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EXHIBIT 4.1(e)
AMENDMENT NO. 1 TO WARRANT AGREEMENT
AMENDMENT (this "Amendment"), dated as of January 28, 2000, to the
Warrant Agreement, dated as of February 18, 1998 (the "Agreement"), between
Xxxxxx Media Corp., a Delaware corporation and now known as Next Generation
Network, Inc. (the "Company"), and United States Trust Company of New York, a
New York banking corporation, as Warrant Agent (the "Warrant Agent").
WITNESSETH:
WHEREAS, the Company proposes to amend the Agreement;
WHEREAS, the Company has obtained the consents of the Requisite Holders
(as defined in the Agreement) with respect to amending the Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein and other good and valuable consideration, the
parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined in
this Amendment are used herein as defined in the Agreement.
SECTION 2. Amendment to the Agreement. The Agreement is hereby amended
effective as of the date hereof as follows:
Sections 12(a) and 12(b) are amended by adding the underscored and bold
language below and by deleting the crossed out language below.
SECTION 12. Adjustment of Number of Warrant Shares Issuable.
The number of shares of Common Stock issuable upon the exercise of each
Warrant (the "Exercise Rate") is subject to adjustment from time to
time upon the occurrence of the events enumerated in this Section 12.
The Exercise Rate shall initially be one.
(a) Adjustment for Change in Capital Stock. If the
Company:
(1) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock or other capital
stock of the Company; and
(2) subdivides, combines or reclassifies its
outstanding shares of Common Stock;
then the Exercise Rate in effect immediately prior to such
action shall be proportionately adjusted so that the holder of any
Warrant hereafter exercised may receive the aggregate number and kind
of shares of capital stock of the Company which such holder would
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have owned immediately following such action if such Warrant had been
exercised immediately prior to such action; provided, however, that
notwithstanding the foregoing, upon the occurrence of an event
described in any of paragraphs (1) or (2) above, which otherwise would
have given rise to an adjustment, no adjustment shall be made if the
Company includes the holders of Warrants in such distribution pro rata
to the number of shares of Common Stock issued and outstanding (after
giving effect to the Warrant Shares as if they were issued and
outstanding).
The adjustment shall become effective immediately after the
"Time of Determination," which shall be: (a) in the case of a dividend
or distribution to holders of Common Stock, the record date for
determining the holders of shares Common Stock eligible to receive such
dividend or distribution; AND (b) in the case of a subdivision,
combination or reclassification described in subparagraph (a)(2) above,
the effective date hereof.
If after an adjustment a holder of a Warrant upon exercise of
it may receive shares of two or more classes of capital stock of the
Company, the Board of Directors of the Company shall determine the
allocation of the adjusted Exercise Price between the classes of
capital stock. After such allocation, the exercise privilege and the
Exercise Price of each class of capital stock shall thereafter be
subject to adjustment on terms comparable to those applicable to Common
Stock in this Section.
Such adjustment shall be made successively whenever any event
listed above shall occur.
(b) INTENTIONALLY DELETED.
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Section 12(e) of the Warrant Agreement is amended by adding the
underscored and bold language below and by deleting the crossed out language
below.
(e) INTENTIONALLY DELETED.
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SECTION 3. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 4. Headings. The headings of this Amendment are for the
purposes of reference only and shall not affect the construction of, or
be taken into consideration in interpreting, this Amendment.
SECTION 5. Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but which
taken together shall constitute one agreement.
SECTION 6. The Warrant Agent. The Warrant Agent is not responsible in
any manner whatsoever for or in respect of the validity or
sufficiency of this Amendment or for or in respect of the recitals contained
herein, all of which are made solely by the Company.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment
to be duly executed as of the date and year first written above.
NEXT GENERATION NETWORK, INC.
By:______________________________
Name:____________________________
Title:___________________________
UNITED STATES TRUST COMPANY OF NEW
YORK, as Warrant Agent
By:______________________________
Name:____________________________
Title:___________________________
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