Exhibit 4.4.1
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE HEREUNDER HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE TRANSFERRED UNLESS
REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR, IN
THE OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
AMENDMENT NO. 1
TO
WARRANT
-------
Company: SOUTHHAMPTON ENTERPRISES CORP.
a British Columbia (Canada) corporation
Originally Issued as of: May 7, 1997
FOR VALUE RECEIVED, the adequacy and receipt of which is hereby
acknowledged, SOUTHHAMPTON ENTERPRISES CORP., a British Columbia (Canada)
corporation, hereby certifies to IMPERIAL BANCORP, a California bank holding
company, and its successors and assigns, that the Warrant originally issued as
of the date set forth above shall be amended as set forth herein.
1. Incorporation. All references to Southhampton Enterprises Corp. as a
Nevada corporation are hereby amended to reflect that Southhampton Enterprises
Corp. is a British Columbia (Canada) corporation.
2. Definitions. Capitalized terms not otherwise defined shall have the
meanings set forth in the Warrant.
3. Number of Shares. The number of shares of Common Stock initially
issuable under the Warrant shall be 6,753,247, which amount shall be subject to
adjustment as provided in the Warrant.
4. Other Amendments. The Warrant shall be amended follows:
(a) The phrases "first round of common equity financing after the date
hereof" and "first round of preferred stock, Convertible Securities or options
or rights to purchase Common Stock after the date hereof" as used in the
definition of "Exercise Price," shall be deemed to exclude the issuance of the
Common Stock, preferred stock, Convertible Securities, options and other rights
described in Schedule 1.
(b) The defined term "Warrant(s)" shall be deleted and replaced with the
following:
"Warrant(s)" means this Warrant, any amendments to this Warrant, and
any warrants issued in exchange or replacement of this Warrant or upon the
transfer hereof.
(c) Section 6 is hereby amended by the inclusion of a new Section 6(j)
which provides as follows:
(j) The Cruttenden Warrant. Concurrent with the issuance of this
Warrant, the Company has also issued a warrant to The Cruttenden Xxxx
Bridge Fund, LLC, to purchase 10.0% of the Company's Common Stock on a
fully diluted basis (the "Cruttenden Warrant"). It is the intent of the
Company that the Exercise Price shall never be greater than the per share
exercise price determined under the Cruttenden Warrant. Accordingly,
notwithstanding anything to the contrary contained in this Warrant, the
Exercise Price of this Warrant shall be equal to the lesser of i) the
Exercise Price as determined under the terms of this Warrant (not taking
into account this Section 6(j)); and ii) the per share exercise price
determined under the terms of the Cruttenden Warrant in effect at the time
the Bank desires to exercise this Warrant.
5. Miscellaneous Provisions.
(a) Except as amended by this Amendment No. 1 to Warrant, the terms and
conditions of the Warrant shall remain in full force and effect.
(b) The covenants and agreements of this Amendment No. 1 to Warrant shall
bind the heirs, assigns and successors of the Company.
(c) This Amendment No. 1 to Warrant shall be deemed to have been made in
the State of California, and the validity of this Amendment No. 1 to Warrant,
the construction, interpretation, and enforcement thereof and the rights of the
parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of California, without regard to
principles of conflicts of law.
(d) The headings in this Amendment No. 1 to Warrant are inserted only for
convenience of reference and shall not be used in the construction of any of its
terms.
IN WITNESS WHEREOF, the Company has caused this Amendment No. 1 to Warrant
to be signed by its duly authorized officers effective as of May 7, 1997.
SOUTHHAMPTON ENTERPRISES CORP.,
a British Columbia (Canada)corporation
By: /S/ L. Xxxxxx Xxxxxx
L. Xxxxxx Xxxxxx, President
AGREED AND ACCEPTED:
IMPERIAL BANCORP,
a California bank holding company
By: illegible
Its: Vice President