WARRANT AGREEMENT
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) 20,000,000 Warrants (the "Public Warrants") to the public investors,
(ii)
3,000,000 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-________ 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 and Chief Financial Officer or 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.
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 for the registration of
original issuance and the registration of transfer of the Warrants (the "Warrant
Register"). 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 date hereof 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
Underwriter's over-allotment option, if the over-allotment option is exercised
prior to the filing of the Form 8-K. Certificates evidencing the Warrants shall
bear a legend reflecting the restrictions on transferability set forth in this
Section 2.4.
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.
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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.
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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 a Representative's Warrant is exercisable
under Section 3.3.1, and in lieu of being entitled to receive shares in the
manner required by Section 3.3.2, the registered holder of an Underwriter's
Warrant shall have the right (but not the obligation) to convert any exercisable
but unexercised portion of said Underwriter's Warrant 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 Underwriter's Warrant being converted
by
(y) the "Current Market Price" (as defined below) of a share of Common Stock.
The "Value" of the portion of the Underwriter's Warrant 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 Underwriter's Warrant 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 Underwriter's Warrant being
converted.
The
"Current Market Price" of a share of Common Stock on any day shall
mean
(i)
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;
(ii)
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)
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.
3.5 MECHANICS
OF CASHLESS EXERCISE. The Cashless Exercise Right may be exercised by the
registered holder of any Underwriter's Warrant on any business day during the
Exercise Period by delivering the Underwriter's Warrant 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.
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.
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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.
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.
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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.
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.
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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.
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.
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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). The provisions of this Section 7.4 may not be modified, amended
or
deleted without the prior written consent of FBW.
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.
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8.2.2 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.
8.2.3 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.
10
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:
Xxx
X. Xxxxxx, Esq.
11
and
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 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 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 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.
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.
12
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]
13
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the day and year first above written.
| Attest: | CROSSFIRE CAPITAL CORPORATION | |
| |
|
|
| By: | ||
|
|
Name:
Xxxxxx Xxxxxx
Title:
President
|
|
| Attest: | AMERICAN STOCK TRANSFER & TRUST COMPANY | |
| |
|
|
| By: | ||
|
|
Name:
Title:
|
|
14
Exhibit A
|
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, President
|
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) |
THE
SIGNATURE TO THE ASSIGNMENT OF THE SUBSCRIPTION FORM MUST CORRESPOND TO
THE NAME
WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE GUARANTEED
BY A
COMMERCIAL BANK OR TRUST COMPANY OR A MEMBER FIRM OF THE AMERICAN STOCK
EXCHANGE, NEW YORK STOCK EXCHANGE, PACIFIC STOCK EXCHANGE OR CHICAGO STOCK
EXCHANGE.
