AMENDED AND RESTATED WARRANT CLARIFICATION AGREEMENT
Exhibit 4.7
AMENDED AND RESTATED WARRANT CLARIFICATION
AGREEMENT
AGREEMENT
This Amended and Restated Warrant Clarification Agreement (this “Agreement”), dated as of
January 17,2007, is between Coconut Palm Acquisition Corp., a Delaware corporation, with offices
at 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx, 00000 (the “Company”) and
Continental Stock Transfer & Trust Company, a New York corporation, with offices at 00 Xxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Warrant Agent”).
WHEREAS, the Company and Warrant Agent are parties to that certain Warrant Agreement, dated
as of September 8, 2005 (the “Warrant Agreement”) providing for the issuance of Warrants (as such
term is defined therein);
WHEREAS, as a result of certain questions that arose arisen regarding the accounting
treatment applicable to the Warrants, the parties pursuant to a Warrant Clarification Agreement
dated August 17, 2006 (the “Warrant Clarification Agreement”) deemed it necessary and desirable to
amend the Warrant Agreement to clarify that the registered holders do not have the right, and did
not have the right when the parties initially entered into the Warrant Agreement, to receive a net
cash settlement in the event the Company does not maintain a current prospectus relating to the
Common Stock of the Company issuable upon exercise of the Warrants at the time such Warrants are
exercisable; and
WHEREAS, the parties deem it necessary and desirable to amend and restate the Warrant
Clarification Agreement to make clear that the reference to the “effective registration” should
have been to a “current prospectus”.
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 undersigned hereby agree that the Warrant
Agreement is hereby amended by adding the following last sentence to Section 3.3.2:
“In no event will the registered holder of a Warrant be entitled to receive a net cash
settlement or any other consideration in lieu of physical settlement in shares of Common Stock, and
therefore such Warrants may expire unexercised and without value, if the Common Stock underlying
the Warrants is not covered by a current prospectus.”
2. Miscellaneous.
a.
Governing Law;Jurisdiction. The validity, interpretation, and performance of this
Agreement shall be governed in all respects by the laws of the State of New York, without giving
effect to conflict of laws. The Company hereby agrees that any action, proceeding or claim against
it arising out of or relating in any way to this Agreement shall be brought and enforced in the
courts of the State of New York or the
United States District Court for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to
such exclusive jurisdiction and that such courts represent an 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 in care of the
address set forth above or such other address as the undersigned shall furnish in writing to the
other. Such mailing shall be deemed personal service and shall be legal and binding upon the
Company in any action, proceeding or claim.
b. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and to their respective heirs, legal representatives, successors
and assigns.
c.
Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter thereof and merges and
supersedes all prior discussions, agreements and understandings of any and every nature
among them, including without limitation the Warrant Clarification Agreement. This
Agreement shall form and be a part of the Warrant Agreement. Except as set forth in this
Agreement, provisions of the original 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 a part of this Agreement a provision as similar
in terms to such invalid or unenforceable provision as may be possible and be valid and
enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Warrant
Clarification Agreement as of the date first written above.
| COCONUT PALM ACQUISITION CORP. | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxxx
|
|||||
| Title: | Chairman and Chief Executive Officer | |||||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Chairman | |||||
