Exhibit 10.11
FIRST AMENDMENT
TO
WARRANT AGREEMENT
This First Amendment to Warrant Agreement ("Amendment") is made and entered
into as of the _____ day of August, 1998, by and between MONITRONICS
INTERNATIONAL, INC., a Texas corporation f/k/a AV Alarm, Inc. (the "Company"),
with its principal place of business at 00000 Xxxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx Xxxxxx, Xxxxx 00000 and XXXXXX FINANCIAL, INC., a Delaware corporation
("Xxxxxx") with offices at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
WITNESSETH:
WHEREAS, the Company and Xxxxxx entered into that certain Warrant Agreement
dated November 10, 1994, (the "Warrant Agreement") (capitalized terms used but
not defined herein have the meaning assigned to such terms in the Warrant
Agreement); and
WHEREAS, the Company has requested that Xxxxxx amend the Warrant Agreement
to, among other things, terminate and rescind the put rights in favor of Xxxxxx
in exchange for the Company terminating and rescinding its call rights; and
WHEREAS, the parties hereto wish to amend the Warrant Agreement as provided
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
1.1 Correction of Paragraph Numbering. The Section designated as Section "5.3"
in the Warrant agreement appearing immediately after Section 5.1 of the
Warrant Agreement is hereby amended to designate such section as Section
"5.2". The references in clauses (ii) and (iii) of Section 5.10 to "Section
7.3" are hereby amended by replacing each such reference to "Section 7.3"
with "Section 5.11".
1.2 Amendment to Definitions. The definitions of "Call Notice", "Call Options",
"Call Price" and "Put Options" are hereby deleted in their entirety and the
definition of "Repurchase Price" set forth in Article I of the Warrant
Agreement is hereby amended in its, entirety to read as follows:
"Repurchase Price" has the meaning set forth in Section 5.11.
1.3 Amendment to Article V. Article V of the Warrant Agreement is hereby
amended by inserting the following at the end of that Article:
5.11 Determination of the Repurchase Price. The Repurchase Price per
share of the Issuable Warrant Shares as of a date specified herein (the
"Repurchase Price") shall be equal to the greater of:
First Amendment to Warrant Agreement--Page 1
(a) the Current Market Price per share of any publicly traded class of
Common Stock as of the date of such determination, if determinable; and
(b) the Fair Value of the Company, as of the date of such
determination; divided by the number of shares of Common Stock outstanding on a
fully diluted basis (including the Issuable Warrant Shares, after giving effect
to the payment of the Exercise Price therefore and shares of capital stock
issued after the Closing Date), as of such date.
1.4 Termination of Put Option. The put option granted to Xxxxxx pursuant to
Article VII is hereby terminated and rescinded and Article VII is hereby
amended in its entirety to read as follows:
ARTICLE VII
[Reserved]
1.5 Termination of Call Option. The call option granted to the Company pursuant
to Article VIII is hereby termination and rescinded and Article VIII is
hereby amended in its entirety to read as follows:
ARTICLE VIII
[Reserved]
SECTION 2. REPRESENTATION AND WARRANTIES. To induce Xxxxxx to enter into
this Amendment, the company represents and warrants to Xxxxxx that the
execution, delivery and performance by the Company of this Amendment is within
its corporate powers, has been duly authorized by all necessary corporate
action, has received all necessary governmental approval (if any shall be
required), and does not and will not contravene or conflict with any provision
of law applicable to the Company, the Articles of Incorporation or By-laws of
the Company, or any order, judgment or decree of any court or other agency of
government or any contractual obligation binding upon the Company; the Warrant
Agreement as amended as of the date hereof is the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms; as of the date of this Amendment, no Person holds any put rights with
respect to any Common Stock, Preferred Stock or Convertible Securities or other
rights to require the purchase by the Company of any Common Stock, Preferred
Stock or Convertible Securities other than redemption rights relative to the
Preferred Stock set forth in the Articles of Incorporation of the Company.
SECTION 3. MISCELLANEOUS.
(a) Captions. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of this Amendment.
(b) Governing Law. This Amendment shall be made under and governed by
the laws of the State of Illinois, without regard to conflict of laws
principles. Whenever possible, each provision of this Amendment shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Amendment shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or
First Amendment to Warrant Agreement--Page 2
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Amendment.
(c) Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Amendment. Facsimile signatures
shall be effective as originals.
(d) Successors and Assigns. This Amendment shall be binding upon the
Company and Xxxxxx and their respective successors and assigns, and shall inure
to the sole benefit of the Company and Xxxxxx and the successors and assigns of
the Company and Xxxxxx.
(e) References. Any reference to the Warrant Agreement contained in
any notice, request, certificate, or other document executed concurrently with
or after the execution and delivery of this Amendment shall be deemed to include
this Amendment unless the context shall otherwise require.
(f) Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Amendment are not intended to and do not serve to
effect a novation as to the Warrant Agreement. The Warrant Agreement as amended
hereby remains in full force and effect,
(SIGNATURE PAGE FOLLOWS)
First Amendment to Warrant Agreement--Page 3
IN WITNESS WHEREOF, this Agreement has been delivered at Chicago, Illinois
as of the day and year first above written.
MONITRONICS INTERNATIONAL, INC.
f/k/a AV Alarm, Inc.
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: President and C.E.O.
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
First Amendment to Warrant Agreement--Signature Page
