EXHIBIT 4.2
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 Delaware 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.
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. Medici_____
Authorized Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: _/s/ Xxxxxxx Lemmer________
Authorized Officer
X.X. XXXXX INVESTMENT BANKING CORP.
By: _/s/ Xxxxxx X. Bell_______
Xxxxxx X. Xxxx, Vice Chairman
and General Counsel
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 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 February 18, 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.
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
[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.
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
_______________________________
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.
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.
The term "Expiration Date" shall mean 5:00 P.M. (New York
time) on February 18, 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 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
[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.
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
_______________________________
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.
