WARRANT CLARIFICATION AGREEMENT NO. 2
This
Warrant Clarification Agreement (this “Agreement”), dated December 8, 2006, is
to the Warrant Agreement, dated as of July 13, 2005 (the “Original Warrant
Agreement”), by and between Fortress America Acquisition Corporation, a Delaware
corporation (“Company”), and Continental Stock Transfer & Trust Company, a
New York corporation, as amended by Warrant Clarification Agreement dated
October 27, 2006 (as amended, the “Warrant Agreement”).
WHEREAS,
Section
3.3.2 of the Original Warrant Agreement provided that Company shall not be
obligated to deliver any securities pursuant to the exercise of a warrant unless
a registration statement under the Securities Act of 1933, as amended, with
respect to the common stock underlying the warrants is effective.
WHEREAS,
in
furtherance of the foregoing, the Company’s final prospectus, dated July 13,
2005, indicated (i) that no warrant would be exercisable unless at the time
of
exercise a prospectus relating to the common stock issuable upon exercise of
the
warrant is current and the common stock has been registered or qualified or
deemed to be exempt under the securities laws of the state of residence of
the
holder of the warrant and (ii) that the warrant may be deprived of any value
and
the market for the warrant may be limited if the prospectus relating to the
common stock issuable upon the exercise of the warrant is not current or if
the
common stock is not qualified or exempt from qualification in the jurisdictions
in which the holder of the warrant resides.
WHEREAS,
as a
result of certain questions that have arisen regarding the accounting treatment
applicable to the warrants, the parties hereto deem it necessary and desirable
to further amend the Warrant Agreement to clarify that (i) the warrants under
the Warrant Agreement may expire unexercised or unredeemed if there is no
effective registration statement and (ii) there are no circumstances under
which
the Company will be required to net cash settle the warrants.
NOW,
THEREFORE,
in
consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree
to amend the Warrant Agreement as set forth herein.
1.
Warrant
Agreement.
The
Warrant Agreement is hereby clarified and amended, effective as of the date
of
the Warrant Agreement, by replacing the penultimate sentence of Section 3.3.2
with the following sentence:
“Furthermore,
(i) if a Warrant has not previously been exercised and if there is no then
current and effective registration statement under the Act covering the Warrant
on the Expiration Date, the Warrant will expire unexercised and unredeemed
on
the Expiration Date and (ii) under no circumstances will the Company be
obligated to pay registered holders any cash or other consideration or otherwise
“net cash settle” the Warrants.”
2. Miscellaneous.
(a) Governing
Law.
The
validity, interpretation, and performance of this Agreement and of the Warrants
shall be governed in all respects by the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The Company hereby
agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the United States District Court for the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenience
forum. Any such process or summons to be served upon the Company may be served
by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section
9.2 of the Warrant Agreement. Such mailing shall be deemed personal service
and
shall be legal and binding upon the Company in any action, proceeding or
claim.
(b) Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and to their respective heirs, legal representatives, successors and
assigns.
(c) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter thereof and merges and supersedes all prior
discussions, agreements and understandings of any and every nature among them.
Except as set forth in this Agreement, provisions of the Warrant Agreement
which
are not inconsistent with this Agreement shall remain in full force and effect.
This Agreement may be executed in counterparts.
(d) Severability.
This
Agreement shall be deemed severable, and the invalidity or unenforceability
of
any term or provision hereof shall not affect the validity or enforceability
of
this Agreement or of any other term or provision hereof. Furthermore, in lieu
of
any such invalid or unenforceable term or provision, the parties hereto intend
that there shall be added as part of this Agreement a provision as similar
in
terms to such invalid or unenforceable provision as may be possible and be
valid
and enforceable.
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IN
WITNESS WHEREOF, the parties hereto have executed this Warrant Clarification
Agreement No. 2 as of the date first written above.
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇▇, President
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, President
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