WARRANT CLARIFICATION AGREEMENT
Exhibit 4.1
This Warrant Clarification Agreement (this “Agreement”), dated January 10, 2007, is to the Warrant
Agreement, dated as of April 10, 2006 (the “Warrant Agreement”), by and between JK Acquisition
Corp., a Delaware corporation (“Company”), and Continental Stock Transfer & Trust Company, a New
York corporation (“Warrant Agent”).
WHEREAS, Section 3.3.2 of the Warrant Agreement provides 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 (“Securities Act”), with respect to the common stock is
effective.
WHEREAS, in furtherance of the foregoing, the Company’s final prospectus, dated April 11, 2006,
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 under the Securities Act 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 amend the Warrant
Agreement to clarify that the registered holders do not have the right to receive a net cash
settlement in the event the Company does not maintain a current prospectus relating to the common
stock issuable upon exercise of the warrants at the time such warrants are exercisable.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending
to be legally bound hereby, the parties hereto agree to amend the Warrant Agreement as set forth
herein.
1. Warrant Agreement. The Warrant Agreement is hereby amended by adding the following
sentence as the penultimate sentence of Section 3.3.2:
“Furthermore, if
the Company is
unable to deliver
any securities
pursuant to the
exercise
of a Warrant as a
result of the
foregoing
situations, the
Company will have
no obligation to
pay such registered
holder any cash or
other consideration
or otherwise “net
cash settle” the
Warrant.”
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
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 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.
IN WITNESS WHEREOF, the parties hereto have executed this Warrant Clarification Agreement as of the
date first written above.
| JK ACQUISITION CORP. |
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| By: | ||||
| Xxxxx X. Xxxxxx, Chief Executive Officer | ||||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY |
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| By: | ||||
| Xxxxx Xxxxxxxx, Vice President | ||||
