WARRANT AGREEMENT
Exhibit
4.3
Agreement
made as of _______, 2006 between Crossfire Capital Corporation, a Delaware
corporation, with offices at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
(the "Company"), and American Stock Transfer & Trust Company, a New York
corporation, with offices at 00 Xxxxxx Xxxx, Xxx Xxxx, XX (the "Warrant
Agent").
WHEREAS,
the Company is engaged in a public offering ("Public Offering") of Units
("Units") and, in connection therewith, has determined to issue and deliver
up
to (i) 23,000,000 Warrants, which include 3,000,000 Warrants subject to the
underwriters' over-allotment option (the "Public Warrants") to the public
investors, (ii) 2,000,000 Warrants to Xxxxxx Xxxxxx (the "Xxxxxx Warrants")
and
(iii) 1,000,000 Warrants to Xxxxxx, Xxxxx Xxxxx, Incorporated ("FBW") or its
designees (the "Representative's Warrants" and, together with the Public
Warrants and the Xxxxxx Warrants, the "Warrants"). Each Warrant evidences the
right of the holder thereof to purchase one share of common stock, par value
$.0001 per share, of the Company's Common Stock (the "Common Stock") for the
Warrant Price described herein, subject to adjustment as described herein;
and
WHEREAS,
the Company has filed with the Securities and Exchange Commission a Registration
Statement, No. 333-133447 on Form S-1 (the "Registration Statement") for the
registration, under the Securities Act of 1933, as amended (the "Act") of,
among
other securities, the Warrants and the Common Stock issuable upon exercise
of
the Warrants; and
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and
the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the Warrants;
and
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants,
the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and
the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make
the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of
this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
1
Appointment
of Warrant Agent.
The
Company hereby appoints the Warrant Agent to act as agent for the Company for
the Warrants, and the Warrant Agent hereby accepts such appointment and agrees
to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2 Warrants.
2.1 Form
of Warrant.
Each
Warrant shall be issued in registered form only, shall be in substantially
the
form of Exhibit A hereto, the provisions of which are incorporated herein and
shall be signed by, or bear the facsimile signature of, the President or Chief
Executive Officer and Chief Financial Officer, Treasurer, Secretary or Assistant
Secretary of the Company and shall bear a facsimile of the Company's seal.
In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect
as
if he or she had not ceased to be such at the date of issuance.
1
2.2 Effect
of Countersignature.
Unless
and until countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised by the holder
thereof.
2.3 Registration.
2.3.1 Warrant
Register.
The
Warrant Agent shall maintain books (the "Warrant Register") for the registration
of original issuance and the registration of transfer of the Warrants. Upon
the
initial issuance of the Warrants, the Warrant Agent shall issue and register
the
Warrants in the names of the respective holders thereof in such denominations
and otherwise in accordance with instructions delivered to the Warrant Agent
by
the Company.
2.3.2 Registered
Holder.
Prior
to due presentment for registration of transfer of any Warrant, the Company
and
the Warrant Agent may deem and treat the person in whose name such Warrant
shall
be registered upon the Warrant Register (the "Registered Holder"), as the
absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate made by anyone other than the Company or the Warrant Agent), for
the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4 Detachability
of Warrants.
The
securities comprising the Units will not be separately transferable until 90
days after the effective date of the Registration Statement unless FBW informs
the Company of its decision to allow earlier separate trading, but in no event
will FBW allow separate trading of the securities comprising the Units until
the
Company files a Current Report on Form 8-K which includes an audited balance
sheet reflecting the receipt by the Company of the gross proceeds of the Public
Offering including the proceeds received by the Company from the exercise of
the
underwriters' over-allotment option, if the over-allotment option is exercised
prior to the filing of the Form 8-K.
3 Terms
and Exercise of Warrants
3.1 Warrant
Price.
Each
Public Warrant shall, when countersigned by the Warrant Agent, entitle the
registered holder thereof, subject to the provisions of such Public Warrant
and
of this Warrant Agreement, to purchase from the Company the number of shares
of
Common Stock stated therein, at the price of $5.00 per whole share, subject
to
the adjustments provided in Section 4 hereof. The term "Warrant Price" as used
in this Warrant Agreement refers to the price per share at which Common Stock
may be purchased at the time a Warrant is exercised. The Company in its sole
discretion may lower the Warrant Price at any time prior to the Expiration
Date;
provided, however, that any such price reduction shall be in effect for a period
of not less than ten (10) business days, and that any change in the Warrant
Price must apply equally to all of the Warrants. The Xxxxxx Warrants shall
have
the same terms and be in the same form as the Public Warrants. The
Representative's Warrants shall have the same terms and be in the same form
as
the Public Warrants, except that the Representative's Warrants shall have an
exercise price of $6.25 per whole share, subject to adjustment as provided
in
Section 4 hereof, and shall be entitled to Cashless Exercise Rights as provided
in Section 3.4 hereof.
2
3.2 Duration
of Warrants.
A
Warrant may be exercised only during the period (the "Exercise Period")
commencing on the later of (i) the consummation by the Company of a merger,
capital stock exchange, asset acquisition or other similar business combination
("Business Combination") (as described more fully in the Registration Statement)
and (ii) one year from the effective date of the Registration Statement, and
terminating at 5:00 p.m., New York City time on the earlier to occur of (i)
____________, 2011 or (ii) the date fixed for redemption of the Warrants as
provided in Section 6 of this Agreement (the "Expiration Date"). Except with
respect to the right to receive the Redemption Price (as set forth in Section
6
hereunder), each Warrant not exercised on or before the Expiration Date shall
become void, and all rights thereunder and all rights in respect thereof under
this Agreement shall cease at the close of business on the Expiration Date.
The
Company in its sole discretion may extend the duration of any Warrant by
delaying the Expiration Date; provided, however, that any extension of the
duration of any Warrant must apply equally to all of the Warrants.
3.3 Exercise
of Warrants.
3.3.1 Payment.
Subject
to the provisions of the Warrant and this Warrant Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the registered holder
thereof by surrendering it, at the office of the Warrant Agent, or at the office
of its successor as Warrant Agent, in the Borough of Manhattan, City and State
of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full, in lawful money of the United States, in cash,
good certified check or good bank draft payable to the order of the Company
(or
as otherwise agreed to by the Company), the Warrant Price for each full share
of
Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, the exchange of the
Warrant for the Common Stock, and the issuance of the Common Stock.
3.3.2 Issuance
of Certificates.
As soon
as practicable after the exercise of any Warrant and the clearance of the funds
in payment of the Warrant Price, the Company shall issue to the registered
holder of such Warrant a certificate or certificates for the number of full
shares of Common Stock to which he , she or it is entitled, registered in such
name or names as may be directed by him, her or it, and if such Warrant shall
not have been exercised in full, a new countersigned Warrant for the number
of
shares of Common Stock as to which such Warrant shall not have been exercised.
Notwithstanding the foregoing, the Company shall not be obligated to deliver
any
securities pursuant to the exercise of a Warrant unless a registration statement
under the Act with respect to the Common Stock is effective. Warrants may not
be
exercised by, or securities issued to, any registered holder in any state in
which such exercise would be unlawful. In no event shall the Company be
obligated to settle any Warrant, in whole or in part, for cash in the event
that
the Company is unable to deliver registered shares of Common Stock.
3
3.3.3 Valid
Issuance.
All
shares of Common Stock issued upon the proper exercise of a Warrant and full
payment of the Warrant Price in conformity with this Agreement shall be validly
issued, fully paid and non-assessable.
3.3.4 Date
of Issuance.
Each
person in whose name any such certificate for shares of Common Stock is issued
shall for all purposes be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment of the
Warrant Price was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall
be
deemed to have become the holder of such shares at the close of business on
the
next succeeding date on which the stock transfer books are open.
3.4 Cashless
Exercise.
3.4.1 Determination
of Amount.
In lieu
of the payment of the Warrant Price multiplied by the number of shares of Common
Stock for which Representative's Warrants are exercisable under Section 3.3.1,
and in lieu of being entitled to receive shares in the manner required by
Section 3.3.2, a registered holder of Representative's Warrants shall have
the
right (but not the obligation) to convert any exercisable but unexercised
portion of said Representative's Warrants into shares of Common Stock ("Cashless
Exercise Right") as follows: Upon exercise of the Cashless Exercise Right,
the
Company shall deliver to the registered holder (without payment by the holder
of
any of the Warrant Price in cash) that number of shares of Common Stock equal
to
the quotient obtained by dividing (x) the "Value" (as defined below) of the
portion of the Representative's Warrants being converted by (y) the "Current
Market Price" (as defined below) of a share of Common Stock. The "Value" of
the
portion of the Representative's Warrants being converted shall equal the
remainder derived from subtracting (a) (i) the Warrant Price multiplied by
(ii)
the number of shares of Common Stock underlying the portion of the
Representative's Warrants being converted, from (b) (i) the Current Market
Price
of a share of Common Stock multiplied by (ii) the number of shares of Common
Stock underlying the portion of the Representative's Warrants being converted.
4
The
"Current Market Price" of a share of Common Stock on any day shall mean
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(i)
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if
the shares are listed on a national securities exchange or quoted
on the
Nasdaq Global Market, Nasdaq Capital Market or the NASD OTC Bulletin
Board
(or any successor such as the Bulletin Board Exchange), the average
closing price of a share for the thirty (30) trading days immediately
preceding the date of determination of the Current Market Price in
the
principal trading market for the shares as reported by the exchange,
Nasdaq or the NASD, as the case may be;
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(ii)
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if
the shares are not listed on a national securities exchange or quoted
on
the Nasdaq Global Market, Nasdaq Capital Market or the NASD OTC Bulletin
Board (or such successor), but are traded in the residual over-the-counter
market, the closing bid price for a share on the last trading day
preceding the date in question for which such quotations are reported
by
the Pink Sheets, LLC or similar publisher of such quotations; and
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(iii)
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if
the fair market value of the shares cannot be determined pursuant
to
clause (i) or (ii) above, such price as the Board of Directors of
the
Company shall determine, in good
faith.
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3.5 Mechanics
of Cashless Exercise. The
Cashless Exercise Right may be exercised by the registered holder of any
Representative's Warrants on any business day during the Exercise Period by
delivering the Representative's Warrants with the duly executed exercise form
attached hereto with the cashless exercise section completed to the Warrant
Agent, exercising the Cashless Exercise Right and specifying the total number
of
shares the holder will purchase pursuant to such Cashless Exercise
Right.
4
Adjustments.
4.1 Stock
Dividends or Split-Ups.
If
after the date hereof, and subject to the provisions of Section 4.6 below,
the
number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split-up of shares of Common Stock,
or other similar event, then, on the effective date of such stock dividend,
split-up or similar event, the number of shares of Common Stock issuable on
exercise of each Warrant shall be increased in proportion to such increase
in
outstanding shares of Common Stock.
4.2 Aggregation
of Shares.
If
after the date hereof, and subject to the provisions of Section 4.6, the number
of outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of Common Stock
or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number
of shares of Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common
Stock.
4.3 Adjustments
in Warrant Price.
Whenever the number of shares of Common Stock purchasable upon the exercise
of
the Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price
immediately prior to such adjustment by a fraction (x) the numerator of which
shall be the number of shares of Common Stock purchasable upon the exercise
of
the Warrants immediately prior to such adjustment, and (y) the denominator
of
which shall be the number of shares of Common Stock so purchasable immediately
thereafter.
5
4.4 Replacement
of Securities Upon Reorganization, Etc.
In case
of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Section 4.1 or 4.2 hereof or that solely
affects the par value of such shares of Common Stock), or in the case of any
merger or consolidation of the Company with or into another corporation (other
than a consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or reorganization
of the outstanding shares of Common Stock), or in the case of any sale or
conveyance to another corporation or entity of the assets or other property
of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to purchase and receive, upon the basis and upon the terms and conditions
specified in the Warrants and in lieu of the shares of Common Stock of the
Company immediately theretofore purchasable and receivable upon the exercise
of
the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares
of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of
this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers.
4.5 Notices
of Changes in Warrant.
Upon
every adjustment of the Warrant Price or the number of shares issuable upon
exercise of a Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3 or 4.4, then, in any such event, the Company shall give written
notice to the Warrant holder, at the last address set forth for such holder
in
the warrant register, of the record date or the effective date of the event.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such event.
4.6 No
Fractional Shares.
Notwithstanding any provision contained in this Warrant Agreement to the
contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4,
the
holder of any Warrant would be entitled, upon the exercise of such Warrant,
to
receive a fractional interest in a share, the Company shall, upon such exercise,
round up to the nearest whole number the number of the shares of Common Stock
to
be issued to the Warrant holder.
6
4.7 Form
of Warrant.
The
form of Warrant need not be changed because of any adjustment pursuant to this
Section 4, and Warrants issued after such adjustment may state the same Warrant
Price and the same number of shares as is stated in the Warrants initially
issued pursuant to this Agreement. However, the Company may at any time in
its
sole discretion make any change in the form of Warrant that the Company may
deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for
an
outstanding Warrant or otherwise, may be in the form as so changed.
4.8 Notice
of Certain Transactions.
In the
event that the Company shall propose to (a) offer the holders of its Common
Stock rights to subscribe for or to purchase any securities convertible into
shares of Common Stock or any other securities, rights or options, (b) issue
any
rights, options or warrants entitling the holders of Common Stock to subscribe
for shares of Common Stock or (c) make a tender offer or exchange offer with
respect to the Common Stock, the Company shall send to the Holders a notice
of
such proposed action or offer. Such notice shall be mailed to the registered
holders at their addresses as they appear in the warrant Register, which shall
specify the record date for the purposes of such dividend, distribution or
rights, or the date such issuance or event is to take place and the date of
participation therein by the holders of Common Stock, if any such date is to
be
fixed, and shall briefly indicate the effect of such action on the Common Stock
and on the number and kind of any other shares of stock and on other property,
if any, issuable upon exercise of each Warrant and the Warrant Price after
giving effect to any adjustment pursuant to Article 4 which would be required
as
a result of such action. Such notice shall be given as promptly as practicable
after the Board has determined to take any such action and (x) in the case
of
any action covered by clause (a) or (b) above, if practicable, at least 10
days
prior to the record date for determining the holders of the Common Stock for
purposes of such action or (y) in the case of any other such action, if
practicable, at least 20 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of Common Stock,
whichever shall be the earlier.
4.9 Other
Events.
If any
event occurs as to which the foregoing provisions of this Article 4 are not
strictly applicable or, if strictly applicable, would not, in the good faith
judgment of the Board, fairly and adequately protect the purchase rights of
the
registered holders of the Warrants in accordance with the essential intent
and
principles of such provisions, then the Board shall make such adjustments in
the
application of such provisions, in accordance with such essential intent and
principles, as shall be reasonably necessary, in the good faith opinion of
the
Board, to protect such purchase rights as aforesaid.
5
Transfer
and Exchange of Warrants.
5.1 Registration
of Transfer.
The
Warrant Agent shall register the transfer, from time to time, of any outstanding
Warrant upon the Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and the
old
Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled
shall
be delivered by the Warrant Agent to the Company from time to time upon request.
7
5.2 Procedure
for Surrender of Warrants.
Warrants may be surrendered to the Warrant Agent, together with a written
request for exchange or transfer, and thereupon the Warrant Agent shall issue
in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant surrendered for
transfer bears a restrictive legend, the Warrant Agent shall not cancel such
Warrant and issue new Warrants in exchange therefor until the Warrant Agent
has
received an opinion of counsel for the Company stating that such transfer may
be
made and indicating whether the new Warrants must also bear a restrictive
legend.
5.3 Fractional
Warrants.
The
Warrant Agent shall not be required to effect any registration of transfer
or
exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.4 Service
Charges.
No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.5 Warrant
Execution and Countersignature.
The
Warrant Agent is hereby authorized to countersign and to deliver, in accordance
with the terms of this Agreement, the Warrants required to be issued pursuant
to
the provisions of this Section 5, and the Company, whenever required by the
Warrant Agent, will supply the Warrant Agent with Warrants duly executed on
behalf of the Company for such purpose.
6
Redemption.
6.1 Redemption.
Subject
to Section 6.4 hereof, not less than all of the outstanding Warrants may be
redeemed, at the option of the Company, at any time after they become
exercisable and prior to their expiration, at the office of the Warrant Agent,
upon the notice referred to in Section 6.2., at the price of $.01 per Warrant
("Redemption Price"), provided that the last sales price of the Common Stock
has
been at least $8.50 per share, on each of twenty (20) trading days within any
thirty (30) trading day period ending on the third business day prior to the
date on which notice of redemption is given. The provisions of this Section
6.1
may not be modified, amended or deleted without the prior written consent of
FBW.
6.2 Date
Fixed for, and Notice of, Redemption.
In the
event the Company shall elect to redeem all of the Warrants, the Company shall
fix a date for the redemption. Notice of redemption shall be mailed by first
class mail, postage prepaid, by the Company not less than 30 days prior to
the
date fixed for redemption to the registered holders of the Warrants to be
redeemed at their last addresses as they shall appear on the registration books.
Any notice mailed in the manner herein provided shall be conclusively presumed
to have been duly given whether or not the registered holder received such
notice.
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6.3 Exercise
After Notice of Redemption.
The
Warrants may be exercised in accordance with Section 3 of this Agreement at
any
time after notice of redemption shall have been given by the Company pursuant
to
Section 6.2. hereof and prior to the time and date fixed for redemption. On
and
after the redemption date, the record holder of the Warrants shall have no
further rights except to receive, upon surrender of the Warrants, the Redemption
Price.
6.4 Outstanding
Warrants Only.
The
Company understands that the redemption rights provided for by this Section
6
apply only to outstanding Warrants. To the extent a person holds rights to
purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the
Warrants issued upon such exercise provided that the criteria for redemption
is
met. The provisions of this Section 6.4 may not be modified, amended or deleted
without the prior written consent of FBW.
7
Other
Provisions Relating To Rights of Holders of Warrants.
7.1 No
Rights As Stockholder.
A
Warrant does not entitle the registered holder thereof to any of the rights
of a
stockholder of the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights to vote or
to
consent or to receive notice as stockholders in respect of the meetings of
stockholders or the election of directors of the Company or any other matter.
7.2 Lost,
Stolen, Mutilated, or Destroyed Warrants.
If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include
the
surrender thereof), issue a new Warrant of like denomination, tenor, and date
as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant
shall
constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time
enforceable by anyone.
7.3 Reservation
of Common Stock.
The
Company shall at all times reserve and keep available a number of its authorized
but unissued shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4 Registration
of Common Stock.
The
Company agrees that prior to the commencement of the Exercise Period, it shall
file with the Securities and Exchange Commission a post-effective amendment
to
the Registration Statement, or a new registration statement, for the
registration, under the Act, of, and it shall take such action as is necessary
to qualify for sale, in those states in which the Warrants were initially
offered by the Company, the Common Stock issuable upon exercise of the Warrants.
In either case, the Company will use its best efforts to cause the same to
become effective and to maintain the effectiveness of such registration
statement until the expiration of the Warrants in accordance with the provisions
of this Agreement (except in connection with a going private transaction).
Notwithstanding
the foregoing, the failure or inability of the Company to cause to become
effective or maintain the effectiveness of such registration statement shall
not
in any way prevent the expiration of the Warrants as provided in Section 3.2
of
this Agreement. The provisions of this Section 7.4 may not be modified,
amended or deleted without the prior written consent of FBW.
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8
Concerning
the Warrant Agent and Other Matters.
8.1 Payment
of Taxes.
The
Company will from time to time promptly pay all taxes and charges that may
be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2 Resignation,
Consolidation, or Merger of Warrant Agent.
8.2.1 Appointment
of Successor Warrant Agent.
The
Warrant Agent, or any successor to it hereafter appointed, may resign its duties
and be discharged from all further duties and liabilities hereunder after giving
sixty (60) days' notice in writing to the Company. If the office of the Warrant
Agent becomes vacant by resignation or incapacity to act or otherwise, the
Company shall appoint in writing a successor Warrant Agent in place of the
Warrant Agent. If the Company shall fail to make such appointment within a
period of 30 days after it has been notified in writing of such resignation
or
incapacity by the Warrant Agent or by the holder of any Warrant (who shall,
with
such notice, submit his Warrant for inspection by the Company), then the holder
of any Warrant may apply to the Supreme Court of the State of New York for
the
County of New York for the appointment of a successor Warrant Agent at the
Company's cost. Any successor Warrant Agent, whether appointed by the Company
or
by such court, shall be a corporation organized and existing under the laws
of
the State of New York, in good standing and having its principal office in
the
Borough of Manhattan, City and State of New York, and authorized under such
laws
to exercise corporate trust powers and subject to supervision or examination
by
federal or state authority. After appointment, any successor Warrant Agent
shall
be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor Warrant Agent
shall execute and deliver, at the expense of the Company, an instrument
transferring to such successor Warrant Agent all the authority, powers, and
rights of such predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations. NOTICE OF SUCCESSOR WARRANT
AGENT. In the event a successor Warrant Agent shall be appointed, the Company
shall give notice thereof to the predecessor Warrant Agent and the transfer
agent for the Common Stock not later than the effective date of any such
appointment.
10
8.2.2 Merger
or Consolidation of Warrant Agent.
Any
corporation into which the Warrant Agent may be merged or with which it may
be
consolidated or any corporation resulting from any merger or consolidation
to
which the Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3 Fees
and Expenses of Warrant Agent.
8.3.1 Remuneration.
The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand
for all expenditures that the Warrant Agent may reasonably incur in the
execution of its duties hereunder.
8.3.2 Further
Assurances.
The
Company agrees to perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this Agreement.
8.4 Liability
of Warrant Agent.
8.4.1 Reliance
on Company Statement.
Whenever in the performance of its duties under this Warrant Agreement, the
Warrant Agent shall deem it necessary or desirable that any fact or matter
be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the President or Chief Financial Officer
of
the Company and delivered to the Warrant Agent. The Warrant Agent may rely
upon
such statement for any action taken or suffered in good faith by it pursuant
to
the provisions of this Agreement.
8.4.2 Indemnity.
The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant Agent
and
save it harmless against any and all liabilities, including judgments, costs
and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
in
the execution of this Agreement except as a result of the Warrant Agent's
negligence, willful misconduct, or bad faith.
8.4.3 Exclusions.
The
Warrant Agent shall have no responsibility with respect to the validity of
this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by
the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under
the
provisions of Section 4 hereof or responsible for the manner, method, or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to
make
any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant
or
as to whether any shares of Common Stock will when issued be valid and fully
paid and nonassessable.
11
8.5 Acceptance
of Agency.
The
Warrant Agent hereby accepts the agency established by this Agreement and agrees
to perform the same upon the terms and conditions herein set forth and among
other things, shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all moneys
received by the Warrant Agent for the purchase of shares of the Company's Common
Stock through the exercise of Warrants.
9 Miscellaneous
Provisions.
9.1 Successors.
All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns.
9.2 Notices.
Any
notice, statement or demand authorized by this Warrant Agreement shall be deemed
to have been fully given when (a) delivered by hand (with written confirmation
upon receipt), (b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested,
or
(c) when received by addressee, if sent by nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth below (or to such addresses and telecopier
numbers as a party may designate by notice to the other parties):
Crossfire
Capital Corporation
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxx, President and CEO
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxx
Xxxx,
XX 00000
Attn:
Compliance Department
with
a
copy in each case to:
Davies
Xxxx Xxxxxxxx & Xxxxxxxx LLP
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx, Esq.
and
12
Xxxxxx,
Xxxxx Xxxxx, Incorporated
000
Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxxxxxxxx,
XX 00000
Attn:
Xxxxx XxXxxxx
with
a
copy to:
Xxxxxxx
Xxxxxx LLP
000
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxx
X. Xxxxxxxxx, Esq.
9.3 Applicable
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 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 at the address set forth in Section 9.2 hereof. Such mailing
shall be deemed personal service and shall be legal and binding upon the Company
in any action, proceeding or claim.
9.4 Persons
Having Rights Under This Agreement.
Nothing
in this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give
to, any person or corporation other than the parties hereto and the registered
holders of the Warrants and, for the purposes of Sections 2.4, 6.1, 6.4, 7.4,
7.5 and 9.2 hereof, FBW, any right, remedy, or claim under or by reason of
this
Warrant Agreement or of any covenant, condition, stipulation, promise, or
agreement hereof. FBW shall be deemed to be a third-party beneficiary of this
Agreement with respect to Sections 2.4, 6.1, 6.4, 7.4, 7.5 and 9.2 hereof.
All
covenants, conditions, stipulations, promises, and agreements contained in
this
Warrant Agreement shall be for the sole and exclusive benefit of the parties
hereto (and FBW with respect to the Sections 2.4, 6.1, 6.4, 7.4, 7.5 and 9.2
hereof) and their successors and assigns and of the registered holders of the
Warrants.
9.5 Examination
of the Warrant Agreement.
A copy
of this Agreement shall be available at all reasonable times at the office
of
the Warrant Agent in the Borough of Manhattan, City and State of New York,
for
inspection by the registered holder of any Warrant. The Warrant Agent may
require any such holder to submit his Warrant for inspection by it.
13
9.6 Counterparts.
This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
9.7 Effect
of Headings.
The
Section headings herein are for convenience only and are not part of this
Warrant Agreement and shall not affect the interpretation thereof.
[REMAINDER
OF PAGE DELIBERATELY LEFT BLANK]
14
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
|
Attest:
_____________________________
Attest:
______________________________
|
CROSSFIRE
CAPITAL CORPORATION
By:
_______________________________
Name:
Xxxxxx Xxxxxx
Title:
President
AMERICAN
STOCK TRANSFER & TRUST COMPANY
By:
________________________________
Name:
Title:
|
15
|
NUMBER
__________
|
(SEE
REVERSE LEGEND)
(THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO
5:00
P.M. NEW YORK CITY TIME, __________, 2011
|
WARRANTS
|
CROSSFIRE
CAPITAL CORPORATION
WARRANT
THIS
CERTIFIES THAT, for value received
is
the
registered holder of a Warrant or Warrants expiring ________, 2011 (the
“Warrant”) to purchase two fully paid and non-assessable shares of Common Stock,
par value $.0001 per share (“Shares”), of Crossfire Capital Corporation, a
Delaware corporation (the “Company”) for each Warrant evidenced by this Warrant
Certificate. The Warrant entitles the holder thereof to purchase from the
Company, commencing on the later of (i) the consummation by the Company of
a
merger, capital stock exchange, asset acquisition or other similar business
combination or (ii) ______________, 2007, such number of Shares of the Company
at the price of $5.00 per share, upon surrender of this Warrant Certificate
and
payment of the Warrant Price at the office or agency of the Warrant Agent,
American Stock Transfer & Trust Company, but only subject to the conditions
set forth herein and in the Warrant Agreement between the Company and American
Stock Transfer & Trust Company. The Warrant Agreement provides that upon the
occurrence of certain events the Warrant Price and the number of Warrant Shares
purchasable hereunder, set forth on the face hereof, may, subject to certain
conditions, be adjusted. The term Warrant Price as used in this Warrant
Certificate refers to the price per Share at which Shares may be purchased
at
the time the Warrant is exercised.
No
fraction of a Share will be issued upon any exercise of a Warrant. If the holder
of a Warrant would be entitled to receive a fraction of a Share upon any
exercise of a Warrant, the Company shall, upon such exercise, round up to the
nearest whole number the number of Shares to be issued to such
holder.
Upon
any
exercise of the Warrant for less than the total number of full Shares provided
for herein, there shall be issued to the registered holder hereof or his
assignee a new Warrant Certificate covering the number of Shares for which
the
Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent
by
the registered holder hereof in person or by attorney duly authorized in
writing, may be exchanged in the manner and subject to the limitations provided
in the Warrant Agreement, but without payment of any service charge, for another
Warrant Certificate or Warrant Certificates of like tenor and evidencing in
the
aggregate a like number of Warrants.
Upon
due
presentment for registration of transfer of the Warrant Certificate at the
office or agency of the Warrant Agent, a new Warrant Certificate or Warrant
Certificates of like tenor and evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any applicable tax or other governmental
charge.
The
Company and the Warrant Agent may deem and treat the registered holder as the
absolute owner of this Warrant Certificate (notwithstanding any notation of
ownership or other writing hereon made by anyone), for the purpose of any
exercise hereof, of any distribution to the registered holder, and for all
other
purposes, and neither the Company nor the Warrant Agent shall be affected by
any
notice to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a
stockholder of the Company until exercised.
The
Company reserves the right to redeem the Warrant, at any time prior to its
exercise, with a notice of redemption in writing to the warrantholders of
record, giving 30 days’ notice of such redemption at any time after the Warrant
becomes exercisable if the last sale price of the Shares has been at least
$8.50
per share on each of 20 trading days within any 30 trading day period ending
on
the third business day prior to the date on which notice of such redemption
is
given. The redemption price of the Warrants is to be $0.01 per Warrant. Any
Warrant either not exercised, or tendered back to the Company by the end of
the
date specified in the notice of redemption, shall be canceled on the books
of
the Company and have no further value except for the $0.01 redemption
price.
By
|
_____________________________
Xxxxxx
Xxxxxx, President
|
_____________________________
Xxxxxx
Xxxxxx, Secretary
|
SUBSCRIPTION
FORM
To
Be
Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise ______________
Warrants represented by this Warrant Certificate, and to purchase the shares
of
Common Stock issuable upon the exercise of such Warrants, and requests that
Certificates for such shares shall be issued in the name of
(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and
be
delivered to
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
and,
if
such number of Warrants shall not be all the Warrants evidenced by this Warrant
Certificate, that a new Warrant Certificate for the balance of such Warrants
be
registered in the name of, and delivered to, the Registered Holder at the
address stated below:
Dated:
_____________________
__________________________________________
(SIGNATURE)
__________________________________________
(ADDRESS)
__________________________________________
__________________________________________
(TAX
IDENTIFICATION NUMBER)
ASSIGNMENT
To
Be
Executed by the Registered Holder in Order to Assign Warrants
For
Value
Received, _______________________ hereby sell, assign, and transfer unto
(PLEASE TYPE OR PRINT NAME AND ADDRESS)
(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
and
be
delivered to
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
______________________
of the Warrants represented by this Warrant Certificate, and hereby irrevocably
constitute and appoint _________________________________ Attorney to transfer
this Warrant Certificate on the books of the Company, with full power of
substitution in the premises.
Dated:
_________________________
_________________________________
(SIGNATURE)
SIGNATURES
MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (A BANK,
STOCKBROKER, SAVINGS
AND LOAN ASSOCIATION OR CREDIT UNION WITH MEMBERSHIP IN A SECURITIES TRANSFER
ASSOCIATION INC. RECOGNIZED SIGNATURE GUARANTEE MEDALLION PROGRAM) PURSUANT
TO
RULE 17Ad-15 OF THE SECURITIES EXCHANGE ACT OF 1934.
