AMENDMENT TO UNIT PURCHASE OPTIONS
Exhibit
4.2
AMENDMENT
TO
This
AMENDMENT TO UNIT PURCHASE OPTIONS (this ‘‘Amendment’’), dated October 4, 2006,
is made by and between Millstream II Acquisition Corporation (the ‘‘Company’’)
and the holders designated on the signature page hereof (‘‘Holders’’), to those
certain Unit Purchase Options referred to below.
WHEREAS,
the Company issued those certain Unit Purchase Options, dated December 23,
2004
(the ‘‘Unit Purchase Options’’), in connection with the Company’s initial public
offering and the Holders are the owners of the Unit Purchase Options;
and
WHEREAS,
the parties hereto have agreed that the Unit Purchase Options be amended as
set
forth herein to clarify the understanding between the parties with respect
to
the terms of the Unit Purchase Options effective as of the date of their
issuance.
NOW,
THEREFORE, in consideration of the premises and of the agreements contained
herein, the parties hereto hereby agree as follows:
1. The
Unit Purchase Options are hereby amended by adding the following new Section
2.4
to such Unit Purchase Options:
‘‘2.4 No
Obligation to Net Cash Settle. Notwithstanding
anything to the contrary contained in this Purchase Option, if the Company
is
unable to deliver any securities pursuant to the exercise of this Purchase
Option as a result of its inability to satisfy its registration requirements
set
forth in Section 5 hereof, the Company will have no obligation to pay such
registered holder any cash or otherwise ‘‘net cash settle’’ the
Warrant.’’
2. Section
5.3 of the Unit Purchase Options is hereby deleted in its entirety.
3. Upon
the due execution and delivery of this Amendment by the parties hereto, on
and
after the date hereof each reference in the Unit Purchase Options to this
‘‘Purchase Option’’, ‘‘hereunder’’, ‘‘hereof’’, ‘‘herein’’ or words of like
import referring to the Unit Purchase Options shall mean and be a reference
to
the Unit Purchase Options, as amended hereby. Except as specifically amended
above, the Unit Purchase Options shall remain in full force and effect and
is
hereby ratified and confirmed.
4. This
Amendment may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which shall be deemed to be
an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts has been
signed by each of the parties hereto and delivered to each of the other parties
hereto.
IN
WITNESS WHEREOF, the parties have executed this AMENDMENT TO UNIT PURCHASE
OPTIONS as of the date first set forth above.
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By:/s/Xxxxxx
Xxxxxxx
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Name:
Xxxxxx Xxxxxxx
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Title:
Chief Executive Officer
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HOLDERS:
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EARLYBIRDCAPTIAL,
INC.
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By:/s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx Xxxxxx
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Title:
Chief Executive Officer
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/s/
Xxxxx X. Xxxxxxxx
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Xxxxx
X. Xxxxxxxx
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/s/Xxxxx
Xxxxxx
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Xxxxx
Xxxxxx
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/s/
Xxx Xxxx
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Xxx
Xxxx
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/s/Xxxxxx
Xxxxx
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Xxxxxx
Xxxxx
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/s/
Xxxxxx Xxxxxxxxx
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Xxxxxx
Xxxxxxxxx
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/s/
Xxxxx Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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