SECOND AMENDMENT Dated as of September 17, 2007 to WARRANT AGREEMENT Dated as of December 30, 2005 between IDLEAIRE TECHNOLOGIES CORPORATION and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Warrant Agent Warrants to Purchase Shares of Common Stock
Exhibit 10.2
SECOND AMENDMENT
Dated as of September 17, 2007
Dated as of September 17, 2007
to
WARRANT AGREEMENT
Dated as of December 30, 2005
Dated as of December 30, 2005
between
Warrants to Purchase Shares of Common Stock
This SECOND AMENDMENT TO THE WARRANT AGREEMENT (the “Warrant Amendment”), dated as of
September 17, 2007, is entered into by and among IDLEAIRE TECHNOLOGIES CORPORATION, a Delaware
corporation (the “Company”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association, as Warrant Agent (the “Warrant Agent”).
Preliminary Statements
A. The Company and the Warrant Agent entered into a Warrant Agreement, dated as of December
30, 2005, as amended (the “Warrant Agreement”), pursuant to which the Company issued to the holders
of certain notes of the Company (the “Holders”) 320,000 warrants (the “Warrants”) to purchase
shares of common stock representing 30% of the Company’s Common Stock on a fully-diluted basis (the
“Warrant Shares”). Capitalized terms used in this Warrant Amendment but not otherwise defined
herein have the meanings ascribed to them in the Warrant Agreement and in the Warrants.
B. Section 19 of the Warrant Agreement provides that the Warrant Agreement may be amended with
the consent of the Holders of at least a majority of the Warrants then outstanding (“Requisite
Consents”).
C. The Company desires and has requested the Warrant Agent to join with it in entering into
this Warrant Amendment for the purpose of amending the Warrant Agreement in certain respects as
permitted by Section 19 of the Warrant Agreement.
D. The execution and delivery of this Warrant Amendment has been authorized by the Board of
Directors of the Company.
E. The Company circulated a Consent Solicitation Statement dated August 15, 2007, requesting
that the Holders as of the record date of August 14, 2007 give their written consent to implement
certain amendments to the Warrant Agreement embodied in this Warrant Amendment.
F. The Company has received the Requisite Consents and has satisfied all other conditions
precedent, if any, provided under the Warrant Agreement to enable the Company and the Warrant Agent
to enter into this Warrant Amendment.
NOW, THEREFORE, in consideration of the foregoing and of other valuable consideration, receipt
of which is hereby acknowledged, the parties hereby agree as set forth in this Warrant Amendment.
1. Amendment of the Warrant Agreement. The Warrant Agreement is hereby amended as follows:
(a) Amendment to Section 1. Section 1 of the Warrant Agreement is hereby amended to
add the following definitions:
“Qualified Public Offering” means the closing on or before June 30, 2008 of the
initial underwritten public offering of Common Stock pursuant to an effective
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registration statement under the Securities Act of 1933, as amended, in which the
aggregate net proceeds to the Company from such offering (before underwriters discounts and
commissions) are not less than $100 million.
(b) Addition of New Section 11A. The Warrant Agreement is hereby amended to add a
new Section 11A as follows:
“Section 11A. Lock-Up on Qualified Public Offering.
(a) The holders of any Warrant outstanding at the time of a Qualified Public
Offering will not, during the period ending 180 days after the date of the
prospectus relating to the Qualified Public Offering (the “Prospectus”), (1) offer,
pledge, announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (including without limitation, Common
Stock which may be deemed to be beneficially owned by the undersigned in accordance
with the rules and regulations of the Securities and Exchange Commission and
securities which may be issued upon exercise of a stock option or warrant) or (2)
enter into any swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise. In addition, the
undersigned agrees that, without the prior written consent of the underwriters of
the Qualified Public Offering, it will not, during the period ending 180 days after
the date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible into
or exercisable or exchangeable for Common Stock. Notwithstanding the foregoing, if
(1) during the last 17 days of the 180-day restricted period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or (2) prior to the expiration of the 180-day restricted period, the Company
announces that it will release earnings results during the 16-day period beginning
on the last day of the 180-day period, the restrictions imposed by this provision
shall continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or material
event.
(b) In furtherance of the foregoing, the Company, and any duly appointed transfer agent for
the registration or transfer of the securities described herein, are hereby authorized to decline
to make any transfer of securities if such transfer would constitute a violation or breach of this
Agreement.”
2. Defined Terms. For all purposes of this Warrant Amendment, except as otherwise defined or
unless the context otherwise requires, terms used herein in capitalized form and defined in the
Warrant Agreement shall have the meanings specified in the Warrant Agreement.
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3. Warrant Agreement. Except as amended hereby, the Warrant Agreement is in all respects
ratified and confirmed and all the terms thereof shall remain in full force and effect. This
Warrant Amendment shall form a part of the Warrant Agreement for all purposes, and every holder of
the Warrants heretofore or hereafter authenticated and delivered under the Warrant Agreement shall
be bound by the Warrant Agreement as amended hereby. In the case of conflict between the Warrant
Agreement and this Warrant Amendment, the provisions of this Warrant Amendment shall control.
4. Governing Law. This Warrant Amendment will be governed by, and construed in accordance
with, the laws of the state of New York.
5. Successors. All agreements of the Company and the Warrant Agent in this Warrant Amendment
and the Warrants shall bind their respective successors.
6. Counterparts. The parties may sign any number of copies of this Warrant Amendment. Each
signed copy shall be an original, but all of them together shall represent the same agreement.
7. Severability. In case any one or more of the provisions in this Warrant Amendment or in
the Warrants shall be held invalid, illegal or unenforceable, in any respect for any reason, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions shall not in any way be affected or impaired thereby, it being intended that
all of the provisions hereof shall be enforceable to the full extent permitted by law.
8. Warrant Agent Disclaimer. The Warrant Agent makes no representation as to the validity or
sufficiency of this Warrant Amendment. The recitals to this Warrant Amendment are the statements
of the Company and the Warrant Agent shall have no responsibility for such recitals.
[Signatures set forth on following page.]
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IN WITNESS WHEREOF, the parties have caused this Warrant Amendment to be duly executed by and
through their respective officers, thereunto duly authorized, all as of the date and year first
written above.
| IDLEAIRE TECHNOLOGIES CORPORATION | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Warrant Agent |
||||
| By: | /s/ Xxxx X. Xxxxxxxxx | |||
| Name: Xxxx X. Xxxxxxxxx | ||||
| Title: Vice President | ||||
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