THIRD AMENDED WARRANT AGREEMENT
THIRD AMENDED WARRANT AGREEMENT, dated as of April 10, 2001 (the "Third
Amendment"), between XXXXXXXXXX.XXX, INC., a Delaware corporation having an
address at 00000 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").
WHEREAS, the Company proposes to decrease the Warrant Price, the
purpose for which is to encourage the exercise of outstanding Warrants and to
permit the Company 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 the decrease of the Warrant Price, the
Company hereby enters into this Third Amendment which Third Amendment amends the
Warrant Agreement, dated December 11, 1992, between the Company and American
Stock Transfer & Trust Company (the "Original Agreement"), as previously amended
by (i) the Amended Warrant Agreement, dated as of November 30, 1999, between the
Company and American Stock Transfer and Trust Company (the "First Amendment")
and (ii) the Second Amended Warrant Agreement, dated as of November 30, 2000,
between the Company and American Stock Transfer & Trust Company (the "Second
Amendment", and collectively with the Original Agreement and the First
Amendment, the "Warrant Agreement").
NOW, THEREFORE, in consideration of the forgoing and for the purposes
of amending the terms and provisions of the exercise of the Warrants, the
Company and the Warrant Agent hereby agree as follows:
1. Definitions. All terms not expressly defined herein shall the have the
same meanings as set forth in the Warrant Agreement.
2. Amendment to Section 9 of the Warrant Agreement. Section 9 of the
Warrant Agreement is hereby amended to read as follows:
"9. Warrant Price. The price per share at which Warrant Shares
shall be purchasable upon exercise of Warrants (the "Warrant
Price") shall be $2.00 per share, subject to adjustment
pursuant to a new Section 10 hereof."
3. Provisions Not Amended. All terms of the Warrant Agreement not
otherwise amended hereby shall continue to remain in full force and effect.
4. Successors. All the covenants and provisions of this Third Amendment 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.
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5. Applicable Law. This Third Amendment 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.
6. Benefits of this Amended Warrant Agreement. Nothing in this Third
Amendment 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 Third Amendment. This Third Amendment shall be for the sole
and exclusive benefit of the Company, the Warrant Agent and the Holders of the
Warrants.
7. Counterparts. This Third Amendment 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.
8. Captions. The captions of the sections and subsections of this Third
Amendment have been inserted for convenience only and shall have no substantive
effect.
IN WITNESS WHEREOF, the undersigned have duly executed this Third
Amendment 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
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Xxxxxxx X. Xxxxxx
Vice President
