EXHIBIT 99.5
AMENDMENT TO COMMON STOCK PURCHASE WARRANT
This AMENDMENT to Common Stock Purchase Warrant (the "Amendment") is made
as of the 30th day of September, 1997, by and between MEDIA LOGIC, INC., a
Massachusetts corporation (the "Company"), and ACFS LIMITED PARTNERSHIP (the
"Holder").
WHEREAS the Company issued a Common Stock Purchase Warrant dated March 24,
1997 (the "Warrant") to the Holder for the right to purchase 240,000 shares of
the Common Stock of the Company;
WHEREAS, the Company and the Holder desire to amend the Warrant to reflect
certain changes in the terms of the Warrant as agreed by them.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Holder agree
as follows:
1. All capitalized terms used herein and not otherwise defined herein shall
have the same meanings herein as in the Warrant.
2. Section (j) of the definitions section of the Warrant is hereby deleted in
its entirety and replaced with the following:
(j) The term "Filing Penalty Commencement Date" means the sixth (6th)
business day after the filing of the Registration Statement with the
Securities and Exchange Commission (the "Commission").
3. The follow section is added to the definitions section of the Warrant:
(a) The term "Effectiveness Penalty Commencement Date" means the
fifth (5th) day after the Commission notifies the Company of the
Commission's willingness to declare the Registration Statement
effective.
4. Section (6) of the Warrant is hereby deleted in its entirety and replaced
with the following:
"6. Registration Statement: Timing of Filing, Effectiveness and Period of
Usability.
Subject to the provisions of Section 7 hereof, the holders of the Warrant
Shares representing a majority of such securities (assuming the exercise of all
of the then outstanding Warrants) shall have the right (a "Demand"), on one
occasion only, exercisable by written notice to the Company, to have the Company
prepare and file with the Commission a Registration Statement on Form S-3 or, if
the Company is not then eligible to use Form S-3, on Form S-1, registering
resales of the Registrable Securities by the holders from time to time through
the automated quotation system of the American Stock Exchange or the facilities
of any national securities exchange or the Nasdaq
National Market if the Common Stock is then listed or quoted thereon and in
privately-negotiated transactions. The Company shall use its best efforts (i)
to file a Registration Statement with the Commission no later than the sixth
(6th) business day following the Company's receipt, in writing, of the Demand,
and (ii) to effect as soon as practicable thereafter, the registration of the
Registrable Securities under the Securities Act.
If (i) the Registration Statement is not filed with the Commission on or
before the Filing Penalty Commencement Date, (ii) the Registration Statement is
not declared effective by the Commission on or before the Effectiveness Penalty
Commencement Date, or (iii) if at any time after the Registration Statement is
declared effective, but prior to the Expiration Date, the Warrant Shares may not
be sold pursuant to the Registration Statement for more than 30 days during any
12-month period (whether because the Registration Statement is no longer
effective, there is a material misstatement or omission in the Registration
Statement, or otherwise) (any such period in excess of such 30 days is
hereinafter referred to as an "Unavailability Period"), the Company will have
the obligation to pay penalty payments (the "Penalty Payments") at the rate of
$200 per 5,000 Warrant Shares per month following the Filing Penalty
Commencement Date or the Effectiveness Penalty Commencement Date, or following
the commencement of the Unavailability Period, as the case may be, until the
Registration Statement is filed, declared effective or may be used following an
Unavailability Period, as the case may be. The first Penalty Payment shall be
payable on the earlier to occur of the 30th calendar day following the Filing
Penalty Commencement Date or the Effectiveness Penalty Commencement Date, or
following the commencement of the Unavailability Period, as the case may be, or
the date the Registration Statement is filed, declared effective or may be used
following an Unavailability Period, as the case may be. Subsequent Penalty
Payments shall be payable on each 30-day anniversary of the Filing Penalty
Commencement Date or the Effectiveness Penalty Commencement Date or following
the commencement of the Unavailability Period, as the case may be, except if the
Registration Statement shall be filed or declared effective prior thereto or may
be used following an Unavailability Period, as the case may be, in which case
the subsequent Penalty Payment shall be made concurrently with such
effectiveness or date on which the Registration Statement may be used. Any date
on which a Penalty Payment is required to be paid is referred to herein as a
"Penalty Payment Date." Penalty Payments shall be paid to the holders of record
of the Warrants on each Penalty Payment Date. With respect to Warrants which
have been exercised for Shares prior to a Penalty Payment Date, the Penalty
Payment with respect to such exercised Warrants shall be paid to the holders on
such Penalty Payment Date of the Warrants Shares. The Company shall have the
option to pay Penalty Payments in respect of the first two Penalty Payment Dates
either in cash or in shares of Common Stock which shall be registered pursuant
to the Registration Statement (the "Penalty Shares") together with the Warrant
Shares, and Penalty Payments with respect to all subsequent Penalty Payment
Dates shall be paid by the Company solely in cash. The Penalty Payment shall
accrue and be prorated for partial months, assuming a 360-day year of twelve
30-day months. The number of Penalty Shares to be issued in payment of any
Penalty Payment shall be determined by dividing the amount of such Penalty
Payment by the average price of the Common Stock over the five (5) trading days
preceding the applicable Penalty Payment Date.
The Company will use its best efforts (i) to keep the Registration
Statement continuously effective and usable for resale of Registrable Securities
until the Expiration Date or such shorter period which will terminate when all
Warrant Shares and Penalty Shares have ceased to be
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Registrable Securities, and (ii) to file with the Securities and Exchange
Commission on a timely basis all reports, notices and otherwise as the Company
may be required to file under the Securities Exchange Act of 1934, as amended."
5. Section 20 of the Warrant is hereby deleted in its entirety and replaced
with the following:
"20. Notices, etc. All notices, requests, consents and other
communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a
party may designate by notice hereunder, and shall be either (i) delivered
by hand, (ii) made by telex, telecopy or facsimile transmission, (iii) sent
by overnight courier, or (iv) sent by registered or certified mail, return
receipt requested, postage prepaid.
If to the Company:
Media Logic, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxx, Esquire
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the registered holder of this Warrant:
Such address as may have been furnished to the Company in writing by
such holder or at the address shown on such holder's Warrant.
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set
forth above, (ii) if made by telex, telecopy or facsimile transmission, at
the time that receipt thereof has been acknowledged by electronic
confirmation or otherwise, (iii) if sent by overnight courier, on the next
business day following the day such notice is delivered to the courier
service, or (iv) if sent by registered or certified mail, on the 5th
business day following the day such mailing is made."
6. Except as modified by this Amendment, the Warrant shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the
date first above written.
MEDIA LOGIC, INC.
/s/ Xxxx X'Xxxxx By: /s/ Xxxxxxx X. Xxxxx
--------------------------------- ---------------------------------
Attest
ACFS LIMITED PARTNERSHIP
/s/ By: /s/
--------------------------------- ---------------------------------
Attest
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