UNIT PURCHASE OPTION CLARIFICATION AGREEMENT
EXHIBIT
4.8
This Unit Purchase Option Clarification Agreement (this “Agreement”), dated as of January 17,
2007, is among Coconut Palm Acquisition Corp., a Delaware corporation, with offices at 000 Xxxxx
Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx, 00000 (the “Company”) and Xxxxxx Xxxxxx & Co. Inc.
(“Xxxxxx Xxxxxx”), EarlyBirdCapital, Inc. (“EarlyBird”), Xxxxx Xxxxxxxx (“Xxxxxxxx”) and Xxxxxx
Xxxxxx (“Xxxxxx” with Xxxxxx Xxxxxx, EarlyBird, Xxxxxxxx and Xxxxxx referred to collectively as the
“Option Holders”).
WHEREAS, the Company and each of the Option Holders separately are parties to a Unit Purchase
Option, dated as of September 8, 2005 (each separately the “Unit Purchase Option”) providing for
the issuance of Purchase Options (as defined in the Unit Purchase Option) to each of the Option
Holders; and
WHEREAS, as a result of certain questions that have arisen regarding the accounting treatment
applicable to the Purchase Option, the parties hereto deem it necessary and desirable to amend the
Unit Purchase Option to clarify that the Option Holder does not have the right, and did not have
the right at the time of issuance of the Purchase Option, to receive a net cash settlement in the
event the Company does not maintain a current prospectus relating to the units, common stock and
warrants issuable upon exercise of the Purchase Option at the time such Purchase Option is
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 Unit Purchase Option as set forth
herein.
1. Unit Purchase Option. The undersigned hereby agree that each Unit Purchase
Option is hereby amended by adding the following as Section 2.1.1:
“2.1.1 No Exercise of Purchase Option if a Registration Statement is not
Effective. Notwithstanding anything herein to the contrary, the Company shall not be obligated
to deliver any securities pursuant to the exercise of this Purchase Option unless (i) a
registration statement under the Act with respect to the Units, Warrants and Common Stock issuable
upon such exercise is effective and the registration statement’s prospectus is current, or (ii) in
the opinion of counsel to the Company or counsel to the Holder reasonably satisfactory to the
Company, the exercise of this Purchase Option is exempt from the registration requirements of the
Act and such securities are qualified for sale or exempt from qualification under applicable
securities laws of the states or other jurisdictions in which the registered holders reside. This
Purchase Option may not be exercised by, or securities issued to, any registered holder in any
state in which such exercise or issuance would be unlawful. The Holders are not, and at the time
of the initial issuance of this Purchase Option were not, entitled to receive a net-cash settlement
or other consideration in lieu of physical settlement in securities if the securities underlying
this Purchase Option are not covered by an effective registration statement which contains a
current prospectus.
2. Damages. The undersigned hereby agree that solely for the reason outlined in the
recital clause of this Agreement and without otherwise in any way limiting any rights the Option
Holder may have under applicable law as a result of a breach by the Company of any provision of the
Unit Purchase Option, each Unit Purchase Option is hereby amended by deleting Section 5.3 in its
entirety.
3. 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 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 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 Unit Purchase Option. Except as set forth in this Agreement,
provisions of the original Unit Purchase Option 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 Agreement as of the date first
written above.
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| COCONUT PALM ACQUISITION CORP. |
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| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chairman and Chief Executive Officer | |||
| XXXXXX XXXXXX & CO. INC. |
||||
| By: | /s/ Xxxxxxx Xxxxxx | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| EARLYBIRDCAPITAL, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Chairman | |||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx Xxxxxxxx | ||||
| /s/ Xxxxxx Xxxxxx | ||||
| Xxxxxx Xxxxxx | ||||
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