AMENDMENT NO. 2 TO UNIT PURCHASE OPTION
AMENDMENT
NO. 2 TO UNIT PURCHASE OPTION
This
AMENDMENT NO. 2 TO UNIT PURCHASE OPTION (this “Amendment”), dated December 8,
2006, is made by and between Fortress America Acquisition Corporation (the
“Company”) and Sunrise Securities Corp. (“Sunrise”).
WHEREAS,
the Company issued that certain Unit Purchase Option, dated July 13, 2005 (the
“Unit Purchase Option”) to Sunrise;
WHEREAS,
the Company and Sunrise entered into that certain Amendment to Unit Purchase
Option dated October 27, 2006; and
WHEREAS,
the parties hereto have agreed that the Unit Purchase Option, as previously
amended, be further amended as set forth herein to clarify the understanding
between the parties with respect to the terms of the Unit Purchase Option
effective as of the date of its issuance.
NOW,
THEREFORE, in consideration of the premises and of the agreements contained
herein, the parties hereto hereby agree as follows:
1. Amendment
to the Unit Purchase Option.
To
reflect the original intention of the parties, Section 5.3 of the Unit Purchase
Option, as previously amended, is and shall be further amended and restated
in
its entirety, effective as of the date of the Unit Purchase Option, as
follows:
“5.3 No
Net-Cash Settlement or Damages Upon Failure of Registration.
(i) If
the Purchase Option has not previously been exercised and if there is no then
current and effective registration statement under the Act covering the Purchase
Option and the other Registrable Securities, the Purchase Option will expire
unexercised and unredeemed on the Expiration Date. (ii) Under no circumstances
shall the Holder of this Purchase Option be entitled to (a) net-cash settlement
of this Purchase Option or the Warrants underlying the Purchase Option,
regardless of whether any or all of the Registrable Securities have been
registered by the Company pursuant to an effective registration statement,
or
(b) receive any damages if any or all of the Registrable Securities have not
been registered by the Company pursuant to an effective registration statement.
(iii) The Holder of this Purchase Option will not be entitled to exercise this
Purchase Option or the Warrants underlying this Purchase Option unless a
registration statement covering the Registrable Securities is effective or
an
exemption from registration is available. (iv) The foregoing provisions of
this
Section 5.3 do not relieve the Company of its obligation to use its best efforts
to have a registration statement or post-effective amendment filed pursuant
to
Section 5.1 declared effective as soon as possible after receiving the Initial
Demand Notice.”
2. Reference
to and Effect on the Unit Purchase Option.
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 Option to this
“Purchase Option”, “hereunder”, “hereof”, “herein” or words of like import
referring to the Unit Purchase Option shall mean and be a reference to the
Unit
Purchase Option, as amended hereby. Except as specifically amended above, the
Unit Purchase Option shall remain in full force and effect and is hereby
ratified and confirmed.
3. Execution
in Counterparts.
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.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this AMENDMENT NO. 2 TO UNIT PURCHASE
OPTION as of the date first set forth above.
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By:
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/s/
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SUNRISE
SECURITIES CORP.
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By:
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/s/
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