WARRANT CLARIFICATION AGREEMENT
Exhibit
4.1
THIS
WARRANT CLARIFICATION AGREEMENT (this “Agreement”),
dated
October
2,
2006,
is to the Warrant Agreement, dated as of December 17, 2004 (the “Warrant
Agreement”),
by
and between MILLSTREAM II ACQUISITION CORPORATION, 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 December
17, 2004, 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;
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 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 thereof:
“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) Defined
Terms.
Capitalized terms used but not defined herein shall have the respective meanings
ascribed to such terms in the Warrant Agreement.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(f) Execution.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument. Each counterpart may be delivered by facsimile transmission,
which transmission shall be deemed delivery of an originally executed
document.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK, SIGNATURE PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
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By:
/s/Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx
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Chairman,
Chief Executive Officer
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and
President
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
/s/ Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
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