Unassociated Document


    EXHIBIT
      10.9

      
        
          
            
               

              
                
                  
                    SECURITIES
                      ESCROW AGREEMENT

                     

                    SECURITIES
                      ESCROW AGREEMENT, dated as of _____________, 2008 (“Agreement”), by and among
                      SYMPHONY ACQUISITION CORP., a Delaware corporation (“Company”), ERIC S.
                      ROSENFLED, ROSENFELD 1991 CHILDREN’S TRUST, ARNAUD AJDLER, DAVID D. SGRO,
                      GREGORY R. MONAHAN, MARK S. HAUSER, DAVID WALKE and JOEL M.
                      GREENBLATT
                      (collectively “Initial Stockholders”) and AMERICAN STOCK TRANSFER & TRUST
                      COMPANY, a New York corporation (“Escrow Agent”).

                     

                    WHEREAS,
                      the Company has entered into an Underwriting Agreement, dated
                      __________, 2008
                      (“Underwriting Agreement”), with EarlyBirdCapital, Inc. (“EBC”) acting as
                      representative of the several underwriters (collectively, the
“Underwriters”),
                      pursuant to which, among other matters, the Underwriters have
                      agreed to purchase
                      6,125,000 units (“Units”) of the Company, plus up to an additional 918,750 Units
                      pursuant to an over-allotment option granted to the Underwriters.
                      Each Unit
                      consists of one share of the Company’s common stock, par value $.0001 per share
                      (“Common Stock”), and one warrant (“Warrant”) to purchase one share of Common
                      Stock, all as more fully described in the Company’s final Prospectus, dated
                      _________, 2008 (“Prospectus”) comprising part of the Company’s Registration
                      Statement on Form S-1 (File No. 333-151646) under the Securities
                      Act of 1933, as
                      amended (“Registration Statement”), declared effective on ________, 2008
                      (“Effective Date”).

                     

                    WHEREAS,
                      the Initial Stockholders have agreed as a condition of the
                      sale of the Units to
                      deposit their Units of the Company, as set forth opposite their
                      respective names
                      in Exhibit A attached hereto (collectively “Escrow Securities”), in escrow as
                      hereinafter provided.

                     

                    WHEREAS,
                      the Company and the Initial Stockholders desire that the Escrow
                      Agent accept the
                      Escrow Securities, in escrow, to be held and disbursed as hereinafter
                      provided.

                     

                    IT
                      IS
                      AGREED:

                     

                    1. Appointment
                      of Escrow Agent.
                      The
                      Company and the Initial Stockholders hereby appoint the Escrow
                      Agent to act in
                      accordance with and subject to the terms of this Agreement
                      and the Escrow Agent
                      hereby accepts such appointment and agrees to act in accordance
                      with and subject
                      to such terms.

                     

                    2. Deposit
                      of Escrow Securities.
                      On or
                      before the Effective Date, each of the Initial Stockholders
                      shall deliver to the
                      Escrow Agent certificates representing his respective Escrow
                      Securities, to be
                      held and disbursed subject to the terms and conditions of this
                      Agreement. Each
                      Initial Stockholder acknowledges that the certificate representing
                      his Escrow
                      Securities is legended to reflect the deposit of such Escrow
                      Securities under
                      this Agreement.

                     

                    
                      
                        
                        

                      

                      
                        
                        

                        
                          

                        

                      

                      
                        
                        

                      

                    

                    3. Disbursement
                      of the Escrow Securities.
                      

                     

                    3.1 The
                      Escrow Agent shall hold the Escrow Securities until the date
                      that is one year
                      after the consummation of a Business Combination (as defined
                      in the Company’s
                      amended and restated certificate of incorporation) (“Escrow Period”), on which
                      date it shall, upon written instructions from each Initial
                      Stockholder, disburse
                      each of the Initial Stockholder’s Escrow Securities (and any applicable stock
                      power) to such Initial Stockholder; provided, however, that
                      if the Escrow Agent
                      is notified by the Company pursuant to Section 6.7 hereof that the Company
                      is being liquidated at any time during the Escrow Period, then
                      the Escrow Agent
                      shall promptly destroy the certificates representing the Escrow
                      Securities held
                      pursuant to this agreement; provided, further, that if the
                      Underwriters do not
                      exercise their over-allotment option to purchase an additional
                      918,750 Units of
                      the Company (as described in the Prospectus) in full, the Initial
                      Stockholders
                      agree that no later than by the end of the 45-day period in
                      which the
                      Underwriters may exercise their over-allotment option, the
                      Company shall give
                      the Escrow Agent written notice with respect to the amount,
                      if any, of the
                      over-allotment that was exercised by the Underwriters and,
                      upon such notice, the
                      Escrow Agent shall return to the Company for cancellation,
                      at no cost, the
                      number of Escrow Securities and Escrow Warrants held by each
                      Initial Stockholder
                      determined by multiplying (a) the product of (i) 229,687, multiplied
                      by (ii) a fraction, (x) the numerator of which is the number of Escrow
                      Securities held by each Initial Stockholder, and (y) the denominator of
                      which is the total number of Escrow Securities, by (b) a fraction,
                      (i) the numerator of which is 918,750 minus the number of Units
                      purchased
                      by the Underwriters upon the exercise of their over-allotment
                      option, and
                      (ii) the denominator of which is 918,750; provided further, however,
                      that
                      if, after the Company consummates a Business Combination (as
                      such term is
                      defined in the Company’s amended and restated certificate of incorporation),
                      (i) it (or the surviving entity) subsequently consummates a liquidation,
                      merger, stock exchange or other similar transaction which results
                      in all of the
                      stockholders of such entity having the right to exchange their
                      shares of Common
                      Stock for cash, securities or other property or (ii) the last sales price
                      of the Common Stock equals or exceeds $11.50 per share for
                      any 20 trading days
                      within any 30-trading day period after the consummation of
                      the Business
                      Combination, then the Escrow Agent will, upon receipt of a
                      certificate, executed
                      by the Chairman of the Board, President or other authorized
                      officer of the
                      Company, in form reasonably acceptable to the Escrow Agent,
                      that such
                      transaction is then being consummated or such conditions have
                      been achieved, as
                      applicable, release the Escrow Securities to the Initial Stockholders.
                      The
                      Escrow Agent shall have no further duties hereunder after the
                      disbursement or
                      destruction of the Escrow Securities in accordance with this
                      Section 3.

                     

                    3.2 If
                      the
                      Company consummates a Business Combination in which more than
                      a total of 35% of
                      the shares of Common Stock sold in the IPO are either (i) purchased
                      by the
                      Company prior to the consummation of such Business Combination
                      or (ii)
voted
                      by
                      the holders of such shares against a proposed Business Combination
                      with a
                      corresponding exercise of conversion rights and such Business
                      Combination is
                      consummated
                      (each as
                      described more fully in the Prospectus), the Escrow Agent shall,
                      upon receipt of
                      written instructions from the Company, return to the Company
                      for cancellation
                      the number of Escrow Securities which results in the Initial
                      Stockholders
                      collectively owning no more than 27.9% of the Company’s outstanding shares of
                      Common Stock immediately prior to the consummation of such
                      Business Combination
                      (without giving effect to any shares of Common Stock that might
                      be issued in
                      connection with the Business Combination). Such instructions
                      shall set forth
                      both the aggregate number of shares of Common Stock that were
                      purchased or are
                      being converted into cash and the number of Escrow Securities
                      to be delivered to
                      the Company for cancellation.

                     

                    4. Rights
                      of Initial Stockholders in Escrow Securities.
                      

                     

                    4.1 Voting
                      Rights as a Stockholder.
                      Subject
                      to the terms of the Insider Letter described in Section 4.4
                      hereof and except as
                      herein provided, the Initial Stockholders shall retain all
                      of their rights as
                      stockholders of the Company during the Escrow Period, including,
                      without
                      limitation, the right to vote such shares.

                     

                    
                      
                        
                        

                      

                      
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                    4.2 Dividends
                      and Other Distributions in Respect of the Escrow Securities.
                      During
                      the Escrow Period, all dividends payable in cash with respect
                      to the Escrow
                      Securities shall be paid to the Initial Stockholders, but all
                      dividends payable
                      in stock or other non-cash property (“Non-Cash Dividends”) shall be delivered to
                      the Escrow Agent to hold in accordance with the terms hereof.
                      As used herein,
                      the term “Escrow Securities” shall be deemed to include the Non-Cash Dividends
                      distributed thereon, if any.

                     

                    4.3 Restrictions
                      on Transfer.
                      During
                      the escrow period, the only permitted transfers of the Escrow
                      Securities will be
                      (A) pledges to secure obligations incurred in connection with
                      purchases of the
                      Company’s securities or (B) transfers (i) to the Company’s officers and
                      directors, (ii) to an entity’s members upon its liquidation, (iii) by bona fide
                      gift to a member of an Initial Stockholder’s immediate family or to a trust, the
                      beneficiary of which is an Initial Stockholder or a member
                      of an Initial
                      Stockholder’s immediate family for estate planning purposes, (iv) by virtue
                      of
                      the laws of descent and distribution upon death of any Initial
                      Stockholder or
                      (v) pursuant to a qualified domestic relations order; provided,
                      however, that
                      such permissive transfers may be implemented only upon the
                      respective
                      transferee’s written agreement to be bound by the terms and conditions
                      of this
                      Agreement and of the Insider Letter signed by the Initial Stockholder
                      transferring the Escrow Securities. 

                     

                    4.4 Insider
                      Letters.
                      Each of
                      the Initial Stockholders has executed a letter agreement with
                      EBC and the
                      Company, dated as indicated on Exhibit A hereto, and which
                      is filed as an
                      exhibit to the Registration Statement (“Insider Letter”), respecting the rights
                      and obligations of such Initial Stockholder in certain events,
                      including but not
                      limited to the liquidation of the Company.

                     

                    5. Concerning
                      the Escrow Agent.

                     

                    5.1 Good
                      Faith Reliance.
                      The
                      Escrow Agent shall not be liable for any action taken or omitted
                      by it in good
                      faith and in the exercise of its own best judgment, and may
                      rely conclusively
                      and shall be protected in acting upon any order, notice, demand,
                      certificate,
                      opinion or advice of counsel (including counsel chosen by the
                      Escrow Agent),
                      statement, instrument, report or other paper or document (not
                      only as to its due
                      execution and the validity and effectiveness of its provisions,
                      but also as to
                      the truth and acceptability of any information therein contained)
                      which is
                      believed by the Escrow Agent to be genuine and to be signed
                      or presented by the
                      proper person or persons. The Escrow Agent shall not be bound
                      by any notice or
                      demand, or any waiver, modification, termination or rescission
                      of this Agreement
                      unless evidenced by a writing delivered to the Escrow Agent
                      signed by the proper
                      party or parties and, if the duties or rights of the Escrow
                      Agent are affected,
                      unless it shall have given its prior written consent thereto.


                     

                    5.2 Indemnification.
                      The
                      Escrow Agent shall be indemnified and held harmless by the
                      Company from and
                      against any expenses, including counsel fees and disbursements,
                      or loss suffered
                      by the Escrow Agent in connection with any action, suit or
                      other proceeding
                      involving any claim which in any way, directly or indirectly,
                      arises out of or
                      relates to this Agreement, the services of the Escrow Agent
                      hereunder, or the
                      Escrow Securities held by it hereunder, other than expenses
                      or losses arising
                      from the gross negligence or willful misconduct of the Escrow
                      Agent. Promptly
                      after the receipt by the Escrow Agent of notice of any demand
                      or claim or the
                      commencement of any action, suit or proceeding, the Escrow
                      Agent shall notify
                      the other parties hereto in writing. In the event of the receipt
                      of such notice,
                      the Escrow Agent, in its sole discretion, may commence an action
                      in the nature
                      of interpleader in an appropriate court to determine ownership
                      or disposition of
                      the Escrow Securities or it may deposit the Escrow Securities
                      with the clerk of
                      any appropriate court or it may retain the Escrow Securities
                      pending receipt of
                      a final, non appealable order of a court having jurisdiction
                      over all of the
                      parties hereto directing to whom and under what circumstances
                      the Escrow
                      Securities are to be disbursed and delivered. The provisions
                      of this Section 5.2
                      shall survive in the event the Escrow Agent resigns or is discharged
                      pursuant to
                      Sections 5.5 or 5.6 below.

                     

                    
                      
                        
                        

                      

                      
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                    5.3 Compensation.
                      The
                      Escrow Agent shall be entitled to reasonable compensation from
                      the Company for
                      all services rendered by it hereunder. The Escrow Agent shall
                      also be entitled
                      to reimbursement from the Company for all reasonable expenses
                      paid or incurred
                      by it in the administration of its duties hereunder including,
                      but not limited
                      to, all counsel, advisors’ and agents’ fees and disbursements and all taxes or
                      other governmental charges.

                     

                    5.4 Further
                      Assurances.
                      From
                      time to time on and after the date hereof, the Company and
                      the Initial
                      Stockholders shall deliver or cause to be delivered to the
                      Escrow Agent such
                      further documents and instruments and shall do or cause to
                      be done such further
                      acts as the Escrow Agent shall reasonably request to carry
                      out more effectively
                      the provisions and purposes of this Agreement, to evidence
                      compliance herewith
                      or to assure itself that it is protected in acting hereunder.

                     

                    5.5 Resignation.
                      The
                      Escrow Agent may resign at any time and be discharged from
                      its duties as escrow
                      agent hereunder by its giving the other parties hereto written
                      notice and such
                      resignation shall become effective as hereinafter provided.
                      Such resignation
                      shall become effective at such time that the Escrow Agent shall
                      turn over to a
                      successor escrow agent appointed by the Company, the Escrow
                      Securities held
                      hereunder. If no new escrow agent is so appointed within the
                      60 day period
                      following the giving of such notice of resignation, the Escrow
                      Agent may deposit
                      the Escrow Securities with any court it reasonably deems
                      appropriate.

                     

                    5.6 Discharge
                      of Escrow Agent.
                      The
                      Escrow Agent shall resign and be discharged from its duties
                      as escrow agent
                      hereunder if so requested in writing at any time by the other
                      parties hereto,
                      jointly, provided, however, that such resignation shall become
                      effective only
                      upon acceptance of appointment by a successor escrow agent
                      as provided in
                      Section 5.5.

                     

                    5.7 Liability.
                      Notwithstanding anything herein to the contrary, the Escrow
                      Agent shall not be
                      relieved from liability hereunder for its own gross negligence
                      or its own
                      willful misconduct.

                     

                    5.8 Waiver.
                      The
                      Escrow Agent hereby waives any and all right, title, interest
                      or claim of any
                      kind (each, a “Claim”) in or to any distribution of the Trust Account (as
                      defined in the Investment Management Trust Agreement dated
                      as of the date hereof
                      by and between the Company and the Escrow Agent, as trustee
                      thereunder) and
                      hereby agrees not to seek recourse, reimbursement, payment
                      or satisfaction for
                      any Claim against the Trust Account for any reason whatsoever.


                     

                    6. Miscellaneous.

                     

                    6.1 Governing
                      Law.
                      This
                      Agreement shall for all purposes be deemed to be made under
                      and shall be
                      construed in accordance with the laws of the State of New York.

                     

                    6.2 Third
                      Party Beneficiaries.
                      Each of
                      the Initial Stockholders hereby acknowledges that the Underwriters
                      are third
                      party beneficiaries of this Agreement and this Agreement may
                      not be modified or
                      changed without the prior written consent of EBC. 

                     

                    6.3 Entire
                      Agreement.
                      This
                      Agreement contains the entire agreement of the parties hereto
                      with respect to
                      the subject matter hereof and, except as expressly provided
                      herein, may not be
                      changed or modified except by an instrument in writing signed
                      by the party to
                      the charged. 

                     

                    6.4 Headings.
                      The
                      headings contained in this Agreement are for reference purposes
                      only and shall
                      not affect in any way the meaning or interpretation thereof.

                     

                    6.5 Binding
                      Effect.
                      This
                      Agreement shall be binding upon and inure to the benefit of
                      the respective
                      parties hereto and their legal representatives, successors
                      and
                      assigns.

                     

                    
                      
                        
                        

                      

                      
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                    6.6 Notices.
                      Any
                      notice or other communication required or which may be given
                      hereunder shall be
                      in writing and either be delivered personally or be mailed,
                      certified or
                      registered mail, or by private national courier service, return
                      receipt
                      requested, postage prepaid, and shall be deemed given when
                      so delivered
                      personally or, if mailed, two days after the date of mailing,
                      as
                      follows:

                     

                    If
                      to the
                      Company, to: 

                     

                    Symphony
                      Acquisition Corp.

                    825
                      Third
                      Avenue, 40th Floor

                    New
                      York,
                      New York 10022

                    Attn: Eric
                      S.
                      Rosenfeld

                     

                    If
                      to a
                      Stockholder, to his address set forth in Exhibit A.

                     

                    and
                      if to
                      the Escrow Agent, to:

                     

                    American
                      Stock Transfer & Trust Company

                    59
                      Maiden
                      Lane

                    New
                      York,
                      New York 10038

                    Attn: 

                     

                    A
                      copy of
                      any notice sent hereunder shall be sent to:

                     

                    Graubard
                      Miller

                    The
                      Chrysler Building

                    405
                      Lexington Avenue

                    New
                      York,
                      New York 10174

                    Attn:
                       David
                      Alan Miller, Esq.

                     

                    and:

                     

                    EarlyBirdCapital,
                      Inc. 

                    275
                      Madison Avenue

                    New
                      York,
                      New York 10016

                    Attn:
                       Steven
                      Levine

                     

                    and:

                     

                    Greenberg
                      Traurig, LLP

                    Met
                      Life
                      Building

                    200
                      Park
                      Avenue

                    New
                      York,
                      New York 10166

                    Attn: Robert
                      H.
                      Cohen, Esq.

                     

                    The
                      parties may change the persons and addresses to which the notices
                      or other
                      communications are to be sent by giving written notice to any
                      such change in the
                      manner provided herein for giving notice.

                     

                    6.7 Liquidation
                      of the Company.
                      The
                      Company shall give the Escrow Agent written notification of
                      the liquidation and
                      dissolution of the Company in the event that the Company fails
                      to consummate a
                      Business Combination within the time period(s) specified in
                      the
                      Prospectus.

                     

                    
                      
                        
                        

                      

                      
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                    6.8 Counterparts.
                      This
                      Agreement may be executed in several counterparts, each one
                      of which may be
                      delivered by facsimile transmission and each of which shall
                      constitute an
                      original, and together shall constitute but one instrument.


                     

                    [REMAINDER
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                    WITNESS
                      the execution of this Agreement as of the date first above
                      written.

                     

                    
                      	 	 	 
	 	SYMPHONY
                              ACQUISITION CORP.
	 
 	 
 	 
 
	 	By:  	 
	 	
                              
                                

                              

                              Name:

                              Title:

                            


                    

                    
                       

                      
                        	 	 	 
	 	
                                INITIAL
                                  STOCKHOLDERS:

                                 

                                ROSENFELD
                                  1991 CHILDREN’S TRUST

                              
	 
 	 
 	 
 
	 	By:  	 
	 	
                                
                                  

                                

                                Name:

                                Title:

                              
	 	 
	 	 
	 	
                                
ERIC
                                S. ROSENFLED
	 	 
	
                              	 
	 	
                                
ARNAUD
                                AJDLER
	 	 
	 	 
	 	
                                
DAVID
                                D. SGRO
	 	 
	 	 
	 	
                                
MARK
                                S. HAUSER
	 	 
	 	 
	 	
                                
DAVID
                                WALKE
	 	 
	 	 
	 	
                                
JOEL
                                M. GREENBLATT 
	 	 


                      

                       

                      
                        
                          
                          

                        

                        
                          7

                          
                            

                          

                        

                        
                          
                          

                        

                      

                    

                    
                    

                    
                      	 	 	 
	 	AMERICAN
                              STOCK TRANSFER & TRUST 
COMPANY
	 
 	 
 	 
 
	 	By:  	 
	 	
                              

                              Name:

                              Title:

                            


                    

                    


                    
                      
                        
                        

                      

                      
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                    EXHIBIT
                      A

                     

                    
                      	
                              Name
                                and Address of 

                              Initial
                                Stockholder 

                            	 	
                              Number

                              of
                                Escrow Securities

                            	 	
                              Unit

                              Certificate
                                Number

                            	 	
                              Date
                                of

                              Insider
                                Letter

                            
	 	 	 	 	 	 	 
	
                              Eric
                                S. Rosenfeld

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              1,046,249

                            	 	
                              1

                            	 	
                              _________,
                                2008

                            
	 	 	 	 	 	 	 
	
                              Rosenfeld
                                1991 Children’s Trust

                              c/o
                                Eric S. Rosenfeld

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              250,000

                            	 	
                              2

                            	 	
                              _________,
                                2008

                            
	 	 	 	 	 	 	 
	
                              Arnaud
                                Ajdler

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              176,094

                            	 	
                              3

                            	 	
                              _________,
                                2008

                            
	 	 	 	 	 	 	 
	
                              David
                                D. Sgro

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              88,047

                            	 	
                              4

                            	 	
                              _________,
                                2008

                            
	 	 	 	 	 	 	 
	
                              Gregory
                                R. Monahan

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              88,047

                            	 	
                              5

                            	 	
                              _________,
                                2008

                            
	 	 	 	 	 	 	 
	
                              Mark
                                S. Hauser

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              37,500

                            	 	
                              6

                            	 	
                              _________,
                                2008

                            
	 	 	 	 	 	 	 
	
                              David
                                Walke

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              37,500

                            	 	
                              7

                            	 	
                              _________,
                                2008

                            
	 	 	 	 	 	 	 
	
                              Joel
                                M. Greenblatt

                              825
                                Third Avenue, 40th Floor

                              New
                                York, New York 10022

                            	 	
                              37,500

                            	 	
                              8

                            	 	
                              _________,
                                2008