securities (except as part of such underwritten registration or pursuant to registrations on Form S-4 or Form S-8 or any successor form), unless the underwriters managing the registered public offering otherwise agree, and (ii) shall cause each executive officer and director of the Company and each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for such Common Stock, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144 under the Securities Act) of any such securities during such period (except as part of such underwritten registration, if otherwise permitted), unless the underwriters managing the registered public offering otherwise agree.
 
5.           Registration Procedures.
 
(a)           Whenever the Stockholder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the Stockholder’s intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible:
 
(i)           use its reasonable best efforts to prepare and file with the Commission a registration statement with respect to such Registrable Securities as soon as reasonably practicable, but in any event within thirty (30) days following the date of a Demand Registration pursuant to Section 1(a), and use its reasonable best efforts to cause such registration statement to become effective as soon as practicable, and in any event within ninety (90) days, following the date of filing such registration statement (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to counsel for the Stockholder copies of all such documents proposed to be filed, which documents shall be subject to the review and comment of such counsel);
 
(ii)           respond to written comments received from the Commission upon a review of any registration statement as soon as reasonably practicable, but in any event within ten (10) Business Days. The Company shall submit to the Commission, within two (2) Business Days after the Company learns that no review of a particular registration statement will be made by the staff of the Commission or that the staff of the Commission has no further comments on a particular Registration Statement, as the case may be, a request for acceleration of effectiveness of such Registration Statement to a time and date not later than two (2) Business Days after the submission of such request; and include in any registration statement a “Plan of Distribution” section in a form approved by the Stockholder or its counsel;
 
 
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(iii)           notify the Stockholder of the effectiveness of each registration statement filed hereunder; by 9:30 a.m. (New York time) on the second (2nd) Business Day following such effectiveness, file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such registration statement; and prepare and file with the Commission such amendments, post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith, and otherwise use its reasonable best efforts, as may be necessary to keep such registration statement continuously effective until the earlier of (A) the date as of which the Stockholder may sell all of the Registrable Securities covered by such registration statement pursuant to Rule 144 under the Securities Act without limitation, restriction or condition thereunder, as determined by counsel to the Company pursuant to a written opinion letter to such effect, addressed and reasonably acceptable to the Company’s transfer agent and the Stockholder, and (B) the date on which all of such Registrable Securities have been disposed of by the Stockholder, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement;
 
(iv)           no later than the effective date of each registration statement filed hereunder, furnish (or cause to be furnished) to the Company’s transfer agent, from time to time, an opinion of the Company’s counsel to facilitate the transfer of the Registrable Securities in the secondary market, including, but not limited to, the removal of any restrictive legends encumbering such Registrable Securities;
 
(v)           furnish to the Stockholder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as the Stockholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Stockholder;
 
(vi)           use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Stockholder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Stockholder (provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
 
(vii)           notify the Stockholder at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, as expeditiously as possible following the happening of such event, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
 
 
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(viii)           cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
 
(ix)           provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
 
(x)           enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Stockholder or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares);
 
(xi)           make available for inspection by any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
 
(xii)           otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter 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;
 
(xiii)           in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any Registrable Securities included in such registration statement for sale in any jurisdiction, the Company shall use its reasonable best efforts promptly to obtain the withdrawal of such order;
 
(xiv)           use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
 
(xv)           obtain a cold comfort letter from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the holders of a majority of the Registrable Securities being sold reasonably request (provided that such Registrable Securities constitute at least 10% of the securities covered by such registration statement); and
 
 
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(xvi)           to the extent not made by the underwriters in the case of an underwritten offering, make such filings with FINRA, pursuant to FINRA Rule 5110 or otherwise (including providing all required information and paying required fees thereto), as and when requested by the Stockholder, or in the case of an underwritten offering, by any underwriter, and make all other filings and take all other actions reasonably necessary to expedite and facilitate the disposition by the Stockholder of Registrable Securities pursuant to a registration statement, including promptly responding to any comments received from FINRA..
 
(b)           The Stockholder shall deliver to the Company such requisite information with respect to itself and its Registrable Securities as the Company may reasonably request for the purposes of completing any prospectus or preliminary prospectus as is necessary to comply with all applicable rules and regulations of the Commission.
 
6.           Registration Expenses.
 
(a)           All expenses incident to the Company’s performance of or compliance with this Agreement, including all Commission, stock exchange and FINRA registration and filing fees and exchange listing fees, fees and expenses of compliance with securities or blue sky laws (including reasonable fees, charges and disbursements of counsel to any underwriter incurred in connection with “blue sky” qualifications of the Registrable Securities as may be set forth in any underwriting agreement), printing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company and independent certified public accountants incident to or required by any such registration (including any expenses arising from any “cold comfort” letters or any special audits incident to or required by any registration or qualification), underwriters (excluding discounts and commissions) and other persons retained by the Company, and to the extent the Company determines to obtain such insurance, any liability insurance or other premiums for insurance obtained in connection with any Demand Registration or Piggyback Registration thereon, incidental registration or shelf registration pursuant to the terms of this Agreement, regardless of whether any registration statement filed pursuant to this Agreement is declared effective (all such expenses being herein called “Registration Expenses”), shall be borne as provided in this Agreement, except that the Company shall, in any event pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed.
 
(b)           In connection with any Demand Registration or Piggyback Registration contemplated hereunder, the Company shall reimburse the Stockholder for the reasonable fees and disbursements of one counsel chosen by the Stockholder.
 
(c)           To the extent Registration Expenses are not required to be paid by the Company, the Stockholder shall pay those Registration Expenses allocable to the registration of the Stockholder’s securities so included, and any Registration Expenses not so allocable shall be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered.
 
 
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7.           Indemnification.
 
(a)           The Company agrees to indemnify and hold harmless, to the fullest extent permitted by applicable law, the Stockholder, its officers, directors, partners, managers, members, investment managers, employees, affiliates, agents and representatives, and each Person who controls the Stockholder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against all losses, claims, damages, liabilities and expenses (including reasonable legal expenses) arising out of or based upon (i) any untrue or alleged untrue statement of material fact contained in (or incorporated by reference therein) any registration statement, free writing prospectus, prospectus or preliminary prospectus, filing under any state securities (or blue sky) law or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that such untrue or alleged untrue statement was made in reliance upon and in conformity with any information furnished in writing to the Company by the Stockholder expressly for use therein, (ii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other law, including any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a registration statement, or (iii) any breach or violation of this Agreement.  In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers and directors and each Person who controls such underwriters (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the holders of Registrable Securities.
 
(b)           The Stockholder shall, to the fullest extent permitted by applicable law, indemnify and hold harmless the Company, its directors and officers and each Person who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against any losses, claims, damages, liabilities and expenses (including reasonable legal expenses) arising out of or based upon any untrue or alleged untrue statement of material fact contained in (or incorporated by reference therein) the registration statement, free writing prospectus, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements herein not misleading, but only to the extent that such untrue statement or omission was made in reliance upon and in conformity with any information furnished in writing by the Stockholder expressly for use therein; provided that the Stockholder shall be liable under this Section 7(b) (and otherwise) for only that amount as does not in the aggregate exceed the net proceeds to the Stockholder as a result of the sale of Registrable Securities pursuant to the registration statement giving rise to such indemnification obligation.
 
(c)           Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in the Company’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party.  If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed).  An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of the Company a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim.  The indemnifying party shall keep the indemnified party reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect to such claim. No indemnifying party shall, without the prior written consent of the indemnified party, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a full release from all liability with respect to such claim.
 
 
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(d)           The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, partner, manager, member, investment manager, employee, affiliate, agent, representative or controlling Person of such indemnified party and shall survive the transfer of Registrable Securities.  The Company also agrees to make such provisions, as are reasonably requested by any indemnified party, for contribution to such party in the event the Company’s indemnification is unavailable for any reason.  The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the indemnified party against the indemnifying party or others, and (ii) any liabilities to which the indemnifying party may be subject pursuant to the law.
 
(e)           If the indemnification provided for in this Section 7 is unavailable to or is insufficient to hold harmless an indemnified party under the provisions above in respect to any losses, claims, damages or liabilities referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities to the fullest extent permitted by law; provided, however, that: (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Sections 6(a) and 6(b) of this Agreement; (ii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection with such sale shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation; and (iii) contribution by the Stockholder shall be limited in amount to the net amount of proceeds received by the Stockholder from the sale of such Registrable Securities pursuant to the applicable registration statement, less the amount of any damages that the Stockholder has otherwise been required to pay in connection with such sale. The relative fault of the Company on the one hand and of the Stockholder and any other sellers participating in the registration statement on the other shall be determined by reference to, among other things, whether such untrue or alleged omission to state a material fact relates to information supplied by the Company, by the Stockholder or by any other sellers participating in the registration statement and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
 
8.           Participation in Underwritten Registrations.  No Person may participate in any registration hereunder which is underwritten unless such Person (i) agrees to sell such Person’s securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements; provided that the Stockholder shall not be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding the Stockholder and its intended method of distribution) and shall not be required to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in Section 7 hereof.
 
 
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9.           Reports under the Exchange Act.  With a view to making available to the Stockholder the benefits of Rule 144 under the Securities Act or any other similar rule or regulation of the Commission that may at any time permit the Stockholder to sell securities of the Company to the public without registration (“Rule 144”), at all times during which there are Registrable Securities outstanding that have not been previously (i) sold to or through a broker or dealer or underwriter in a public distribution or (ii) sold in a transaction exempt from the registration and prospectus delivery requirements of the Securities Act under Section 4(1) thereof, in the case of either clause (i) or clause (ii) in such a manner that, upon the consummation of such sale, all transfer restrictions and restrictive legends with respect to such shares are removed upon the consummation of such sale, the Company agrees to:
 
(a)           make and keep public information available, as those terms are understood and defined in Rule 144;
 
(b)           file with the Commission in a timely manner all reports and other documents required of the Company under the Exchange Act, so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and
 
(c)           furnish to the Stockholder so long as the Stockholder owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting requirements of Rule 144 and the Exchange Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii) such other information as may be reasonably requested to permit the Stockholder to sell such securities pursuant to Rule 144 without registration
 
10.           Definitions.
 
(a)           “Business Day” means any day on which the principal offices of the Commission in Washington, D.C. are open to accept filings.
 
(b)           Commission” means the U.S. Securities and Exchange Commission, and any governmental body or agency succeeding to the functions thereof.
 
(c)           “Common Stock” means the common stock, par value $0.0001 per share, of the Company, and includes all securities of the Company issued or issuable with respect to such securities by way of a stock split, stock dividend or other recapitalization.
 
 
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(d)           “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
 
(e)           “FINRA” means the Financial Industry Regulatory Authority, and any agency or authority succeeding to the functions thereof.
 
(f)           “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity (or any department, agency or political subdivision thereof).
 
(g)           “Other Registration Rights Agreements” means (i) the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the Stockholders party thereto; and (ii) the Registration Rights Agreement, dated as of the date hereof, by and among the Company, Special Value Opportunities Fund, LLC, Special Value Expansion Fund, LLC and Tennenbaum Opportunities Partners V, LP.
 
(h)           “Registrable Securities” means (i) the Equity Commitment Shares and any other shares of Common Stock held by the Stockholder, whether on the date of this Agreement or thereafter, and (ii) any other shares of Common Stock issued or issuable with respect to the securities referred to in clause (i) by way of a stock dividend or stock split or in connection with an exchange or combination of shares, recapitalization, merger, consolidation or other reorganization.  For purposes of this Agreement, a Person shall be deemed to be a holder of Registrable Securities whenever such Person has the right to acquire such Registrable Securities (upon conversion or exercise, in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected.
 
(i)           “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
 
11.           Miscellaneous.
 
(a)           No Inconsistent Agreements.  The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the Stockholder in this Agreement.
 
(b)           Adjustments Affecting Registrable Securities.  The Company shall not take any action, or permit any change to occur, with respect to its securities which would adversely affect in a material respect the ability of the Stockholder to include the Registrable Securities in a registration undertaken pursuant to this Agreement or which would adversely affect the marketability of such Registrable Securities in any such registration (including effecting a stock split or a combination of shares), unless the Company receives the written consent thereto from the Stockholder.
 
(c)           Remedies.  Each party hereto shall be entitled to enforce its rights under any provision of this Agreement specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by applicable law.  The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or other security) for specific performance and for other injunctive relief in order to enforce or prevent violation of the provisions of this Agreement.
 
 
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(d)           Amendments and Waivers.  Except as otherwise provided herein, the provisions of this Agreement may be amended or waived only upon the prior written consent of the Company and the Stockholder.
 
(e)           Successors and Assigns.  All covenants and agreements in this Agreement by and on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.  In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of the Stockholder are also for the benefit of and enforceable by, any subsequent holder of Registrable Securities (as if the Stockholder), but only if such Registrable Securities are transferred in accordance with applicable securities law and if such assignee agrees to become a party to this Agreement and succeed to all of the rights and obligations of the Stockholder under this Agreement with respect to the Registrable Securities acquired by such assignee by delivering to the Company an executed joinder to this Agreement substantially in the form attached hereto.
 
(f)           Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
 
(g)           Counterparts.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties to this Agreement and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart.  Signatures delivered by electronic methods shall have the same effect as signatures delivered in person.
 
(h)           Descriptive Headings.  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
 
(i)           Governing Law; Waiver of Jury Trial.  This Agreement shall be governed by and construed in accordance with the internal laws of Delaware applicable to parties residing in Delaware, without regard applicable principles of conflicts of Law.  Each of the parties hereto irrevocably consents to the exclusive jurisdiction of any court located within New Castle County, Delaware, in connection with any matter based upon or arising out of this Agreement or the matters contemplated hereby and it agrees that process may be served upon it in any manner authorized by the Laws of the State of Delaware for such Persons and waives and covenants not to assert or plead any objection which it might otherwise have to such jurisdiction and such process.  EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11(i).
 
 
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(j)           Notices.  All notices and other communications hereunder shall be in writing and shall be deemed duly delivered: (i) upon receipt if delivered personally; (ii) three (3) Business Days after being mailed by registered or certified mail, postage prepaid, return receipt requested; (iii) one Business Day after it is sent by commercial overnight courier service; or (iv) upon transmission if sent via facsimile or electronic mail with confirmation of receipt to the parties to this Agreement at the addresses set forth below each of their signatures on the signature pages hereto (or at such other address for a party as shall be specified upon like notice):
 
(k)           Rules of Construction.  The parties to this Agreement agree that they have each been represented by counsel during the negotiation, preparation and execution of this Agreement (or, if executed following the date hereof by counterpart, have been provided with an opportunity to review the Agreement with counsel) and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
 
(l)           Interpretation.  This Agreement shall be construed in accordance with the following rules: (i) the terms defined in this Agreement include the plural as well as the singular; (ii) all references in the Agreement to designated “Sections” and other subdivisions are to the designated sections and other subdivisions of the body of this Agreement; (iii) pronouns of either gender or neuter shall include, as appropriate, the other pronoun forms; (iv) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision; and (v) the words “includes” and “including” are not limiting.
 
[Signature Pages Follow]
 
 
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IN WITNESS WHEREOF, the parties hereto have executed this Registration Agreement on the date first above written.
 
 
COMPANY:
 
SCG Financial Acquisition Corp.
 
By:      _____________________________
Name: _____________________________
Title:   _____________________________
 
 
Address for Notice:
___________________________________
___________________________________
___________________________________
___________________________________

 
STOCKHOLDER:
 
DRW COMMODITIES, LLC
 
By:      _____________________________
Name: Donald R. Wilson, Jr.
Title:   Manager
 
Address for Notice:
 
DRW Commodities, LLC
Attn: Hans Pusch
c/o DRW Holdings
540 W. Madison Street, Suite 2500
Chicago, Illinois 60661
hpusch@DRWHoldings.com
 

 

 
EX-99.14 4 e610945_ex99-14.htm Unassociated Document
Exhibit 99.14
 
ASSIGNMENT AND ASSSUMPTION AGREEMENT
 
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Agreement”), dated as of April 19, 2013, is entered into by and between 2012 DOOH Investments LLC, an Illinois limited liability company (“DOOH”), and DRW Commodities, LLC, a Delaware limited liability company (“DRW”).
 
W I T N E S S E T H:
 
WHEREAS, DRW is a party to that certain Common Stock Purchase Agreement (the “Purchase Agreement”), dated as of the date hereof, between DRW and SCG Financial Acquisition Corp., a Delaware corporation (the “Issuer”), pursuant to which, among other things, DRW agreed to purchase an aggregate of 500,000 shares (the “Shares”) of the common stock, par value $0.0001 per share, of the Issuer upon the terms and conditions set forth therein; and
 
WHEREAS, DOOH (rather than DRW) intended to purchase the Shares, and accordingly, DRW desires to assign its rights and obligations arising under Purchase Agreement, and DOOH desires to accept such assignment and is willing to assume such obligations upon the terms set forth herein.
 
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, DOOH and DRW agree as follows:
 
1.           Assignment and Assumption.  DRW hereby transfers, assigns and conveys to DOOH all of its rights, interests and obligations arising under the Purchase Agreement, including, without limitation, the registration rights set forth in Section 4.1 of the Purchase Agreement.  DOOH hereby accepts the foregoing assignment and hereby assumes and agrees to perform DOOH’s obligations arising under the Purchase Agreement.
 
2.           Successors and Assigns. The rights and obligations of the parties hereto shall inure to the benefit of, and be binding and enforceable upon, their respective successors, assigns and transferees.
 
3.           Governing Law.  This Agreement shall be governed by and interpreted under the laws of the State of Illinois applicable to contracts made and to be performed therein without giving effect to its principles of conflict of laws.
 
4.           Amendments.  This Agreement may be amended, modified or terminated only by a document in writing and executed by each of the parties hereto.
 
5.           Further Assurances.  Each party hereto shall execute and deliver all such further instruments and documents as may reasonably be requested by the other party in order to carry out fully the intent and accomplish the purposes of this Agreement.
 
6.           Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall constitute an original. This Agreement, and any amendments, to the extent signed and delivered by means of a facsimile machine or e-mail of a PDF file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
 
 
 

 
 
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement as of the day and year first above written.
 
 
 
2012 DOOH INVESTMENTS LLC

 
By: DOOH Investment Manager LLC,
       its sole manager

By:  ___________________________
Name: Donald R. Wilson, Jr.
Title: Manager
 
DRW COMMODITIES, LLC
 
By:  ___________________________
Name: Donald R. Wilson, Jr.
Title: Manager
 
The undersigned hereby acknowledges the foregoing assignment and assumption, that the Purchase Price (as defined in the Purchase Agreement) has heretofore been paid in full by DOOH and that DOOH is entitled to all of DRW’s rights under the Purchase Agreement, including, without limitation, the registration rights set forth in Section 4.1 of the Purchase Agreement.
 
SCG FINANCIAL ACQUISITION CORP.
 

 
By:  ___________________________
Name:
Title:
Dated:
 

 

 
[Signature page to Assignment and Assumption Agreement]