AMENDMENT TO WARRANT AGREEMENT
AMENDMENT, (the "Amendment"), dated February 10, 1997 to the Warrant
Agreement dated January 25, 1995 (the "Warrant Agreement") by and among INFOSAFE
SYSTEMS, INC., a New York corporation (the "Company"), AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent (the "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 a private placement (the "Private
Placement") of a minimum of twenty (20) and a maximum of one hundred (100) units
("Units"), each unit consisting of units identical to those sold by the Company
in its initial public offering ("IPO") in January 1995 ("IPO Units"), each IPO
Unit consisting of one (1) share of the Company's Class A Common Stock, $.01 par
value ("Class A Common Stock"), one (1) redeemable Class A Warrant ("Class A
Warrants") and one (1) redeemable Class B Warrant ("Class B Warrants") pursuant
to an agency agreement (the "Agency Agreement") dated as of February 10, 1997
between the Company and Xxxxx and the issuance to Xxxxx or its designees of Unit
Purchase Options to purchase additional Units (the "Private Placement Unit
Purchase Options"), the Company may issue up to such number of Class A Warrants
and Class B Warrants (collectively referred to as the "Warrants") as shall be
determined in accordance with the Confidential Term Sheet relating to the
Private Placement (the "Term Sheet"); and
WHEREAS, the Company has granted Xxxxx the option to sell an
additional twenty (20) Units in the Private Placement (the "Over-allotment
Option"); and
WHEREAS, each Class A Warrant initially entitles the Registered
Holder thereof to purchase one (1) share of Class A Common Stock and one (1)
Class B Warrant, and accordingly, the Company may issue additional Class B
Warrants on exercise of the Class A Warrants; and
WHEREAS, each Class B Warrant initially entitles the Registered
Holder thereof to purchase one (1) share of Class A Common Stock; and
WHEREAS, in connection with the Private Placement, the parties
hereto desire to amend certain provisions of the Warrant Agreement as set forth
in this Amendment:
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 First Closing Date, as
defined in the Term Sheet, the Warrant Agreement shall be amended as follows:
(a) The date "January 17, 2000" as it appears in Section 1(i) of the
Warrant Agreement entitled "Warrant Expiration Date" shall be deleted and
replaced by the date "February 18, 2002."
(b) The date "January 17, 1996" as it appears in Section 8(a) of the
Warrant Agreement entitled "Redemption" shall be deleted and replace by the "the
first anniversary of the final Closing of the Private Placement."
2. Certificates. All Warrant certificates issued pursuant to the Warrant
Agreement subsequent to the date hereof, including Warrant Certificates issued
upon transfer of outstanding Warrants, shall be substantially in the form of the
amended Class A Warrant certificate and the amended Class B Warrant Certificate
attached hereto as Exhibit A and Exhibit B, respectively.
3. Amendment. This Amendment has been made pursuant to section 16(iii) of
the Warrant Agreement which permits the parties to the Warrant Agreement,
without the consent of the Holders of the Warants, to make changes in the
Warrant Agreement that they deem necessary or desirable and which shall not
adversely affect the interests of the holders of the Warrant Certificates.
4. Definitions. Any defined term used herein and not otherwise defined
shall have the meaning set forth in the Warrant Agreement.
5. Full Force and Effect. Except as provided herein, all other terms and
provisions of the Warrant Agreement shall remain in full force and effect.
6. Counterparts. This Amendment may be executed in one or more
counterparts, which taken together shall constitute a single document.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
INFOSAFE SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Authorized Officer
AMERICAN STOCK TRANSFER & TRUST
COMPANY
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Authorized Officer
X.X. XXXXX INVESTMENT BANKING CORP.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx, Vice Chairman and
General Counsel
-3-
EXHIBIT A
[FORM OF FACE OF CLASS A WARRANT CERTIFICATE]
No. AW Class A Warrants
VOID AFTER __________, 2002
CLASS A WARRANT CERTIFICATE FOR PURCHASE OF
CLASS A COMMON STOCK AND REDEEMABLE CLASS B WARRANTS
INFOSAFE SYSTEMS, INC.
This certifies that FOR VALUE RECEIVED _____ or registered assigns
(the "Registered Holder") is the owner of the number of Class A Warrants ("Class
A Warrants") specified above. Each Class A Warrant represented hereby initially
entitles the Registered Holder to purchase, subject to the terms and conditions
set forth in this Warrant Certificate and the Warrant Agreement (as hereinafter
defined), one fully paid and nonassessable share of Class A Common Stock, $.01
value ("Class A Common Stock"), of Infosafe Systems, Inc., a Delaware
corporation (the "Company"), and one Class B Warrant of the Company at any time
between January 18, 1995 and the Expiration Date (as hereinafter defined), upon
the presentation and surrender of this Warrant Certificate with the Subscription
Form on the reverse hereof duly executed, at the corporate office of American
Stock Transfer & Trust Company, as Warrant Agent, or its successor (the "Warrant
Agent"), accompanied by payment of $6.50 (the "Purchase Price") in lawful money
of the United States of America in cash or by official bank or certified check
made payable to Infosafe Systems, Inc.
This Warrant Certificate and each Class A Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth either in the Warrant Agreement, dated February 10, 1997,
or the Warrant Agreement dated January 25, 1995, as amended, by and among the
Company, the Warrant Agent and X.X. Xxxxx Investment Banking Corp. (which
agreements may each be referred to interchangeably as the "Warrant Agreement"),
except as set forth below.
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase Price or the number of shares of Class A Common Stock
and Class B Warrants subject to purchase upon the exercise of each Class A
Warrant represented hereby are subject to modification or adjustment.
Each Class A Warrant represented hereby is exercisable at the option
of the Registered Holder, but no fractional shares of Class A Common Stock will
be issued. In the case of the exercise of less than all the Class A Warrants
represented hereby, the Company shall cancel this Warrant Certificate upon the
surrender hereof and shall execute and deliver a new
A-1
Warrant Certificate or Warrant Certificates of like tenor, which the Warrant
Agent shall countersign, for the balance of such Class A Warrants.
The term "Expiration Date" shall mean 5:00 P.M. (New York time) on
_______, 2002 or such earlier date as the Class A Warrants shall be redeemed. If
such date shall in the State of New York be a holiday or a day on which banks
are authorized to close, then the Expiration Date shall mean 5:00 P.M. (New York
time) the next following day which in the State of New York is not a holiday or
a day on which banks are authorized to close.
The Company shall not be obligated to deliver any securities
pursuant to the exercise of the Class A Warrants represented hereby unless a
registration statement under the Securities Act of 1933, as amended, with
respect to such securities is effective. The Company has covenanted and agreed
that it will file a registration statement and will use its best efforts to
cause the same to become effective and to keep such registration statement
current while any of the Class A Warrants are outstanding. The Class A Warrants
represented hereby shall not be exercisable by a Registered Holder in any state
where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof
by the Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Class A Warrants, each of such new Warrant Certificates to
represent such number of Class A Warrants as shall be designated by such
Registered Holder at the time of such surrender. Upon due presentment with any
applicable transfer fee per certificate in addition to any tax or other
governmental charge imposed in connection therewith, for registration of
transfer of this Class A Warrant Certificate at such office, a new Warrant
Certificate or Warrant Certificates representing an equal aggregate number of
Class A Warrants will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Warrant Agreement.
Prior to the exercise of any Class A Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
The Class A Warrants represented hereby may be redeemed at the
option of the Company, at a redemption price of $.05 per Class A Warrant at any
time, provided the Market Price (as defined in the Warrant Agreement) for the
Class A Common Stock shall exceed $9.10 per share. Notice of redemption shall be
given not later than the thirtieth day before the date fixed for redemption, all
as provided in the Warrant Agreement. On and after the date fixed for
redemption, the Registered Holder shall have no rights with respect to the Class
A Warrants represented hereby except to receive the $.05 per Class A Warrant
upon surrender of this Warrant Certificate.
A-2
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Class A Warrant represented hereby
(notwithstanding any notations of ownership or writing hereon made by anyone
other than a duly authorized officer of the Company or the Warrant Agent) for
all purposes and shall not be affected by any notice to the contrary.
The Company has agreed to pay a fee of five (5)% of the Purchase
Price upon certain conditions as specified in the Warrant Agreement upon the
exercise of the Class A Warrants represented hereby.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed, manually or in facsimile, by two of its officers thereunto
duly authorized and a facsimile of its corporate seal to be imprinted hereon.
INFOSAFE SYSTEMS, INC.
Dated:__________________ By:_______________________________
By:_______________________________
[seal]
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Warrant Agent
By:_____________________________
Authorized Officer
A-3
[FORM OF REVERSE OF WARRANT CERTIFICATE]
TRANSFER FEE: $ PER CERTIFICATE ISSUED
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to
exercise ______________________________ Class A Warrants represented by this
Warrant Certificate, and to purchase the securities issuable upon the exercise
of such Class A Warrants, and requests that certificates for such securities
shall be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
________________________________________
________________________________________
________________________________________
________________________________________
[please print or type name and address]
and be delivered to
________________________________________
________________________________________
________________________________________
________________________________________
[please print or type name and address]
and if such number of Class A Warrants shall not be all the Class A Warrants
evidenced by this Warrant Certificate, that a new Class A Warrant Certificate
for the balance of such Class A Warrants be registered in the name of, and
delivered to, the Registered Holder at the address stated below.
A-4
The undersigned represents that the exercise of the within Class A
Warrant was solicited by a member of the National Association of Securities
Dealers, Inc. If not solicited by an NASD member, please write "unsolicited" in
the space below.
_______________________________
(Name of NASD Member)
Dated:_________________________ X _______________________________
_______________________________
_______________________________
Address
_______________________________
Taxpayer Identification Number
_______________________________
Signature Guaranteed
_______________________________
A-5
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, ________________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
________________________________________
________________________________________
________________________________________
________________________________________
[please print or type name and address]
______________________________ of the Class A Warrants represented by this
Warrant Certificate, and hereby irrevocably constitutes and appoints Attorney to
transfer this Warrant Certificate on the books of the Company, with full power
of substitution in the premises.
Dated:_________________________ X _______________________________
Signature Guaranteed
_______________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY A MEMBER OF THE MEDALLION STAMP PROGRAM.
A-6
EXHIBIT B
[FORM OF FACE OF CLASS B WARRANT CERTIFICATE]
No. BW Class B Warrants
VOID AFTER _________, 2002
CLASS B WARRANT CERTIFICATE FOR
PURCHASE OF CLASS A COMMON STOCK
INFOSAFE SYSTEMS, INC.
This certifies that FOR VALUE RECEIVED ______ or registered assigns
(the "Registered Holder") is the owner of the number of Class B Warrants
specified above. Each Class B Warrant represented hereby initially entitles the
Registered Holder to purchase, subject to the terms and conditions set forth in
this Warrant Certificate and the Warrant Agreement (as hereinafter defined), one
fully paid and nonassessable share of Class Common Stock, $.01 par value ("Class
A Common Stock"), of Infosafe Systems, Inc., a Delaware corporation (the
"Company"), at any time between January 18, 1995 and the Expiration Date (as
hereinafter defined), upon the presentation and surrender of this Warrant
Certificate with the Subscription Form on the reverse hereof duly executed, at
the corporate office of American Stock Transfer & Trust Company, as Warrant
Agent, or its successor (the "Warrant Agent"), accompanied by payment of $8.75
(the "Purchase Price") in lawful money of the United States of America in cash
or by official bank or certified check made payable to Infosafe Systems, Inc.
This Warrant Certificate and each Class B Warrant represented hereby
are issued pursuant to and are subject in all respects to the terms and
conditions set forth either in the Warrant Agreement, dated February 10, 1997,
or the Warrant Agreement dated January 25, 1995, as amended, by and among the
Company, the Warrant Agent and X.X. Xxxxx Investment Banking Corp. (which
agreements may each be referred to interchangeably as the "Warrant Agreement"),
except as set forth below.
In the event of certain contingencies provided for in the Warrant
Agreement, the Purchase Price or the number of shares of Class A Common Stock
subject to purchase upon the exercise of each Class B Warrant represented hereby
are subject to modification or adjustment.
Each Class B Warrant represented hereby is exercisable at the option
of the Registered Holder, but no fractional shares of Class A Common Stock will
be issued. In the case of the exercise of less than all the Class B Warrants
represented hereby, the Company shall cancel this Warrant Certificate upon the
surrender hereof and shall execute and deliver a new Warrant Certificate or
Warrant Certificates of like tenor, which the Warrant Agent shall countersign,
for the balance of such Class B Warrants.
B-1
The term "Expiration Date" shall mean 5:00 P.M. (New York time) on
___________, 2002, or such earlier date as the Class B Warrants shall be
redeemed. If such date shall in the State of New York be a holiday or a day on
which banks are authorized to close, then the Expiration Date shall mean 5:00
P.M. (New York time) the next following day which in the State of New York is
not a holiday or a day on which banks are authorized to close.
The Company shall not be obligated to deliver any securities
pursuant to the exercise of the Class B Warrants represented hereby unless a
registration statement under the Securities Act of 1933, as amended, with
respect to such securities is effective. The Company has covenanted and agreed
that it will file a registration statement and will use its best efforts to
cause the same to become effective and to keep such registration statement
current while any of the Class B Warrants are outstanding. The Class B Warrants
represented hereby shall not be exercisable by a Registered Holder in any state
where such exercise would be unlawful.
This Warrant Certificate is exchangeable, upon the surrender hereof
by the Registered Holder at the corporate office of the Warrant Agent, for a new
Warrant Certificate or Warrant Certificates of like tenor representing an equal
aggregate number of Class B Warrants, each of such new Warrant Certificates to
represent such number of Class B Warrants as shall be designated by such
Registered Holder at the time of such surrender. Upon due presentment with any
applicable transfer fee in addition to any tax or other governmental charge
imposed in connection therewith, for registration of transfer of this Warrant
Certificate at such office, a new Warrant Certificate or Warrant Certificates
representing an equal aggregate number of Class B Warrants will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Warrant Agreement.
Prior to the exercise of any Class B Warrant represented hereby, the
Registered Holder shall not be entitled to any rights of a stockholder of the
Company, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided in the Warrant
Agreement.
The Class B Warrants represented hereby may be redeemed at the
option of the Company, at a redemption price of $.05 per Class B Warrant at any
time provided the Market Price (as defined in the Warrant Agreement) for the
Class A Common Stock shall exceed $12.25 per share. Notice of redemption shall
be given not later than the thirtieth day before the date fixed for redemption,
all as provided in the Warrant Agreement. On and after the date fixed for
redemption, the Registered Holder shall have no rights with respect to the Class
B Warrants represented hereby except to receive the $.05 per Class B Warrant
upon surrender of this Warrant Certificate.
Prior to due presentment for registration of transfer hereof, the
Company and the Warrant Agent may deem and treat the Registered Holder as the
absolute owner hereof and of each Class B Warrant represented hereby
(notwithstanding any notations of ownership or writing
B-2
hereon made by anyone other than a duly authorized officer of the Company or the
Warrant Agent) for all purposes and shall not be affected by any notice to the
contrary.
The Company has agreed to pay a fee of 5% of the Purchase Price upon
certain conditions as specified in the Warrant Agreement upon the exercise of
the Class B Warrants represented hereby.
This Warrant Certificate shall be governed by and construed in
accordance with the laws of the State of New York.
This Warrant Certificate is not valid unless countersigned by the
Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate
to be duly executed, manually or in facsimile, by two of its officers thereunto
duly authorized and a facsimile of its corporate seal to be imprinted hereon.
INFOSAFE SYSTEMS, INC.
Dated:__________________________ By:_________________________________
By:_________________________________
[seal]
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Warrant Agent
By:___________________________________
Authorized Officer
B-3
[FORM OF REVERSE OF WARRANT CERTIFICATE]
SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder hereby irrevocably elects to
exercise ____________________ Class B Warrants represented by this Warrant
Certificate, and to purchase the securities issuable upon the exercise of such
Class B Warrants, and requests that certificates for such securities shall be
issued in the name of
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
________________________________________
________________________________________
________________________________________
________________________________________
[please print or type name and address]
and be delivered to
________________________________________
________________________________________
________________________________________
________________________________________
[please print or type name and address]
and if such number of Class B Warrants shall not be all the Class B Warrants
evidenced by this Warrant Certificate, that a new Warrant Certificate for the
balance of such Class B Warrants be registered in the name of, and delivered to,
the Registered Holder at the address stated below.
B-4
The undersigned represents that the exercise of the within Warrant
was solicited by a member of the National Association of Securities Dealers,
Inc. If not solicited by an NASD member, please write "unsolicited in the space
below.
_______________________________
(Name of NASD Member)
Dated:_________________________ X _______________________________
_______________________________
_______________________________
Address
_______________________________
Taxpayer Identification Number
_______________________________
Signature Guaranteed
_______________________________
B-5
ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
FOR VALUE RECEIVED, __________________________________ hereby sells,
assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
________________________________________
________________________________________
________________________________________
________________________________________
[please print or type name and address]
_______________________________________ of the Class A Warrants represented by
this Warrant Certificate, and hereby irrevocably constitutes and appoints
______________________________________________________________ Attorney to
transfer this Warrant Certificate on the books of the Company, with full power
of substitution in the premises.
Dated:_________________________ X _______________________________
Signature Guaranteed
_______________________________
THE SIGNATURE TO THE ASSIGNMENT OR THE SUBSCRIPTION FORM MUST CORRESPOND TO THE
NAME AS WRITTEN UPON THE FACE OF THIS WARRANT CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATSOEVER, AND MUST BE
GUARANTEED BY A MEMBER OF THE MEDALLION STAMP PROGRAM.
B-6
