FIRST AMENDMENT TO
COMMON STOCK PURCHASE WARRANT AGREEMENT
This First Amendment to Common Stock Purchase Warrant Agreement, dated
as of September 30, 1999 between XXXXXXX COMMUNICATIONS CORPORATION, an Iowa
corporation (the "Company") and FIRSTAR TRUST COMPANY, as Warrant Agent (the
"Warrant Agent").
RECITALS
A. The Warrant Agent and the Company are parties to a Common Stock
Purchase Warrant Agreement dated as of October 21, 1996 (the "Agreement").
B. The Company and the Warrant Agent deem it desirable to amend
the Agreement to extend the "Warrant Expiration Date" to April 21, 2000.
C. Pursuant to Section 10 of the Agreement, the Company and the
Warrant Agent may by supplemental agreement make any changes or corrections in
the Agreement that they may deem necessary or desirable and which do not
adversely affect the interests of the holders of Warrant Certificates
AGREEMENTS
In consideration of the foregoing and the mutual covenants and
agreements contained herein and in the Agreement, and intending to be legally
bound hereby, the Warrant Agent and the Company hereby agree as follows:
1. Amendment of Section 1(b). The definition of "Warrant
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Expiration Date" in Section 1(i) of the Agreement is hereby amended to read in
its entirety as follows:
"Warrant Expiration Date" shall mean 5 p.m. (Central Time) on April 21, 2000, or
if such date shall in the State of Wisconsin be a holiday or a day on which
banks are authorized to close, then 5 p.m. (Central Time) on the next following
day which in the State of Wisconsin is not a holiday or a day on which banks are
authorized to close. Unless exercised during the Warrant Exercise Period, the
Warrants will automatically expire. The Warrants may be called for redemption
and the expiration date herefor accelerated, on the terms and conditions set
forth in sections 4(b) and 4(c) of this Agreement. If so called for redemption,
Warrant Certificate holders shall have a period of
at least 30 days after the date of the call notice within which to exercise the
Warrants. However, Warrant Certificate holders will receive the redemption
price only if such certificates are surrendered to the Corporate Office within
the redemption period (as defined below).
2. Amendment of Section 5(b). Section 5(b) of the Agreement is
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hereby amended by adding a new sentence immediately following the end thereof to
read as follows:
Notwithstanding anything herein to the contrary, the Company shall not be
obligated by this Agreement to take any action to secure any registration or
approval of the Common Stock purchasable upon the exercise of the Warrants in
any state or other jurisdiction at any time after October 21, 1999 and the
Company may refuse to issue such Common Stock upon exercise of the Warrants in
the absence of an exemption in any such state or jurisdiction.
3. Amendments of Section 8. Section 8 of the Agreement is hereby
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amended by adding a new subsection (e) to the end thereof to read as follows:
(e) Notwithstanding anything herein to the contrary, the Company shall not be
obligated to make any adjustments pursuant to this Section 8 to the Purchase
Price or the number of shares of Common Stock purchasable upon the exercise of
the Warrants for any event which occurs after October 21, 1999.
Section 8(b)(iv) is hereby amended by adding the following sentence at
the end thereof:
Any such fraction which is equal to or greater than 0.50 shall be rounded
up to a whole share and any such fraction which is less than 0.50 shall be
rounded down and eliminated.
4. Full Force and Effect. All remaining provisions of the
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Agreement remain unchanged and in full force and effect.
5. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of Wisconsin. Section
headings in this Amendment appear for convenience of reference only and shall
not be used in any interpretation of this Amendment.
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6. Binding Effect. This Amendment shall be binding upon and inure
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to the benefit of the Company, the Warrant Agent and their respective successors
and assigns, and the Registered Holders from time to time of Warrant
Certificates or any of them. Nothing in this Amendment shall be construed to
confer any right, remedy or claim upon any other person.
7. Counterparts. This Amendment may be executed in counterparts,
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which taken together shall constitute a single document.
IN WITNESS WHEREOF, the Warrant Agent and the Company have caused this
Amendment to be executed as of the date first written above by their respective
officers thereunto duly authorized.
XXXXXXX COMMUNICATIONS
CORPORATION
BY
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Xxxxxx X. Xxxxxxx
Chief Executive Officer
FIRSTAR TRUST COMPANY
BY
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Authorized Officer
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