Exhibit 4.7
CONSENT TO EQUITY SALES
THIS CONSENT TO EQUITY SALES (this "Consent") is made and delivered by
HEARST COMMUNICATIONS, INC. (the "Undersigned") to and for the benefit of
XXXXX.XXX CORPORATION, a Delaware corporation (the "Company") as of this 31st
day of July 2007.
RECITALS
This Consent is made with reference to the following facts and objectives:
A. The Undersigned and the Company entered into a Purchase Agreement dated
February 22, 2007 and an Amendment No. 1 to Purchase Agreement dated March
29, 2007 (together, the "Agreement").
B. On July 9, 2007 the Company's Registration Statement on Form S-3
registering for resale the shares issued in connection with the Agreement
was made effective by the SEC (the "Effective Date").
C. Pursuant to Section 7.9 of the Agreement the Company cannot, without the
written consent of the Undersigned, issue shares of its common stock or
common stock equivalents for a period of 90 days after the Effective Date.
D. The Company desires to obtain the Undersigned's written consent in order
to have flexibility to effect possible financing transactions pursuant to
which the Company would be permitted to issue common stock and common stock
equivalents during the time period described in Section 7.9 of the
Agreement (the "Equity Transactions"), it being acknowledged by the Company
that the Undersigned has no knowledge of any specific transaction or
financing plans that the Company may be contemplating.
E. Pursuant to the Agreement, the Company issued to the Undersigned (i) a
warrant to purchase an aggregate of 597,015 shares of common stock of the
Company at an exercise price (subject to adjustment) of $4.82 per share
(the "Series A Warrant") and (ii) a warrant to purchase an aggregate of
597,015 shares of common stock of the Company at an exercise price (subject
to adjustment) of $5.63 per share (the "Series B Warrant" and together with
the Series A Warrant, the "Warrants").
F. In consideration of the Undersigned's consent to any Equity
Transactions, the Company desires to reduce the exercise price per share of
each of the Warrants by fifty cents ($0.50.) so that the Series A Warrant
would have an exercise price of $4.32 per share and the Series B Warrant
would have an exercise price of $5.13 per share.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing recitals and the
respective promises and agreements of the parties set forth herein, the
parties agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed thereto in the
Warrants.
2. CONSENT. Provided that the Company files a Form 8-K disclosing the
terms of this Consent no later than 5:00 p.m., New York time, on
August 1, 2007, the Undersigned hereby waives (i) the application of
Section 7.9 of the Agreement to the extent that such section would
prohibit the Company from engaging in any Equity Transactions during
the 90 day period following the Effective Date and (ii) its Right of
First Refusal pursuant to Section 7.12 of the Agreement only with
respect to any Equity Transaction that occurs during the 90 day period
following the Effective Date.
3. WARRANT PRICE. The Company agrees that the Warrants are hereby amended
so that the exercise price per share of the Series A Warrant is
decreased to $4.32 per share and the exercise price per share of the
Series B Warrant is decreased to $5.13 per share. The Company agrees
that the Undersigned may at any time deliver to the Company any
warrant that may have been issued to the Undersigned in exchange for
replacement warrants reflecting the new exercise prices without any
charge to the Undersigned.
4. MISCELLANEOUS. Except as modified and amended pursuant to this
Consent, the Agreement and the Warrants shall remain in full force and
effect. This Consent may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument. This Consent will become
binding when one or more counterparts hereof, individually or taken
together, will bear the signatures of all the parties reflected hereon
as signatories.
5. GOVERNING LAW. This Consent shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to
the choice of law principles thereof.
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IN WITNESS WHEREOF, the parties have executed this Consent as of the day
and year first above written.
XXXXX.XXX CORPORATION
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: CFO
HEARST COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: President Hearst Interactive Media
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