WARRANT CLARIFICATION AGREEMENT
Exhibit 10.51
This Warrant Clarification Agreement (this “Agreement”), dated as of September 30,
2007, between 180 Connect Inc., a Delaware corporation (f/k/a Ad.Venture Partners, Inc., a Delaware
corporation) (the “Company”) and Continental Stock Transfer & Trust Company, a New York Corporation
(“Continental Stock Transfer & Trust Company”), is to the Warrant Agreement, dated as of August 25,
2005 (the “Warrant Agreement”), by and between Ad.Venture Partners, Inc. and Continental
Stock Transfer & Trust Company.
WHEREAS, Section 3.3(ii) of the Warrant Agreement provides that the Company shall not be
obligated to deliver any securities pursuant to the exercise of a warrant unless a registration
statement under the Securities Act of 1933, as amended (the “Securities Act”), with respect
to the common stock is effective.
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, and never had 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 Agreement.
(a) For the avoidance of doubt, the Warrant Agreement is hereby amended by adding the
following as Section 3.5 to the Warrant Agreement:
“Furthermore, if the Company is unable to deliver any securities pursuant to the
exercise of a Warrant as a result of the foregoing situations, the Company will have no
obligation, under any circumstance, to pay such registered holder any cash or other
consideration or otherwise “net cash settle” the Warrant.”
(b) The Warrant Agreement is hereby further amended by deleting Section 9.2 in its entirety
and replacing it with the following:
“9.2. Notices. Any notice, statement or demand authorized by this Warrant
Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on
the Company shall be sufficiently given when so delivered if by hand or overnight delivery
or if sent by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
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Any notice, statement or demand authorized by this Agreement to be given or made by the
holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently
given when so delivered if by hand or overnight delivery or if sent by certified mail or
private courier service within five days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with the Company),
as follows:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn : Compliance Department
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn : Compliance Department
with a copy in each case to:
XxXxxxxxx Will & Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn : Xxxx Xxxxxxxx, Esq.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn : Xxxx Xxxxxxxx, Esq.
2. Miscellaneous.
(a) Governing Law. The validity, interpretation, and performance of this Agreement
and of the Warrants shall be governed in all respects by the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the application of the
substantive laws of another jurisdiction. 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 inconvenient 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 at the address set forth in Section 9.2 of the
Warrant Agreement. Such mailing shall be deemed personal service and shall be legal and binding
upon the Company in any action, proceeding or claim.
(b) 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.
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(c) 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 Warrant Agreement which are not inconsistent with
this Agreement shall remain in full force and effect. This Agreement may be executed in
counterparts.
(d) 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 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.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant Clarification Agreement as
of the date first written above.
| 180 CONNECT INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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