Exhibit 99.1
The Shaar Fund, Ltd.
c/o Shaar Advisory Services Ltd.
00 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx 0X
Xxxxxxxxx, Xxxxxx
June 8, 2001
Cross Media Marketing Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the letter agreement, dated December 28, 2000,
as amended as of February 27, 2001 (as so amended, the "December Letter
Agreement"), between Cross Media Marketing Corporation, f/k/a Symposium
Corporation (the "Company") and the undersigned (the "Purchaser"). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the December Letter Agreement.
This letter (the "Amendment") sets forth our agreement to further
amend the December Letter Agreement as follows:
1. The Company and the Purchaser agree that, prior to the
Restriction Termination Date, if, on the date of a proposed conversion of the
Series A Shares the Current Market Price is less than $1.50 per share, the
Conversion Price will be $1.50 per share. As used herein, "Restriction
Termination Date" means December 9, 2001, unless the Purchaser has given the
Company a Restriction Termination Notice as provided below, in which event
Restriction Termination Date means September 9, 2001. The Purchaser may, in its
sole discretion, accelerate the Restriction Termination Date to September 9,
2001 by giving notice of such acceleration to the Company on or before August 9,
2001 (a "Restriction Termination Notice"). Accordingly, the second paragraph of
Section 6.1(c) of the Certificate is deemed to be eliminated and the following
proviso is deemed to be added to the end of Section 6.1(a) of the Certificate:
"provided, however, that if the Current Market Price on any
Conversion Date prior to the Restriction Termination Date (as
hereinafter defined) is less than $1.50 (subject to adjustment for
any stock-split or stock combination or reverse stock split to
occur after the date hereof), then, notwithstanding the preceding
provisions of this Section 6.1(a), the Conversion Price on such
Conversion Date shall be $1.50 (subject to adjustment for any
stock-split or stock combination or reverse stock split to occur
after
the date hereof). The foregoing proviso will not apply to the
determination of the Conversion Price on any Conversion Date on or
after the Restriction Termination Date. As used herein, "Restriction
Termination Date" means December 9, 2001 unless the Holder of the
Series A Preferred Stock has given the Company a Restriction
Termination Notice (as hereinafter defined), in which event
Restriction Termination Date means September 9, 2001. The Holder of
the Series A Preferred Stock may, in its sole discretion, accelerate
the Restriction Termination Date to September 9, 2001, by giving
written notice thereof to the Corporation on or before August 9,
2001 (a notice given pursuant to this sentence on or before August
9, 2001 being herein referred to as a "Restriction Termination
Notice")."
2. The Company and the Purchaser agree that the Company will not
give a notice of redemption with respect to the Series A Shares prior to the
earlier of: (a) the date on which the Purchaser gives a Restriction Termination
Notice; or (b) if no Restriction Termination Notice is given, then 90 days prior
to December 9, 2001. If the Purchaser gives a Restriction Termination Notice,
then the Company may give a notice of redemption at any time beginning on the
date of the Restriction Termination Notice. If the Company gives a notice of
redemption pursuant to clause (a) of the immediately preceding sentence prior to
September 9, 2001, such notice of redemption may provide for a Redemption Date
at any time on or after September 9, 2001 (without regard to the sixty day
minimum notice provision otherwise in effect), but not later than the 90th day
following the date of such notice of redemption. If the Company gives a notice
of redemption on or after September 9, 2001, the provisions of Sections 6.6 and
6.7 of the Certificate as currently in effect shall govern the giving of such
notice of redemption.
3. The Holder may convert the Series A Shares at any time prior to
the Restriction Termination Date whether or not the Company has given a notice
of redemption pursuant to Section 6.7. On or after the Restriction Termination
Date, the Series A Shares may not be converted from and after the date on which
the Company gives a redemption notice.
4. In order to reflect the agreements of the Company and the
Purchaser set forth in paragraphs 2 and 3 above, Sections 6.6 and 6.7 of the
Certificate are hereby deemed to be amended to read in their entirety as
follows:
SECTION 6.6 Optional Redemption Under Certain Circumstances. At
any time after sixty (60) days from the date of issuance of the
Series A Preferred Stock, the Corporation, upon notice delivered to
the Holder as provided in Section 6.7, may redeem, for cash all,
but not less than all, of the Series A Preferred Stock (but only
with respect to such Preferred Stock which was not, or is not,
converted to Common Stock prior to the close of business on the
date preceding the date of the notice of redemption given pursuant
to Section 6.7), at one hundred percent (100%) of the Stated Value
thereof (the "Optional Redemption Price"), together with all
accrued and unpaid dividends thereon to the date of redemption (the
"Redemption Date"), provided, however, that (i) the Corporation may
not redeem any Series A Preferred Stock under this Section 6.6 if,
on the date of the notice of redemption the average of the closing
ask prices of the Common Stock during the twenty Trading Day period
prior to said date is equal to or greater than $5.00 (subject to
adjustment for any stock-split or stock combination or reverse
stock split to occur after the Closing Date); and (ii) the
Corporation will not give a notice of redemption with respect to
the Series A Preferred Stock prior to: (x) if the Holder gives a
Restriction Termination Notice, then the date on which such
Restriction Termination Notice is given; or (y) if no Restriction
Termination Notice is given, then ninety (90) days prior to
December 9, 2001 (December 9, 2001 being the earliest Redemption
Date that may be specified in a notice of redemption pursuant to
this clause (y)). Except as set forth in this Section 6.6, the
Corporation shall not have the right to prepay or redeem the Series
A Preferred Stock. Upon issuing a notice of redemption as provided
in Section 6.7 below, the Corporation shall be contractually bound
to redeem the Series A Preferred Stock pursuant to the terms hereof
and the Holder may not convert such Series A Preferred Stock except
that (A) the Holder may convert the Series A Preferred Stock at any
time prior to the Restriction Termination Date whether or not the
Corporation has given a notice of redemption pursuant to Section
6.7; and (B) the Holder may convert under the circumstances set
forth in the next sentence. If the Corporation thereafter defaults
or otherwise breaches its obligations to redeem the Series A
Preferred Stock, the Holder may, at its election, (i) seek damages
from the Corporation, or (ii) convert the Series A Preferred Stock
into Common Stock pursuant to the terms hereof, provided, however,
that the Holder may select any date within the sixty day period
prior to, or the thirty day period after, the Redemption Date as
the Conversion Date for purposes of determining the Conversion
Price.
SECTION 6.7 Notice of Redemption. Notice of redemption pursuant
to Section 6.6 shall be provided by the Corporation to the Holder
in writing (by telecopy, registered mail or overnight courier at
the Holder's last address appearing in the Corporation's security
registry) not less than sixty (60) nor more than ninety (90) days
prior to the Redemption Date, which notice shall specify the
Redemption Date and refer to Section 6.6 (including a statement of
the Market Price per Common Share) and this Section 6.7; provided,
however, that if the Corporation gives a notice of redemption prior
to September 9, 2001 pursuant to clause (ii)(x) of the proviso to
the first sentence of Section 6.6, such notice of redemption may be
given without regard to a minimum notice
requirement as long as the Redemption Date is on or after September
9, 2001, but such notice shall not be given more than ninety (90)
days prior to the Redemption Date.
4. The Company hereby notifies the Purchaser that all notices to be
given to the Company pursuant to the Securities Purchase Agreement or any other
agreement between the Company and the Purchaser should be directed to it at the
address set forth above, to the attention of Xxxxxx Xxxxxxx, Chairman and Chief
Executive Officer and that the Company's telephone number is 000-000-0000 and
its facsimile number is 212-457-1202. The Purchaser hereby notifies the Company
that all notices to be given to the Purchaser pursuant to the Securities
Purchase Agreement or any other agreement between the Company and the Purchaser,
including without limitation notices of redemption pursuant to Section 6.7 of
the Certificate, may be directed to it c/x Xxxxxxxx Capital Management, 2 World
Trade Center, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 and its facsimile number c/x
Xxxxxxxx Capital Management is 000-000-0000.
5. The Purchaser further agrees that it will not transfer any Series
A Shares unless and until the proposed transferee has agreed in writing to be
bound by the provisions of the December Letter Agreement, as amended hereby,
fully and to the same extent as the Purchaser is so bound and causes a copy of
such agreement to be delivered to the Company. Any transfer in violation of the
immediately preceding sentence will be void and will not be recognized by the
Company.
6. All references in the December Letter Agreement to "this
Agreement," "herein", "hereof" or the like shall hereinafter be deemed to refer
to the December Letter Agreement as amended hereby. Except as expressly amended
hereby, the December Letter Agreement shall remain in full force and effect as
originally executed and delivered by the Company and the Purchaser. The
provisions of paragraph 7 of the December Letter Agreement shall apply to this
Amendment (and to the December Letter Agreement as amended hereby) fully and to
the same extent as if set forth in their entirety herein and for this purpose,
such provisions are incorporated by reference herein.
If the foregoing correctly sets forth our understanding, please so
indicate by signing an enclosed counterpart of this Agreement and returning it
to the undersigned, whereupon it will constitute a binding agreement between us.
This Amendment may be executed in counterparts and by the parties hereto in
separate counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
Very truly yours,
THE SHAAR FUND LTD.
By: LCM LLC
By: /s/ Xxx Xxxxxxxx
-------------------
Accepted and agreed to as of
the date first above written:
CROSS MEDIA MARKETING CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx
Chairman of the Board and Chief Executive Officer
