SECOND AMENDMENT AND AGREEMENT REGARDING WARRANTS
THIS SECOND AMENDMENT AND AGREEMENT REGARDING WARRANTS (this
"Amendment") is dated as of April 17, 2001, by and among Hispanic Television
Network, Inc., a Delaware corporation (the "Company") and Xxxx Xxxxx Strategic
Partners, L.P. and GAINSCO, Inc. (collectively, "Warrantholder
Representatives"), representing all holders of that certain series of warrants
to purchase shares of Company common stock dated July 25, 2000 (collectively, as
amended, supplemented or modified to the date hereof, the "Warrants") and issued
by the Company in connection with the Original Loan Agreement (as defined
below), and representing the parties, other than the Company, to the
Registration Rights Agreement and the Second Amendment (each as defined below).
W I T N E S S E T H:
WHEREAS, the Company and the Warrant Representatives and the other
lenders set forth therein entered into that certain Loan Agreement dated as of
July 25, 2000 (as amended, supplemented or modified to the date hereof, the
"Original Loan Agreement");
WHEREAS, in connection with the Original Loan Agreement, the Company
issued the Warrants to the Warrantholder Representatives and the other lenders
thereunder;
WHEREAS, the Warrants have previously been amended from time to time in
connection with amendments to the Original Loan Agreement among the Company and
the Warrant Representatives, including under (i) that certain Second Amendment
to Loan Agreement and Agreement dated as of November 6, 2000 (the "Second
Amendment"), (ii) that certain Third Amendment to Loan Agreement and Agreement
dated as of December 15, 2000 (the "Third Amendment") and (iii) that certain
Amendment and Agreement Regarding Warrants dated January 31, 2001 (the "First
Warrant Amendment");
WHEREAS, the Company, the Warrant Representatives and the lenders
represented by the Warrant Representatives entered into that certain
Registration Rights Agreement dated as of July 25, 2000 (the "Registration
Rights Agreement");
WHEREAS, the First Warrant Amendment was predicated upon the
consummation of certain proposed underlying transactions that were in fact
ultimately not consummated; and
WHEREAS, the Company and Warrantholder Representatives desire to
further amend the Warrants (as amended by the Second Amendment, the Third
Amendment and the First Warrant Amendment) and the Registration Rights Agreement
as described herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and in the Seventh Amendment to Loan
Agreement and Amendment of
Notes of even date herewith (the "Seventh Amendment"), and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. PRIOR AMENDMENTS TO WARRANT PROVISIONS SUPERSEDED AND
CANCELED. Article II.A. of the Second Amendment (Agreements Relating to the
Warrants), Article II.A. of the Third Amendment (Agreements Relating to the
Warrants) and the entire First Warrant Amendment are each hereby deleted in
their entirety and shall be of no further force or effect.
2. TERMS DEFINED IN THE WARRANTS. Unless the context otherwise
requires or unless otherwise expressly defined herein, the terms defined in
the Warrants shall have the same meanings whenever used in this Amendment.
3. AMENDMENTS TO DEFINED TERMS. The definitions of "Exercise
Price", "Loan Agreement" and "Shares" in Section 1 of the Warrants are deleted
in their entirety and replaced with the definitions set forth below and the
definitions of "Fully Diluted Shares", "Series Shares" and "Series Warrants"
are added as set forth below:
"EXERCISE PRICE" shall mean the exercise price per share of
Common Stock, which shall equal $.01 (one cent) per share.
"FULLY DILUTED SHARES" shall mean (i) the shares of Common
Stock outstanding as of a specified date, (ii) shares of Common Stock
into or for which rights, options, warrants, indebtedness or other
securities outstanding as of such date are or may become exercisable,
exchangeable or convertible (including the Series Shares), and (iii)
shares of Common Stock designated or set aside as of such date for
issuance pursuant to any option plan, equity incentive plan or other
plan pursuant to which shares of Common Stock may become issued.
"LOAN AGREEMENT" shall mean that certain Loan Agreement dated
as of July 25, 2000, between the Company and certain lenders set forth
therein, as may be amended from time to time.
"SERIES SHARES" shall mean the aggregate number of shares of
Common Stock subject to all Series Warrants calculated as follows. In
the event that the entire amount of principal and interest outstanding
under the Loan Agreement is repaid by the Company (i) on or before May
31, 2001, the number of Series Shares shall be equal to 5% of the Fully
Diluted Shares, (ii) after May 31, 2001 but on or before June 30, 2001,
the number of Series Shares shall be equal to 7.5% of the Fully Diluted
Shares, (iii) after June 30, 2001 but on or before July 31, 2001, the
number of Series Shares shall be equal to 10% of the Fully Diluted
Shares, or (iv) after July 31, 2001 but on or before August 31, 2001,
the number of Series Shares shall be equal to 12.5% of the Fully
Diluted Shares. The percentage as may from time to time be determined
to be applicable under clauses (i)-(iv) of the immediately preceding
sentence shall be referred to herein as the "Applicable Percentage".
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"SERIES WARRANTS" shall mean, collectively, all of the
outstanding warrants of the same series as this Warrant, specifically
those warrants originally issued in connection with the Loan Agreement
and dated July 25, 2000, or any warrants substituted therefor.
"SHARES" shall mean, subject to adjustment as provided under
Section 3, the number of shares of Common Stock subject to this
Warrant. The number of Shares shall equal, at any point in time, the
number of Series Shares MULTIPLIED BY (c) a fraction (i) the numerator
being the total maximum principal amount loaned or committed to be
loaned to the Company BY PURCHASER (including the Initial Loan Amount
and the Escrowed Funds, as such terms are defined in the Loan
Agreement), plus the aggregate interest payable by the Company on such
loan until such time as the loan is repaid in full, and (ii) the
denominator being the total maximum principal amount loaned or
committed to be loaned to the Company by ALL LENDERS (including the
Initial Loan Amount and the Escrowed Funds, as such terms are defined
in the Loan Agreement), plus the aggregate interest payable by the
Company on such loans until such time as the loans are repaid in full.
FOR EXAMPLE, if Purchaser loaned $950,000 to the Company and the
interest payable under such loan was $50,000, the total amount loaned
to the Company under the Loan Agreement was $4.75 million and the
interest payable under such loans was $250,000, and the number of
Series Shares was 5,000,000, then the number of Shares would be
1,000,000 (i.e., 5,000,000 Series Shares multiplied by
$1,000,000/$5,000,000).
4. EXERCISE OF WARRANT. Section 2(a) of the Warrants is hereby
deleted in its entirety and replaced with the following:
(a) At any time after the date hereof through and including
the Expiration Date, Warrantholder may from time to time exercise this
Warrant, in whole or in part. In the event that the Warrantholder
elects to exercise this Warrant at any time that the number of Shares
has not been finally determined, the Company shall be obligated to
permit the Warrantholder to exercise its right to purchase the maximum
number of Shares that may be covered by this Warrant at the time of
exercise, and the Company shall promptly issue such Warrantholder a new
Warrant representing the right to purchase any unexercised or
additional Shares that may be determined subsequent to such exercise.
5. ADJUSTMENT OF SERIES SHARES; ANTI-DILUTION. Section 3 of the
Warrants is hereby deleted in its entirety and replaced with the following:
SECTION 3. ADJUSTMENT OF SERIES SHARES; ANTI-DILUTION.
(a) If, at any time prior to the Expiration Date, the number
of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock or by a subdivision or split-up of
shares of Common Stock, then, immediately following such
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action, the number of Series Shares as determined immediately prior to
such action shall be proportionately increased.
(b) (i) If, at any time prior to the Expiration Date,
the Company issues or sells shares of Common Stock, or in
any manner grants any warrants, options or other rights
(collectively, "Options") to acquire shares of Common Stock
or any other securities convertible into or exchangeable for
Common Stock ("Convertible Securities"), and such Common
Stock, or the shares of Common Stock underlying such Options
or Convertible Securities, are issued or may under any
possible circumstances be subject to issuance for less than
$2.00 per share cash consideration (such calculation
disregarding the value, if any, of any portion of
consideration paid in any form other than cash) to the
Company for such shares (such amount, as subject to
adjustment hereunder, the "Minimum Price"), then the number
of Series Shares as calculated immediately prior to such
action shall be adjusted immediately after such action by
adding a number of additional shares equal to:
(The maximum number of shares of Common Stock issued or potentially
issuable (pursuant to exercise, conversion or exchange of an Option
or Convertible Security or otherwise) at less than the Minimum Price
resulting from such action MULTIPLIED BY the Applicable Percentage)
DIVIDED BY (1 MINUS the Applicable Percentage)
(ii) For purposes of determining whether any shares
of Common Stock issuable upon exercise, conversion or
exchange of Options or Convertible Securities are subject to
issuance for less than the Minimum Price, the following
rules shall apply. First, the consideration paid for such
shares of Common Stock shall be deemed to include the total
amount of cash consideration, if any, received or receivable
by the Company as consideration for the issue or grant of
such Options and Convertible Securities, plus the minimum
aggregate amount of additional consideration payable to the
Company upon the exercise of such Options and the conversion
or exchange of such Convertible Securities, including, in
the case of any such Options which relate to Convertible
Securities, the minimum aggregate amount of additional
consideration, if any, payable to the Company upon the
conversion or exchange of such Convertible Securities (such
calculation disregarding the value, if any, of any portion
of consideration paid in any form other than cash). Second,
in the event that the Company issues indebtedness or other
securities that are not Options or Convertible Securities
(the "Other Securities") concurrently with the issuance of
Options or Convertible Securities, the Company shall
allocate the face amount of such indebtedness or the
liquidation preference of such Other Securities, whichever
is greater, to such Other Securities, and shall allocate the
remaining consideration to the Options or Convertible
Securities for the purposes of this subsection (ii). Third,
in the event that the Company concurrently issues Options or
Convertible Securities that contain different exercise
prices, then the Options or Convertible Securities with
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separate conversion prices shall be treated as a separate
issuance for purposes of this Section 3.
(iii) If, at any time prior to the Expiration Date,
the number of outstanding shares of Common Stock is decreased
by a combination of shares (by reverse stock split or
otherwise) of Common Stock, then, immediately following such
action, the Minimum Price in effect immediately prior to such
action will be proportionately increased.
(iv) At any time prior to the Expiration Date that
the Company sells or issues shares of Common Stock, Options or
Convertible Securities, the Company shall provide to each
Warrantholder, within fifteen calendar days of such action,
written notice of such sale or issuance, including a
reasonable description of the substance of such sale or
issuance, including the amount and form of any consideration
paid to the Company in connection with such action, and the
terms and conditions of exercise, conversion or exchange
related to any Options or Convertible Securities sold or
issued in such action.
(v) Notwithstanding the foregoing provisions of this
Section 3(b), if the entire amount of principal and interest
outstanding under the Loan Agreement and all other Obligations
(as defined in the Loan Agreement) are repaid by the Company
in full on or before April 30, 2001, this Section 3(b) shall
terminate one year prior to the Expiration Date.
6. RESERVATION AND AUTHORIZATION OF CAPITAL STOCK. Section 6 of
the Warrants is hereby deleted in its entirety and replaced with the following:
SECTION 6. RESERVATION AND AUTHORIZATION OF CAPITAL STOCK. The
Company shall at all times reserve and keep available for issuance such
number of its authorized but unissued shares of Common Stock as will be
sufficient to permit the exercise for in full for Series Shares of all
outstanding Series Warrants.
7. REGISTRATION RIGHTS. Section 9 of the Warrants is hereby
deleted in its entirety and replaced with the following:
SECTION 9. REGISTRATION RIGHTS. The Warrant Stock issuable
upon exercise of this Warrant shall be deemed to constitute
"Registrable Shares" as defined under and subject to the provisions of
a certain Registration Rights Agreement, dated the same date as this
Warrant, by and among the Company, Purchaser and the other Lenders.
8. AMENDMENT TO REGISTRATION RIGHTS AGREEMENT. The definition
of "Registrable Shares" in Section 1(f) of the Registration Rights Agreement
is hereby deleted in its entirety and replaced with the following:
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(f) "Registrable Shares" means at any time any Common Stock
owned by any Holder which is or may be acquired through the exercise of
the Warrants, or otherwise issued pursuant to any provision in the
Warrants as they may from time to time be amended, and any other shares
of Common Stock issued in respect of such shares by way of a stock
dividend or stock split, or in connection with a combination of shares,
recapitalization, merger, consolidation or reorganization; PROVIDED,
HOWEVER, that shares of Common Stock shall cease to be Registrable
Shares as soon as they are: (i) eligible for sale without restriction
under Rule 144(k) of the Securities Act (provided that the Company's
Secretary or transfer agent has removed all transfer restrictions and
restrictive legends with respect to such Common Stock); (ii) sold or
otherwise disposed of pursuant to a registration statement that was
filed with the Commission and declared effective under the Securities
Act (provided that the Company's Secretary or transfer agent has
removed all transfer restrictions and restrictive legends with respect
to such Common Stock); (iii) sold, transferred or disposed of by a
Holder to any Person that is not a Purchaser or an Affiliate of a
Purchaser; or (iv) no longer outstanding.
9. REQUEST FOR DEMAND REGISTRATION. The Warrantholder
Representatives, representing the holders of a majority of Registrable
Securities (as defined under the Registration Rights Agreement, as amended)
hereby notify the Company of their request that a Required Shelf (as defined
in the Registration Rights Agreement) be filed by the Company in accordance
with Section 2(a)(i) of the Registration Rights Agreement.
10. EFFECTIVE DATE. This Amendment shall become effective if and
when, and only if and when, the Seventh Amendment becomes effective.
11. EFFECT OF EVENT OF DEFAULT UNDER LOAN AGREEMENT. Upon the
occurrence of an "Event of Default" as defined under the Original Loan
Agreement, as may be amended from time to time from and after the date hereof
(including under the Seventh Amendment), the following shall occur:
(a) Sections 3, 4, 5 and 6 of this Amendment shall be
canceled in their entirety and shall be of no further force or effect;
(b) The Warrants shall thereafter be governed (unless later
amended) by their original terms and provisions as in effect prior to
any amendments thereto, provided that the Warrants shall hereby be
amended as follows:
(i) Notwithstanding anything to the contrary
contained in the definition of Shares (as such term
is defined in the Warrants), the number of Shares
that each Warrant is exercisable into upon the final
application of the calculations set forth in such
definition shall be multiplied by an additional one
hundred and twenty five percent (125%).
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(ii) With respect to the definition of Exercise Price
in Section 1 of the Warrant, the first event to occur
under the various alternative calculation methods set
forth in clauses (a) through (e) of such definition
is clause (c), the occurrence of January 31, 2001.
Accordingly, the parties hereto hereby agree that the
proper calculation of Exercise Price pursuant to such
clause (c) would be $.41 per share (subject to
adjustment pursuant to the provisions of Section 3 of
the Warrant, as may be amended from time to time,
which Section 3 will be applied retroactively to the
date of the original issuance of the Warrant).
12. EXPENSES OF COUNSEL. In connection with this Amendment, the
Company shall have the obligation to reimburse the Warrantholder
Representatives for the fees and expenses of their counsel. The Company shall
pay this amount to Warrantholder Representatives on or prior to April 30, 2001.
13. REPRESENTATIONS AND WARRANTIES. In order to induce
Warrantholder Representatives to enter into this Amendment on behalf of
themselves and the other holders of Warrants, the Company represents and
warrants to each holder of an Warrant as follows:
(1) The Company is duly authorized to execute and deliver
this Amendment and is and will continue to be duly authorized to
perform its obligations under the Warrants and the Registration Rights
Agreement as hereby amended. The Company has duly taken all corporate
action necessary to authorize the execution and delivery of this
Amendment and to authorize the performance of the obligations of the
Company hereunder.
(2) The execution and delivery by the Company of this
Amendment, the performance by the Company of its obligations hereunder
and the consummation of the transactions contemplated hereby do not and
will not conflict with any provision of law, statute, rule or
regulation or of the certificate of incorporation and bylaws of the
Company, or of any material agreement, judgment, license, order or
permit applicable to or binding upon the Company, or result in the
creation of any lien, charge or encumbrance upon any assets or
properties of the Company. Except for those which have been obtained,
no consent, approval, authorization or order of any court or
governmental authority or third party is required in connection with
the execution and delivery by the Company of this Amendment or to
consummate the transactions contemplated hereby.
(3) When duly executed and delivered, this Amendment will
be a legal and binding obligation of the Company, enforceable in
accordance with its terms, except as limited by bankruptcy, insolvency
or similar laws of general application relating to the enforcement of
creditors' rights and by equitable principles of general application.
(4) Attached as EXHIBIT A hereto is a true and correct
listing and description (i.e., the number of shares of outstanding
Common Stock, the number of shares of Common Stock subject to
outstanding employee options, etc.) as of the date indicated on such
exhibit (which
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date shall not be earlier than 10 days prior to the date hereof) of all
Fully Diluted Shares (as defined above). The parties recognize that the
total number of Series Shares will not be determined until such time as
the entire amount of the principal and interest outstanding under the
Loan Agreement is repaid in full, and thus the total number of Series
Shares will be calculated based on the number of Fully Diluted Shares
at such time.
14. SURVIVAL. All representations, warranties, covenants and
agreements contained herein shall survive the execution and delivery of this
Amendment and the performance hereof.
15. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance the laws of the State of Texas and any applicable laws
of the United States of America in all respects, including construction,
validity and performance.
16. COUNTERPARTS; FAX. This Amendment may be separately executed
in counterparts and by the different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the same
Amendment. This Amendment may be validly executed by facsimile or other
electronic transmission.
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THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, this Amendment is executed as of the date first
above written.
THE COMPANY:
HISPANIC TELEVISION NETWORK, INC.
By:
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Name:
Title:
WARRANTHOLDER REPRESENTATIVES:
XXXX XXXXX STRATEGIC PARTNERS, L.P.
By: GMSP Operating Partners, L.P., its general
partner
By: GMSP, L.L.C.
By:
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J. Xxxxxxx Xxxxxxx, Principal
GAINSCO, INC.
By:
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Name:
Title:
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EXHIBIT A
Schedule of "Fully Diluted Shares" as of April 13, 2001
