EXHIBIT 4.10
AMENDMENT TO WARRANT AGREEMENT
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AMENDMENT dated October __, 1996 to the Warrant Agreement dated May 9, 1996
("Warrant Agreement") by and among Digital Video Systems, Inc., a Delaware
corporation ("Company"), American Stock Transfer & Trust Company, as Warrant
Agent ("Warrant Agent"), and X.X. Xxxxx Investment Banking Corp., a New York
corporation ("Xxxxx"). All terms used in this Amendment, unless otherwise
defined herein, shall have such meaning as ascribed to them in the Warrant
Agreement.
WHEREAS, in connection with (i) a public offering ("Secondary Offering") of
up to 26,450 units ("Units"), each unit consisting of _____ units (the "IPO
Units"), each IPO Unit consisting of one share of the Company's Common Stock,
$.0001 par value ("Class A Common Stock"), one redeemable Class A Warrant
("Class A Warrant") and one redeemable Class B Warrant ("Class B Warrant")
pursuant to an underwriting agreement (the "Secondary Underwriting Agreement")
dated October __, 1996 between the Company and Xxxxx and (ii) the issuance to
Xxxxx or its designees of Unit Purchase Options to purchase an aggregate of
2,300 additional Units, to be dated as of October __, 1996 (the "Secondary Unit
Purchase Options"), the Company may issue up to an additional ______ Class A
Warrants and ______ Class B Warrants; and
WHEREAS, each Class A Warrant entitles the Registered Holder thereof to
purchase one share of Class A Common Stock and one Class B Warrant, and
accordingly, the Company may issue up to an additional ________ Class B
Warrants; and
WHEREAS, in connection with the Secondary Offering, the parties hereto
desire to amend certain provisions of the Warrant Agreement as set forth in this
Agreement:
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties intending to be legally bound, hereby agree
as follows:
1. Amendments to Warrant Agreement. Upon the effective date of the
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registration statement relating to the Secondary Offering, the Warrant Agreement
shall be amended as follows:
(a) The number of Class A Warrants subject to issuance under the
Warrant Agreement is hereby increased to ______ Class A Warrants.
(b) The number of Class B Warrants subject to issuance under the
Warrant Agreement is hereby increased to______ Class B Warrants.
(c) Subsection (d) of Section 1 of the Warrant Agreement shall be
deleted in their entirety and replaced with the following new subsection (d):
"(d) "Initial Warrant Exercise Date" shall mean as to each Class
A Warrant and Class B Warrant the date of issuance of such Class A
Warrant or Class B Warrant, as the case may be."
(d) Subsections (e) and (g) of Section 2 of the Warrant Agreement
shall be deleted in their entirety and replaced with the following new
subsections (e) and (g):
"(e) From time to time, up to the Warrant Expiration Date, the
Transfer Agent shall countersign and deliver stock certificates in
required whole number denominations representing up to an aggregate of
_______ shares of Class A Common Stock, subject to adjustment as
described herein, upon the exercise of Warrants in accordance with
this Agreement.
(g) Pursuant to the terms of the Unit Purchase Options and the
Secondary Unit Purchase Options, Xxxxx or its designees may purchase
Units, which include up to ______ Class A Warrants and _____ Class B
Warrants. Notwithstanding anything to the contrary contained herein,
the Warrants underlying the Unit Purchase Options and the Secondary
Unit Purchase Options shall not be subject to redemption by the
Company except under the terms and conditions set forth in the Unit
Purchase Options and Secondary Unit Purchase Options, as the case may
be."
(e) Subsection (b) of Section 4 of the Warrant Agreement shall be
deleted in its entirety and replaced with the following new subsection (b):
"(b) If, at the Exercise Date, in respect of the exercise of any
Warrants (i) the market price of the Company's Class A Common Stock is
greater than the then Purchase Price of the Warrant, (ii) the exercise
of the Warrant was solicited by a member of the National Association
of Securities Dealers, Inc. ("NASD") as designated in writing on the
Warrant Certificate Subscription Form, (iii) the Warrant was not held
in a discretionary account, (iv) disclosure of compensation
arrangements was made both at the time of the original offering and at
the time of exercise; and (v) the solicitation of the exercise of the
Warrant was not in violation of Rule 10b-6 (as such rule or any
successor rule may be in effect as of such time of exercise)
promulgated under the Securities
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Exchange Act of 1934, then the Warrant Agent, simultaneously with the
distribution of the Warrant Proceeds to the Company shall, on behalf
of the Company, pay from the Warrant Proceeds, a fee of 5% with
respect to the Class A Warrants and 8% with respect to the Class B
Warrants (the "Xxxxx Fee") of the Purchase Price to Xxxxx (of which a
portion may be reallowed by Xxxxx to the dealer who solicited the
exercise, which may also be Xxxxx or X.X. Xxxxx & Co., Inc.);
provided, however, (i) no Xxxxx Fee will be payable prior to May 9,
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1997, and (ii) in the event any Warrants are exercised after May 9,
1997 but prior to October __, 1997, Xxxxx shall only be entitled to
receive the Xxxxx Fee with respect to the 8,750,000 Class A Warrants
and 14,000,000 Class B Warrants (which include the 8,750,000 Class B
Warrants that may be issued on exercise of the Class A Warrants). For
purposes of determining which Warrants have been exercised, it will be
assumed that the first 8,750,000 Class A Warrants and 14,000,000 Class
B Warrants exercised were those issued in connection with the
Company's initial public offering in May 1996. In the event the Xxxxx
Fee is not received within five days of the date on which the Company
receives Warrant Proceeds, then the Xxxxx Fee shall begin accruing
interest at an annual rate of prime plus four (4)%, payable by the
Company to Xxxxx at the time Xxxxx receives the Xxxxx Fee. Within five
days after exercise the Warrant Agent shall send to Xxxxx a copy of
the reverse side of each Warrant exercised. Xxxxx shall reimburse the
Warrant Agent, upon request, for its reasonable expenses relating to
compliance with this section 4(b). In addition, Xxxxx and the Company
may at any time during business hours, examine the records of the
Warrant Agent, including its ledger of original Warrant Certificates
returned to the Warrant Agent upon exercise of Warrants. The
provisions of this paragraph may not be modified, amended or deleted
without the prior written consent of Xxxxx."
2. Full Force and Effect. Except as provided herein, all other terms and
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provisions of the Warrant Agreement shall remain in full force and effect.
3. Counterparts. This Agreement may be executed in one or more
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counterparts, which taken together shall constitute a single document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
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DIGITAL VIDEO SYSTEMS, INC.
By:___________________________________________
Xxxxxx Xxxxxxxxx, President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By:___________________________________________
X.X. XXXXX INVESTMENT BANKING CORP.
By:___________________________________________
Xxxxxx X. Xxxx, Vice Chairman and
General Counsel
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EXTENSION AGREEMENT
Agreement dated this ___ day of October, 1996 between Digital Video
Systems, Inc., a Delaware corporation (the "Company") and X.X. Xxxxx Investment
Banking Corp. ("Xxxxx").
WHEREAS, the Company and Xxxxx are parties to an agreement dated May 14,
1996 regarding mergers, acquisitions and similar transactions (the "M/A
Agreement"); and
WHEREAS, on the date hereof the Company has completed an underwritten
public offering through Xxxxx, as underwriter (the "Offering"); and
WHEREAS, in connection with, and as a condition to, the Offering, the
Company has agreed to extend the M/A Agreement.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
hereby agree as follows:
Extension. The M/A Agreement shall expire on October __, 2001, subject to
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the provisions thereof. Except as set forth herein, the M/A Agreement shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
DIGITAL VIDEO SYSTEMS, INC. X.X. XXXXX INVESTMENT BANKING
CORP.
By:_________________________ By:_________________________________
Xxxxxx Xxxxxxxxx Xxxxxx X. Xxxx, Vice Chairman and
General Counsel
