EXHIBIT 99.3
FIRST AMENDMENT TO WARRANT AGREEMENT (this "Amendment") dated as of
November 6, 2001, among RESERVOIR CAPITAL PARTNERS, L.P., RESERVOIR CAPITAL
ASSOCIATES, L.P. and RESERVOIR CAPITAL MASTER FUND, L.P. (each a "Holder" and
collectively the "Holders"), and STUDENT ADVANTAGE, INC.
WHEREAS, the parties entered into a Warrant Agreement dated as of June 25,
2001 (as amended from time to time, the "Warrant Agreement"); and
WHEREAS, the parties desire to amend the Warrant Agreement pursuant to the
terms of this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, the parties agree
as follows:
1. Except as otherwise specifically defined in this Amendment,
capitalized terms used in this Amendment without definition shall have the
meaning ascribed thereto in the Warrant Agreement.
2. The Company shall issue to each Holder, on the date hereof and for
no cash consideration, Term Warrants covering such number of Stock Units as is
specified opposite the name of such Holder in Schedule 1 attached hereto,
substantially in the form attached hereto as Annex 1. Such Term Warrants shall
be deemed to be "Term Warrants" originally issued by the Company pursuant to
Section 2 of the Warrant Agreement.
3. Section 2.02(c) of the Warrant Agreement is hereby amended and
restated in its entirety to read as follows:
"(c) Within three Business Days after receipt of written notice
from the Administrative Agent under the Loan Agreement of the occurrence
of an Event of Default (as defined therein), the Company shall deliver to
each Lender at such time a single certificate for the Default Warrants
representing the number of Stock Units equal to the sum of (i) such
Lender's outstanding Revolving Loans (as defined therein) including
accrued interest at such time divided by $1,000 plus (ii) the product of
10,000 and a fraction the numerator of which is such Lender's outstanding
Term Loans (as defined therein) including capitalized interest and accrued
interest at such time and the denominator of which is $10,200,000, each
such certificate registered in the name of such Person, except that, if
such Person shall notify the Company in writing prior to such issuance
that it desires certificates for such Warrants to be issued in other
denominations or registered in the name or names of any Person or Persons
referred to in Section 5.01(a)(i) or (ii) hereof or any nominee or
nominees for its or their benefit, then if permitted under applicable law
the certificates for such Warrants to be issued by the Company shall be
issued to such Person in the denominations and registered in the name or
names specified in such notice."
4. The second sentence of the second paragraph of the form of Term
Warrant attached to the Warrant Agreement as Annex 1 and each of the (a) Term
Warrant No. R-4 issued to Reservoir Capital Partners, L.P on June 25, 2001 for
427,150 Stock Units, (b) Term Warrant No. R-5 issued to Reservoir Capital Master
Fund, L.P. on June 25, 2001 for 71,800 Stock Units, (c) Term Warrant No. R-6
issued to Reservoir Capital Associates, L.P. on June 25, 2001 for 1,050 Stock
Units, (d) Term Warrant No. R-7 issued to Reservoir Capital Partners, L.P on
June 25, 2001 for 427,150 Stock Units, (e) Term Warrant No. R-8 issued to
Reservoir Capital Master Fund, L.P. on June 25, 2001 for 71,800 Stock Units, and
(f) Term Warrant No. R-9 issued to Reservoir Capital Associates, L.P. on June
25, 2001 for 1,050 Stock Units, shall be amended and restated in its entirety to
read as follows:
"The number of Stock Units for which this Warrant shall be exercisable
shall be adjusted on the Commencement Date to equal the result obtained by
multiplying the original number of Stock Units for which this Warrant is
exercisable by a fraction the numerator of which is the outstanding
principal balance of Term Loans on the Commencement Date (excluding
capitalized interest unless an Event of Default exists on such date) and
the denominator of which is $10,200,000."
5. Effective as of September 22, 2001, the first sentence of Section
14.10(a) of the Warrant Agreement is hereby amended and restated in its entirety
to read as follows:
"The Company will file with the Commission, as soon as practicable, but in
any event, no later than November 30, 2001, a Registration Statement on
Form S-3 covering the resale to the public of all Registrable Securities
consisting of (i) shares issued or issuable upon exercise or conversion of
the Term Warrants and Revolving Warrants, (ii) shares of Interest Stock to
the extent then eligible to be registered for resale and (iii) shares
issued or issuable upon exercise or conversion of Default Warrants to the
extent then eligible to be registered for resale and will use its
reasonable best efforts to cause such Registration Statement to be
declared effective by the Commission as soon as practicable."
6. Except as specifically stated above, the Warrant Agreement and each
of the Warrant issued thereunder remain in full force and effect and are not
modified or amended hereby. To the extent that any of the Loan Documents, the
Warrant Agreement or any of the Warrants refers to the Warrant Agreement, such
reference shall mean the Warrant Agreement as amended hereby.
[The Next Page is the Signature Page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
STUDENT ADVANTAGE, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: President
HOLDERS:
RESERVOIR CAPITAL PARTNERS, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
RESERVOIR CAPITAL ASSOCIATES, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
RESERVOIR CAPITAL MASTER FUND, L.P.
By: Reservoir Capital Group, L.L.C.,
General Partner
By /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
SCHEDULE 1
WARRANTS TO BE ISSUED TO THE HOLDERS
Warrants Exercisable
Name of Holder Immediately
Reservoir Capital Partners, L.P. 85,430
Reservoir Capital Master Fund, L.P. 14,360
Reservoir Capital Associates L.P. 210
TOTAL 100,000 Stock Units
====================
ANNEX 1
[Form of Warrant]
TERM WARRANT
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH
THE REGISTRATION OR QUALIFICATION PROVISIONS OF APPLICABLE FEDERAL AND
STATE SECURITIES LAWS OR UNLESS AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH
REGISTRATION AND QUALIFICATION IS NOT REQUIRED.
No. of Stock Units: Warrant No.
---- ---
WARRANT
to Purchase Shares of Common Stock of
STUDENT ADVANTAGE, INC.
THIS IS TO CERTIFY THAT [NAME OF INITIAL HOLDER], or its
registered assigns, is entitled to purchase in whole or in part from STUDENT
ADVANTAGE, INC., a Delaware corporation (the "Company"), at any time and from
time to time on or after the Commencement Date (as defined below), but not later
than 5:00 p.m., New York City time, on June 25, 2005 (the "Expiration Date"),
[ ] Stock Units (as defined in the Warrant Agreement referred to below) at a
purchase price of $0.01 per Stock Unit (the "Exercise Price"); provided, that
such purchase price shall not be less than the aggregate par value of the
capital stock contained in a Stock Unit, subject to the terms and conditions set
forth herein and in the Warrant Agreement, each such purchase of a Stock Unit to
be made, and to be deemed effective for the purpose of determining the date of
exercise, only upon surrender of this Warrant to the Company at its office
referred to in Section 15.03 of the Warrant Agreement, with the Form of Exercise
attached hereto (or a reasonable facsimile thereof) duly completed and signed,
and upon payment in full to the Company of the Exercise Price (i) in cash or
(ii) by certified or official bank check or (iii) by any combination of the
foregoing, all as provided in the Warrant Agreement and upon compliance with and
subject to the conditions set forth herein and in the Warrant Agreement.
For the purposes of this Warrant, the "Commencement Date"
shall be the date hereof. On and after the Commencement Date and on or prior to
the Expiration Date, this Warrant may be converted, in whole or in part, at the
Holder's option, into the number of shares
of Common Stock for each Stock Unit evidenced hereby which is being so
converted, equal to (a)(i) the product of (x) the number of shares of Common
Stock comprising a Stock Unit at the time of such conversion and (y) the Current
Market Price per share of Common Stock at the time of such conversion minus (ii)
the Exercise Price per Stock Unit at the time of such conversion, divided by (b)
the Current Market Price per share of Common Stock at the time of such
conversion, all as provided in the Warrant Agreement and upon compliance with
and subject to the conditions set forth herein and in the Warrant Agreement.
This Warrant is issued under and in accordance with the
Warrant Agreement dated as of June 25, 2001 between the Company and certain
holders (as the same may be modified and supplemented in accordance with its
terms and as in effect from time to time, the "Warrant Agreement"), and is
subject to the terms and provisions of the Warrant Agreement, which terms and
provisions are hereby incorporated by reference herein and made a part hereof.
Every Holder of this Warrant consents to all of the terms contained in the
Warrant Agreement by acceptance hereof.
The number of shares of Common Stock or other securities of
the Company constituting one "Stock Unit" are subject to adjustment in certain
events as provided in the Warrant Agreement.
The Company shall not be required to issue a fractional share
of Common Stock upon exercise of this Warrant. As to any fraction of a share
which the Holder hereof would otherwise be entitled to purchase upon such
exercise, the Company may pay a cash adjustment in respect of such final
fraction in an amount equal to the same fraction of the Current Market Price per
share of Common Stock on the date of exercise or may be round up to the next
whole number of shares.
This Warrant may be exchanged either separately or in
combination with other Warrants at the office of the Company referred to in
Section 15.03 of the Warrant Agreement for new Warrants representing the same
aggregate number of Warrants evidenced by the Warrant or Warrants exchanged,
upon surrender of this and any other Warrant being exchanged and upon compliance
with and subject to the conditions set forth herein and in the Warrant
Agreement.
The Warrants and the Warrant Stock shall be transferable only
upon compliance with the conditions specified in Sections 4 and 5 of the Warrant
Agreement, which conditions are intended, among other things, to ensure
compliance with the provisions of the Securities Act in respect of the transfer
of any Warrant or any Warrant Stock, and any Holder hereof shall be bound by the
provisions of (and entitled to the benefits of) said Sections 4 and 5. Upon any
such transfer effected in compliance with said Sections 4 and 5, a new Warrant
or new Warrants of different denominations, representing in the aggregate a like
number of Warrants, will be issued to the transferee. Every Holder hereof, by
accepting this Warrant, consents and agrees with the Company and with every
subsequent Holder of this Warrant that until due presentation for the
registration of transfer of this Warrant on the Warrant register maintained by
the Company, the Company may deem and treat the Person in whose name this
Warrant is registered as the absolute and lawful owner for all purposes
whatsoever and the Company shall not be affected by any notice to the contrary.
Nothing contained in the Warrant Agreement or in this Warrant
shall be construed as conferring on the holder of any Warrants or his or her
transferee any rights whatsoever as a stockholder of the Company.
No provision hereof, in the absence of affirmative action by
the Holder hereof to purchase shares of Common Stock, and no mere enumeration
herein of the rights or privileges of such Holder, shall give rise to any
liability of such Holder for the Exercise Price or as a Stockholder of the
Company, whether such liability is asserted by the Company, by any creditor of
the Company or any other Person.
Any notices and other communications pursuant to the
provisions hereof shall be sent in accordance with Section 15.02 of the Warrant
Agreement.
Each term used herein without definition shall have the
meaning assigned thereto in the Warrant Agreement.
IN WITNESS WHEREOF, the Company has duly executed this
Warrant.
Dated: , 2001
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STUDENT ADVANTAGE, INC.
By
---------------------------------
Name:
Title:
FORM OF EXERCISE
(To be executed by the registered holder hereof) The
undersigned registered owner of this Warrant hereby
SELECT ONE OF THE FOLLOWING TWO CHOICES:
[irrevocably exercises this Warrant for the purchase of Stock Units
of STUDENT ADVANTAGE, INC., a Delaware corporation, and herewith
makes payment therefor in the amount of $_____________, all at the
price and on the terms and conditions specified in this Warrant,]
OR
[irrevocably converts this Warrant into shares of Common Stock of
STUDENT ADVANTAGE, INC., a Delaware corporation, all in the manner
and on the terms and conditions specified in this Warrant,]
and requests that (i) certificates and/or other instruments covering such Stock
Units be issued in accordance with the instructions given below and (ii) if such
Stock Units shall not include all of the Stock Units to which the Holder is
entitled under this Warrant, that a new Warrant of like tenor and date for the
balance of the Stock Units issuable hereunder be delivered to the undersigned.
Dated: ___________, _____
________________________________
(Signature of Registered Holder)
Instructions for issuance and registration of Stock Units:
Name of Registered Holder:
(Please print) -----------------------------------------------------
Social Security or Other Identifying Number:
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Please deliver certificate to the following address:
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FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered owner of this
Warrant hereby sells, assigns and transfers unto the assignee named below all
the rights of the undersigned under this Warrant with respect to the number of
Stock Units covered thereby set forth hereinbelow unto:
Number of
Name of Assignee Address Stock Units
Dated:
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Signature of Registered Holder
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Name of Registered Holder
(Please Print)
Witness:
