WARRANT CLARIFICATION AGREEMENT
Exhibit 4.6
This Warrant Clarification Agreement (this “Agreement”), dated as of August 17, 2006, 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); and
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 of the Company 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 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 other consideration in lieu of physical settlement in shares of Common Stock if the
Common Stock underlying the Warrants is not covered by an effective registration statement.”
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. 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 Warrant Clarification Agreement as
of the date first written above.
| COCONUT PALM ACQUISITION CORP. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chairman | |||
