EXHIBIT 10.35
FIRST AMENDMENT TO STOCK PURCHASE WARRANT
This First Amendment to Stock Purchase Warrant is entered into as of
this 19th day of December, 2002, by and between xXxxx.xxx, Inc., a Delaware
corporation (the "Company"), and Xxxxxxxx & Xxxxxxxx LLP (the "Holder").
WITNESSETH
WHEREAS, the Company issued the Stock Purchase Warrant to the Holder on
November 9, 2000 (the "Original Warrant");
WHEREAS, on the date hereof, the Company entered into an Agreement and
Plan of Merger (the "Merger Agreement") with USA Interactive and Geffen
Acquisition Sub Inc., and, for purposes of Section 7.8 and Articles X and XI
thereof, Xxxxxxxx Xxx Xxxxxx and Atlas Trust Company, as trustee of the Internet
Investments Inc. Employee Shares Trust; and
WHEREAS, the Company and the Holder desire to amend the Original
Warrant to provide for the Warrant to convert into the right to receive shares
of Parent Common Stock (as defined in the Merger Agreement) upon the Effective
Time (as defined in the Merger Agreement).
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Amendment of Original Warrant.
(a) The first sentence of Section 1.3(b) is hereby deleted in
its entirety and the following is inserted in lieu therof:
"Payment of the aggregate Warrant Price may be made (i) in cash or by
cashier's or bank check, (ii) if Stock is at the time traded on a
national securities exchange or the NASDAQ National Market, by making a
Cashless Exercise (as defined herein), or (iii) at the Effective Time,
the holder of this Warrant shall be entitled to receive a number of
shares of Parent Common Stock equal to the remainder of (A) (I) the
Share Exchange Ratio multiplied by (II) the aggregate number of Shares
underlying this Warrant minus (B) (I) the aggregate exercise price of
this Warrant divided by (II) the Signing Price, with a cash payment in
lieu of any fractional Share. The capitalized terms in clause (iii) of
the preceding sentence shall have the meanings ascribed to them in the
Agreement and Plan of Merger, dated as of December 19, 2002, among USA
Interactive, Geffen Acquisition Sub Inc. and xXxxx.xxx, Inc., and, for
purposes of Section 7.8 and Articles X and XI thereof, Xxxxxxxx Xxx
Xxxxxx and Atlas Trust Company, as trustee of the Internet Investments
Inc. Employee Shares Trust. Notwithstanding any other provision of this
Warrant, this Warrant shall terminate immediately upon the conversion
of this Warrant into the right to receive shares of Parent Common Stock
pursuant to clause (iii) of the first sentence of this Section 1.3(b)."
(b) The form of election to exercise attached as Exhibit A to
the Original Warrant is hereby deleted in its entirety and the form of election
to exercise attached as Exhibit A hereto is inserted in lieu thereof.
2. Amendment Only. As amended hereby, the Original Warrant is hereby
confirmed to be in full force and effect.
3. Counterparts. This First Amendment to Stock Purchase Warrant may be
executed in counterparts, and each counterpart shall have the same force and
effect as an original and shall constitute an effective, binding agreement on
the part of each of the undersigned.
6. Entire Agreement; Amendment. This First Amendment to Stock Purchase
Warrant constitutes the entire agreement of the parties hereto pertaining to the
subject matter hereof. This First Amendment to Stock Purchase Warrant shall not
be amended, modified or supplemented except by a written instrument signed by an
authorized representative of each of the parties hereto.
7. Governing Law; Consent to Jurisdiction. This First Amendment to
Stock Purchase Warrant shall be governed by and construed in accordance with the
internal laws of the State of Delaware without giving effect to any choice or
conflict of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of laws of any jurisdictions
other than those of the State of Delaware. Each of the parties to this First
Amendment to Stock Purchase Warrant (i) consents to submit itself to the
personal jurisdiction of any state or federal court sitting in the State of
Delaware in any action or proceeding arising out of or relating to this First
Amendment to Stock Purchase Warrant, (ii) agrees that all claims in respect of
such action or proceeding may be heard and determined in any such court, (iii)
agrees that it shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and (iv) agrees not to
bring any action or proceeding arising out of or relating to this First
Amendment to Stock Purchase Warrant in any other court. Each of the parties
hereto waives any defense of inconvenient forum to the maintenance of any action
or proceeding so brought and waives any bond, surety or other security that
might be required of the other party with respect thereto.
IN WITNESS WHEREOF, the parties have duly executed this First Amendment
to Stock Purchase Warrant as of the date first above written.
XXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Chief Operating Officer
XXXXXXXX & XXXXXXXX LLP
By: /s/ XX Xxxxxx
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Name: Xxxxxxx X Xxxxxx
Title: Chief Financial Officer
Exhibit A
To: XXXXX.XXX, INC.
ELECTION TO EXERCISE
(check applicable box):
[ ] The undersigned hereby exercises its right to subscribe for and
purchase from XXXXX.XXX, INC., fully paid, validly issued and nonassessable
shares of Stock covered by the within Warrant and tenders payment herewith in
the amount of $__________________ in accordance with the terms thereof; or
[ ] The undersigned hereby elects to receive shares of Parent Common
Stock at the Effective Time pursuant to clause (iii) of the first sentence of
Section 1.3(b) of the within Warrant.
The undersigned requests that certificates for such shares be issued in
the name of, and delivered to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attn: XX Xxxxxx
[Holder]
By:
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Name: Xxxxxxx X Xxxxxx
Title: Chief Financial Officer
Date:
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