Exhibit 4.3.1
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED UNLESS
REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR, IN
THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
AMENDMENT NO. 1
TO
WARRANT
FOR VALUE RECEIVED, the adequacy and receipt of which is hereby
acknowledged, SOUTHHAMPTON ENTERPRISES CORP., a British Columbia (Canada)
corporation, hereby certifies to LASALLE BUSINESS CREDIT, INC. ("Holder"), and
its successors and assigns, that the Warrant dated May 7, 1997 originally issued
to Holder ("Warrant") shall be amended as set forth herein.
1. Definitions. Capitalized terms not otherwise defined shall have the
meanings set forth in the Warrant.
2. Number of Shares. The number of shares of Common Stock initially
issuable under the Warrant shall be 2,032,597, which amount shall be subject to
adjustment as provided in the Warrant.
3. Other Amendments. The Warrant shall be amended as follows:
a. The first paragraph of the Warrant, which paragraph commences with
the words "This is to certify that," is hereby amended by deleting the following
two sentences:
The term "Exercise Price" means initially the lower of (i)
One Dollar ($1.00) per share and (ii) the lowest price
established by any of the following financing(s) that occurs
within twelve (12) months of the date hereof: (A) the price
per share of common equity established by the first round of
common equity financing after the date hereof, or (B) the
conversion price to Common Stock or exercise price for
Common Stock established by the first round of preferred
stock, Convertible Securities or options or rights to
purchase Common Stock after the date hereof. In the absence
of any such financing within the above time period, the
initial exercise price shall be One Dollar ($1.00) per
share.
And substituting in lieu thereof the following:
The term "Exercise Price" means initially One Dollar ($1.00)
per share.
b. The defined term "Warrant" as used in the Warrant shall mean the
Warrant as amended by any amendments to the Warrant, and any warrants issued in
exchange or replacement of the Warrant or upon the transfer of the Warrant
hereof.
c. Section 4.10 is hereby amended by deleting its present language in
its entirety and substituting in lieu thereof the following:
4.10 Adjustment of Exercise Price.
(a) Changes Based on Adjustments In Number Of
Warrant Shares. Whenever the number of Warrant
Shares purchasable upon the exercise of the
Warrant is adjusted, the Exercise Price with
respect to the Warrant Shares shall be adjusted by
multiplying such Exercise Price immediately prior
to such adjustment by a fraction, of which the
numerator shall be the number of Warrant Shares
purchasable upon the exercise of the Warrant
immediately prior to such adjustment, and of which
the denominator shall be the number of Warrant
Shares so purchasable immediately thereafter.
(b) The Cruttenden Warrant. Concurrent with
the issuance of this Warrant, the Company has also
issued a warrant to The Cruttenden Xxxx Bridge
Fund, LLC, to purchase 10.0% of the Company's
Common Stock on a fully diluted basis (the
"Cruttenden Warrant"). It is the intent of the
Company that the Exercise Price shall never be
greater than the per share exercise price
determined under the Cruttenden Warrant.
Accordingly, notwithstanding anything to the
contrary contained in this Warrant, the Exercise
Price of this Warrant shall be equal to the lesser
of i) the Exercise Price as determined under the
terms of this Warrant (not taking into account
this Section 4.(b); and ii) the per share exercise
price determined under the terms of the Cruttenden
Warrant in effect at the time the Holder desires
to exercise this Warrant.
4. Miscellaneous Provisions.
a. Except as amended by this Amendment No. 1 to Warrant, the terms and
conditions of the Warrant shall remain in full force and effect.
b. The covenants and agreements of this Amendment No. 1 to Warrant
shall bind the heirs, assigns and successors of the Company.
c. This Amendment No. 1 to Warrant shall be deemed to have been made
in the State of Maryland and the validity of this Amendment No. 1 to Warrant,
the construction, interpretation, and enforcement thereof, and the rights of the
parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of Maryland, without regard to
principles of conflicts of law.
d. The headings in this Amendment No. 1 to Warrant are inserted only
for convenience of reference and shall not be used in the construction of any of
its terms.
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to Warrant
to be signed by its duly authorized officers effective as of May 7, 1997.
SOUTHHAMPTON ENTERPRISES
CORP., A British Columbia
(Canada) Corporation
By: /s/ L. Xxxxxx Xxxxxx (SEAL)
L. Xxxxxx Xxxxxx, President
and Chief Executive Officer
AGREED AND ACCEPTED:
LASALLE BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxx (SEAL)
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
