WARRANT CLARIFICATION AGREEMENT
This
Warrant Clarification Agreement (this “Agreement”), dated January 30, 2008, is
to the Warrant Agreement, dated as of April 13, 2006 (the “Warrant Agreement”),
by and between Jaguar Acquisition Corporation, a Delaware corporation, with
offices at 0 Xxxxx Xxxxxx, Xxxxx 0000, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
XX
00000 (“Company”), and Continental Stock Transfer & Trust Company, a New
York corporation, with offices at 00 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(“Warrant Agent”).
WHEREAS,
as
a
result of certain questions that have arisen regarding the accounting treatment
applicable to the Warrants, the parties hereto deem it necessary and desirable
to amend the Warrant Agreement to clarify that the registered holders do
not
have the right to receive a net cash settlement in the event the Company
does
not maintain a current prospectus relating to the common stock issuable upon
exercise of the warrants at the time such warrants are exercisable.
NOW,
THEREFORE,
in
consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree
to amend the Warrant Agreement as set forth herein.
1. Warrant
Agreements.
The
undersigned hereby agree that the Warrant Agreement is hereby amended by
adding
the following last sentence to Section 3.3.2:
“In
no
event will the registered holder of a Warrant be entitled to receive a net-cash
settlement or other consideration in lieu of physical settlement in shares
of
Common Stock if the Common Stock underlying the Warrants is not covered by
an
effective registration statement.”
2. Miscellaneous.
a. Governing
Law; Jurisdiction.
The
validity, interpretation, and performance of this Agreement shall be governed
in
all respects by the laws of the State of New York, without giving effect
to
conflict of laws. The Company hereby agrees that any action, proceeding or
claim
against it arising out of or relating in any way to this Agreement shall
be
brought and enforced in the courts of the State of New York or the United
States
District Court for the Southern District of New York, and irrevocably submits
to
such jurisdiction, which jurisdiction shall be exclusive. The Company hereby
waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenience forum. Any such process or summons to be served
upon
the Company may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it
in
care of the address set forth above or such other address as the undersigned
shall furnish in writing to the other. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any action,
proceeding or claim.
b. Responsibility
of the Warrant Agent.
The
Warrant Agent has no responsibility for the correctness of the recitals above
which shall be taken as statements of the Company, and makes no representations
as to the validity, sufficiency or enforceability of this
Agreement.
c. Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and assigns.
d. Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among
them.
Except as set forth in this Agreement, provisions of the original Warrant
Agreement which are not inconsistent with this Agreement shall remain in
full
force and effect. This Agreement may be executed in counterparts.
e. Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in
lieu of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as a part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable
IN
WITNESS WHEREOF, the parties hereto have executed this Warrant Clarification
Agreement as of the date first written above.
|
JAGUAR ACQUISTION CORPORATION
|
||
|
/s/
Xxxxxxxx Xxxxxx
|
||
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Title:
|
Chief Executive Officer
|
|
| CONTINENTAL STOCK TRANSFER & | ||
| TRUST COMPANY | ||
|
By:
|
/s/
Xxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxx
|
|
|
Title:
|
Chairman
|
|
