AMENDMENT TO
WARRANT AGREEMENT
This AMENDMENT TO WARRANT AGREEMENT (this "AMENDMENT") is
dated as of November 5, 1999 and entered into by and among XXX.Xxxxxxxx
Corporation, a Delaware corporation (the "COMPANY") and ChaseMellon Shareholder
Services, L.L.C., as warrant agent ("WARRANT AGENT"), and is made with reference
to that certain Warrant Agreement dated as of June 18, 1999 by and among
XXX.Xxxxxxxx Corporation (formerly The XxxXxxx-Xxxxxxxxxx Corporation) and
ChaseMellon Shareholder Services, L.L.C. (as successor to XXX.Xxxxxxxx
Corporation, the initial warrant agent) (the "WARRANT AGREEMENT"). Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Warrant Agreement.
WITNESSETH:
WHEREAS, pursuant to a letter agreement dated October 18,
1999, XXX.Xxxxxxxx Corporation resigned as warrant agent under the Warrant
Agreement and appointed ChaseMellon Shareholder Services, L.L.C. as its
successor;
WHEREAS, Company and Warrant Agent desire to amend certain
provisions contained in Sections 17 and 20 of the Warrant Agreeement; and
WHEREAS, pursuant to Section 21 of the Warrant Agreement,
Dendron Technology B.V. and Fronos Technology B.V., the Holders of all of the
issued and outstanding Warrants under the Warrant Agreement, have consented to
the amendments contained herein, as noted on the signature pages hereto.
NOW, THEREFORE, in consideration of the foregoing recitals
which are made a part of this Amendment and for the purpose of defining the
terms and provisions of the Warrant Agreement, the Company and Warrant Agent
hereby agree as follows:
SECTION 1. AMENDMENTS TO THE WARRANT AGREEMENT
1.1 AMENDMENT TO SUBSECTION 17.5: OFFICER'S CERTIFICATE. Subsection 17.5 of
the Warrant Agreement is hereby amended by deleting it in its entirety and
inserting the following in lieu thereof:
"Whenever in the performance of its duties under this Agreement the
Warrant Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any Vice President,
the Chief Financial Officer or the Secretary of the Company and
delivered to the Warrant Agent; and such certificate shall be full
authorization and protection to the Warrant Agent and the Warrant Agent
shall incur no liability for or in respect of any action taken,
suffered or omitted in good faith by it under the provisions of this
Agreement in reliance upon such certificate."
1.2 AMENDMENT TO SUBSECTION 17.6: COMPENSATION, REIMBURSEMENT AND
INDEMNIFICATION. Subsection 17.6 of the Warrant Agreement is hereby amended by
deleting it in its entirety and inserting the following in lieu thereof:
"The Company agrees to pay the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent in the performance of
its duties under this Agreement, to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind
and nature reasonably incurred by the Warrant Agent in the performance
of its duties under this Agreement including its reasonable expenses
and counsel fees. The Company also agrees to indemnify the Warrant
Agent and save it harmless against any and all losses and liabilities,
including judgments, costs and reasonable counsel fees, for any action
taken, suffered or omitted by the Warrant Agent in the performance of
its duties under this Agreement except as a result of the Warrant
Agent's gross negligence or willful misconduct, as determined by a
final, non-appealable order, judgment, decree or ruling of a court of
competent jurisdiction. The indemnity provided herein shall survive the
termination of this Agreement and the termination and expiration of the
Warrants. The costs and expenses incurred in enforcing this right of
indemnification shall be paid by the Company. Anything to the contrary
notwithstanding, in no event shall the Warrant Agent be liable for
special, punitive, indirect, consequential or incidental loss or damage
of any kind whatsoever (including lost profits), even if the Warrant
Agent has been advised of the likelihood of such loss or damage. Any
liability of the Warrant Agent under this Agreement, except in the
event of the Warrant Agent's gross negligence or willful misconduct, as
determined by a final, non-appealable order, judgment, decree or ruling
of a court of competent jurisdiction, will be limited to the amount of
fees paid by the Company to the Warrant Agent."
1.3 AMENDMENT TO SUBSECTION 17.9: SOLEY AS AGENT. Subsection 17.9 of the
Warrant Agreement is hereby amended by deleting it in its entirety and inserting
the following in lieu thereof:
"The Warrant Agent shall act hereunder solely as agent, and its duties
shall be determined solely by the provisions hereof. The Warrant Agent
shall not be liable for anything that it may do or refrain from doing
in connection with this Agreement except for its own gross negligence
or willful misconduct, as determined by a final, non-appealable order,
judgment, decree or ruling of a court of competent jurisdiction."
1.4 AMENDMENT TO SECTION 20: NOTICES. Section 20 of the Warrant Agreement
is hereby amended by deleting it in its entirety and inserting the following in
lieu thereof:
"Any notice pursuant to this Agreement by the Company or by the Holder
of any Warrant to the Warrant Agent, or by the Warrant Agent or by the
Holder of any Warrant to the Company, shall be in writing and shall be
deemed to have been duly given if delivered or mailed by certified
mail, return receipt requested, (a) if to the Company, to XXX.Xxxxxxxx
Corporation, 000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Chief Financial Officer and, (b) if to the Warrant Agent, to
ChaseMellon Shareholder Services, L.L.C., 000 Xxxxx Xxxx Xxxxxx, Xxxxxx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxx XxXxxxx. Each
party hereto may from time to time change the address to which notices
to it are to be delivered or mailed hereunder by notice in writing to
the other party.
Any notice mailed pursuant to this Agreement by the Company or the
Warrant Agent to the Holders of Warrants shall be in writing and shall
be deemed to have been duly given if mailed by first-class mail,
postage prepaid, to such Holders at their respective addresses on the
Warrant Register of the Warrant Agent."
SECTION 2. COUNTERPARTS
This 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.
SECTION 3. RATIFICATIONS; REFERENCES
Except as expressly amended by this Amendment, the Warrant Agreement
shall continue to be, and shall remain, unaltered and in full force and effect
in accordance with its terms. All references in the Warrant Agreement to the
"Agreement" shall be to the Warrant Agreement, as amended by this Amendment.
SECTION 4. SUCCESSORS AND ASSIGNS
The terms and provisions of this Amendment shall be binding upon and
inure to the benefits of the Company and the Warrant Agent and there respective
successors and assigns.
SECTION 5. APPLICABLE LAW
Each Warrant issued under the Agreement, as amended by this
Amendment, shall be deemed to be a contract made under the internal laws of the
State of California (without preference to conflicts of law principles) and for
all purposes shall be construed in accordance with the laws of said State;
except that all provisions regarding the rights, duties and obligations of the
Warrant Agent shall be governed and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such State.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
XXX.XXXXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Chief Financial Officer
and Secretary
Attest:
/s/ Xxx Xxxxx
---------------------------
Title: Vice President and General
Manager of Xxxxxxxxxxx-x.xxx
Division
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Warrant Agent
By: /s/ Xxxx Xxx XxXxxxx
--------------------------------
Title: Relationship Manager
Attest:
/s/ [ILLEGIBLE]
----------------------------
Title: Assistant Vice President
The terms of this Amendment are consented to by the Holders of the Warrants.
DENDRON TECHNOLOGY, B.V.
By: /s/ Nearchos Irinarchos
-----------------------
Title: Director
FRONOS TECHNOLOGY, B.V.
By: /s/ Nearchos Irinarchos
-----------------------
Title: Director
