Exhibit 10.1
SECOND AMENDED WARRANT AGREEMENT
SECOND AMENDED WARRANT AGREEMENT dated as of November 30, 2000 between
XXXXXXXXXX.XXX, INC., a Delaware corporation having an address at 000 Xxx
Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000 (the "Company"), and AMERICAN STOCK TRANSFER
& TRUST COMPANY, having an address at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as Warrant Agent (the "Warrant Agent") (the "Second Amended Warrant
Agreement.").
WHEREAS, the Company proposes to extend the expiration date of its
outstanding Class A Warrants, which are publicly traded and currently
exercisable at $3.30 per share, for five additional years until December 11,
2005 to permit the Company to retain the ability to obtain additional capital
without incurring the expense and experiencing the delays inherent in either a
secondary public offering or a private placement of securities;
WHEREAS, in connection with extension of the expiration date of the
Company's outstanding Class A Warrants, the Company hereby enters into this
Second Amended Warrant Agreement (the "Second Amendment"), which Second
Amendment amends the Warrant Agreement dated as of December 11, 1992 between
Universal Self Care, Inc. and American Stock Transfer & Trust Company (the
"Original Agreement"), as previously amended by the Amended Warrant Agreement
dated as of November 30, 1999 between Xxxxx Holdings, Inc. and American Stock
Transfer and Trust Company (the "First Amendment," and collectively, with the
Original Agreement, the "Warrant Agreement").
NOW, THEREFORE, in consideration of the forgoing and for the purposes
of defining the terms and provisions of the Class A Warrants and the respective
rights and obligations thereunder of the Company and the registered owners of
the Class A Warrants (the "Holders"), the Company and the Warrant Agent hereby
agree as follows:
1. DEFINITIONS. All terms not expressly defined herein shall the have the
same meaning as set forth in the Warrant Agreement.
2. AMENDMENT TO SECTION 5.1 OF THE WARRANT AGREEMENT. Section 5.1 of the
Warrant Agreement is hereby amended to read as follows:
"5.1. Term of Warrants. Subject to the terms of this
Agreement, each Holder of Class A Warrants shall have the
right, which may be exercised during the period commencing
on the first anniversary of the date hereof and ending at
the close of business on the thirteenth anniversary of the
date hereof, to purchase from the Company the number of
fully-paid and non-assessable Warrant Shares which the Holder
may at the time be entitled to purchase on exercise of such
Warrants."
3. AMENDMENT TO SECTION 11 OF THE WARRANT AGREEMENT. Section 11 of the
Warrant Agreement is hereby amended to read as follows:
"11. Expiration of Warrants. At the close of business
on the thirteenth anniversary of the date hereof, all
outstanding Class A Warrants shall become null and void and
all rights of all holders thereof and thereunder and under
this Agreement shall cease."
4. AMENDMENT TO SECTION 26 OF THE WARRANT AGREEMENT. Section 26 of the
Warrant Agreement is hereby amended to read as follows:
"26. Termination. This Agreement shall terminate at the close
of business on the day which is seven (7) days after the
thirteenth anniversary of the date hereof, or such earlier
date upon which all Warrants have been exercised, except that
the Warrant Agent shall account to the Company for any cash
held by it after the termination hereof."
5. PROVISIONS NOT AMENDED. All terms of the Warrant Agreement not
otherwise amended hereby shall continue to remain in full force and effect.
6. SUCCESSORS. All the covenants and provisions of this Second Amended
Warrant Agreement by or for the benefit of the Company or the Warrant
Agent shall bind and inure to the benefit of their respective successors and
assigns.
7. APPLICABLE LAW. This Second Amended Warrant Agreement shall be
governed by, and construed in accordance with, the laws of the State of
New York, without giving effect to any principles of conflicts of law.
8. BENEFITS OF THIS AMENDED WARRANT AGREEMENT. Nothing in this Second
Amended Warrant Agreement shall be construed to give any person or corporation
other than the Company, the Warrant Agent and the Holders any legal or equitable
right, remedy or claim under this Second Amended Warrant Agreement. This Second
Amended Warrant Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the Holders of the Warrants.
9. COUNTERPARTS. This Second Amended Warrant Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
10. CAPTIONS. The captions of the sections and subsections of this Second
Amended Warrant Agreement have been inserted for convenience only and shall
have no substantive effect.
IN WITNESS WHEREOF, the undersigned have duly executed this Second Amended
Warrant Agreement effective as of the date first written above.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
President
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Xxxxxxx X. Xxxxxx
Vice President
