UNIT PURCHASE OPTION CLARIFICATION AGREEMENT
This
Unit
Purchase Option Clarification Agreement (this “Agreement”), dated January 30,
2008, is to amend the Unit Purchase Option, dated as of April 13, 2006 (the
“Option”), issued by Jaguar Acquisition Corporation, a Delaware corporation,
with offices at 0 Xxxxx Xxxxxx, Xxxxx 0000, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx,
XX 00000 (“Company”), to EarlyBirdCapital, Inc., with offices at 000 Xxxxxxx
Xxxxxx, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“Option Holder”).
WHEREAS,
as a result of certain questions that have arisen regarding the accounting
treatment applicable to the Option, the parties hereto deem it necessary and
desirable to amend the Option to clarify that the Option Holder does not have
the right to receive a net cash settlement in the event the Company does not
maintain a current prospectus relating to the units, common stock and warrants
issuable upon exercise of the Option at the time such Option is
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 Option as set forth herein.
1. Option.
The undersigned hereby agree that the Option is hereby amended by adding the
following as Section 2.1.1 to the Option:
“2.1.1
No
Exercise of Purchase Option if a Registration Statement is not Effective.
Notwithstanding anything herein to the contrary, the Company shall not be
obligated to deliver any securities pursuant to the exercise of this Purchase
Option unless (i) a registration statement under the Act with respect to the
Units, Warrants and Common Stock issuable upon such exercise is effective,
or
(ii) in the opinion of counsel to the Company or counsel to the Holder
reasonably satisfactory to the Company, the exercise of this Purchase Option
is
exempt from the registration requirements of the Act and such securities are
qualified for sale or exempt from qualification under applicable securities
laws
of the states or other jurisdictions in which the registered holders reside.
This Purchase Option may not be exercised by, or securities issued to, any
registered holder in any state in which such exercise or issuance would be
unlawful. In no event will the Holder be entitled to receive a net-cash
settlement or other consideration in lieu of physical settlement in securities
if the securities underlying this Purchase Option 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 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 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. 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.
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 original
Option 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 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
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IN
WITNESS WHEREOF, the parties hereto have executed this Unit Purchase Option
Clarification Agreement as of the date first written above.
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JAGUAR
ACQUISTION CORPORATION
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By:
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/s/
Xxxxxxxx Xxxxxx
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Name:
Xxxxxxxx Xxxxxx
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Title:
Chief Executive Officer
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EARLYBIRDCAPITAL,
INC.
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
Chairman
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