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Exhibit 4.2
FIRST SUPPLEMENTAL
WARRANT AGREEMENT
This First Supplemental
Warrant Agreement (this “Agreement” ),
dated March 18 , 2008, is to the Warrant Agreement, dated as
of August 30, 2006 (the “Warrant
Agreement” ), by and between MARATHON ACQUISITION
CORP., a Delaware corporation, (the
“Company” ), and THE BANK OF NEW YORK, a
New York trust company (the successor thereto under the Warrant
Agreement, MELLON INVESTOR SERVICES LLC, a New Jersey limited
liability company, the “Warrant Agent”
).
WHEREAS ,
Section 6.01(a)(i) of the Warrant Agreement provides that such
Warrant Agreement may be amended by the parties thereto, without
the consent of the Holder (as defined therein) of any Warrant (as
defined therein), for the purpose of curing any ambiguity, or
curing, correcting or supplementing any defective provision
contained therein, or making any other provisions with respect to
matters or questions arising under the Warrant Agreement that is
not inconsistent with the provisions of the Warrant Agreement or
the Warrant Certificates (as defined therein);
and
WHEREAS , as
contemplated by the Warrant Agreement, in connection with the
Company’s IPO (as defined in the Warrant Agreement) the
Company issued an aggregate of 40,035,850 Units (as defined in the
Warrant Agreement), including an aggregate of 40,035,850 IPO
Warrants (as defined in the Warrant Agreement) underlying such
Units, and an aggregate of 5,500,000 Sponsor Warrants (as defined
in the Warrant Agreement), and as a result thereof, has an
aggregate of 45,535,850 outstanding Warrants; and
NOW, THEREFORE , in
consideration of the mutual agreements contained herein, and of
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 as follows:
1. Warrant
Agreement .
a. Pursuant to
Section 6.01(a)(i) thereto, the Warrant Agreement is amended
hereby by amending and restating Section 1.02(a) thereto as
follows:
“One or more Warrant
Certificates evidencing Warrants to purchase not more than
45,535,850 Shares (subject to adjustment as provided for in
Section 2.04) may be executed by the Company and delivered to
the Warrant Agent upon the execution of this Agreement or from time
to time thereafter.”
2. Miscellaneous
.
a. GOVERNING
LAW . THIS AGREEMENT, THE LEGAL RELATIONS BETWEEN AND AMONG THE
PARTIES HERETO, THE ADJUDICATION AND THE ENFORCEMENT HEREOF SHALL
BE GOVERNED BY AND INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS FORMED AND TO
BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAW PROVISIONS THEREOF TO THE EXTENT SUCH
PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION.
b.
Jurisdicti
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