AMENDMENT TO WARRANT
AND REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 2, 2000
This Amendment (the "Amendment") to the Warrant and Registration Rights
Agreement (the "Agreement") dated as of November 2, 2000 by GenesisIntermedia,
Inc. (the "Company"), a Delaware corporation (formerly known as
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.) and The Macerich Partnership, L.P. ("Macerich") is
effective as of August 30, 2001.
Whereas, pursuant to the Agreement, a Warrant was issued to Macerich to
purchase 200,000 shares of Common Stock (the "Common Stock") of the Company at
an exercise price of $15 per share, which amount and price have been adjusted
pursuant to Section 5 of the Warrant to represent 600,000 shares of Common Stock
at an exercise price of $5 per share;
WHEREAS, pursuant to the Agreement, a Registration Statement on Form S-3,
File No. 333-59122 (the "Registration Statement") was filed with the Securities
and Exchange Commission ("SEC") registering the sale of all shares underlying
the Warrant;
Whereas, the parties desire to amend the Agreement, including the Warrant
attached as Exhibit A, on the terms and conditions specified below.
Now, therefore, the parties agree as follows:
1. The parties agree that the Warrant is fully vested and exercisable
immediately with respect to 200,000 shares of Common Stock (the "Warrant
Shares") at an exercise price of $5 per share. The Warrant shall not be
exercisable for any other shares of Common Stock.
2. Except as provided below, Macerich shall not, directly or indirectly,
offer, sell, transfer, assign, contract to sell, enter into any short sales with
respect to the Warrant Shares, or otherwise dispose of (any such action, a
"Disposition") any of the Warrant Shares. A pledge of any such Warrant Shares
shall not constitute a Disposition hereunder. Any Disposition shall be effected
in compliance with the following criteria ("Disposition Restrictions"):
(i) no more than 5,000 Warrant Shares shall be subject to a Disposition in any
24-hour period.
Notwithstanding anything in this Amendment to the contrary, Macerich may pledge,
margin or otherwise encumber the Warrant Shares in a bona fide loan transaction,
unless the result of any such activity would be that such Warrant Shares would
be available for lending and/or borrowing in connection with short sales of the
Warrant Shares by any third party. The Disposition Restrictions shall expire if
the Company breaches any of its obligations (without giving effect to any cure
periods) under the Warrant or the Agreement, each as amended by this Amendment.
Macerich agrees if it breaches the Disposition Restrictions it will pay to the
Company as its sole remedy for such breach $10.00 for each share sold by
Macerich in violation of such Disposition Restrictions. The Company agrees it
will have no other legal or equitable remedy with respect to any such breach.
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Macerich may sell the Warrant Shares without complying with the above
Disposition Restrictions to a third party in a private transaction provided that
the third party purchaser agrees in writing to be bound by the terms of the
Warrant, as amended, as if an original party thereto. Macerich shall report to
the Company at the Company's request, but in no event less frequently than
weekly, the number of Dispositions or other transfers, pledges or similar
transactions with respect to the Warrant Shares.
3. Upon receipt of an exercise notice, the Company agrees to issue, and
cause to be delivered, within three (3) business days, to or upon the written
order of the holder in such name or names as the Warrant holder may designate,
certificates for the full number of Warrant Shares issuable upon the exercise of
this Warrant in the denominations requested by Macerich.
4. The Warrant will expire on August 30, 2006.
5. All of the representations and warranties made in the Agreement and the
Warrant by the Company are true and correct as of the date hereof. The Company
represents and warrants that the Registration Statement is effective and
Macerich may immediately sell the Warrant Shares pursuant to the Registration
Statement, subject to the restrictions set forth in this Amendment. The Company
further represents and warrants that it has fulfilled all of its obligations
under the Agreement with respect to the sale of the Warrant Shares by or on
behalf of Macerich.
6. In connection with the sale of any Warrant Shares, the Company agrees to
the following procedures:
(i) The Company will immediately notify ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of
Macerich if (i) the Registration Statement is no longer effective, (ii) the
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SEC has issued a stop order with respect thereto, or (iii) the events in
Section 6.04(i) of the Agreement have occurred. If the events in such
Section occur, the Company will immediately prepare and file the necessary
supplement or amendment as contemplated in such Section.
(ii) The Company will provide the transfer agent as of the date hereof a blanket
opinion in a form satisfactory to the transfer agent with respect to the
sale of all of the Warrant Shares pursuant to the Registration Statement.
(iii)The Company agrees it will provide its transfer agent irrevocable
instructions with respect to the issuance of the Warrant Shares in 5,000
share denominations, upon receipt of the exercise notice from Macerich
which provide that the transfer agent will deliver restricted shares in the
name of the entity or person requested by Macerich within three (3)
business days of receiving such notice.
(iv) The Company agrees to provide its transfer agent immediately after the
Warrant Shares are issued irrevocable instructions in the form attached
hereto with respect to the sale of any Warrant Shares pursuant to the
Registration Statement which provide that the transfer agent will deliver
unrestricted shares in the name of the entity or person requested by
Macerich's designated broker to such broker within three (3) business days
of receiving such request.
(v) The Company will make available by phone to Macerich's broker its general
counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or if he cannot be reached ▇▇▇ ▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of Nida & ▇▇▇▇▇▇▇, LLP, its outside counsel, to verify
that the Registration Statement is effective and that the Warrant Shares
may be sold pursuant to the Registration Statement on such dates as
Macerich's broker determines.
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IN WITNESS WHEREOF, this Amendment is entered into by the parties as of the
date above written.
THE MACERICH PARTNERSHIP, L.P.
a Delaware limited partnership
Accepted by:
By: The Macerich Company,
GENESISINTERMEDIA, INC. a Maryland corporation,
its sole general partner
By: ________________________ By: ____________________________
Ramy El-Batrawi ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President Its: Executive Vice President,
General Counsel & Secretary
Exhibit A
Warrant
This exhibit is incorporated by reference to Exhibit 10.58 to Annual Report on
Form 10-K filed with the Securities and Exchange Commission on April 16, 2001
(Commission File No.: 001-15029).
August __, 2001
Via Facsimile (▇▇▇) ▇▇▇-▇▇▇▇ and First Class Mail
U.S. Stock Transfer Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: GenesisIntermedia, Inc.
Letter of Instruction-Issuance
Ladies and Gentlemen:
The shares of Common Stock represented by certificate Nos. ___________ have
been registered for resale pursuant to a Registration Statement (the
"Registration Statement") on Form S-3 filed by the Issuer on April 18, 2001 and
declared effective by the Securities and Exchange Commission (the "Commission")
on May 25, 2001. By this letter, the Issuer irrevocably instructs U.S. Stock
Transfer to effect the transfer and reissue the shares to the transferee thereof
without restrictive legend upon notification from The Macerich Partnership, L.P.
or its representatives, including UBS/▇▇▇▇▇ ▇▇▇▇▇▇, Inc., that: (i) The Macerich
Partnership, L.P. has sold such shares pursuant to the Registration Statement
and in the manner described in the prospectus, as amended pursuant to Rule 424
under the Securities Act of 1933, as amended (the "Securities Act"), included in
the Registration Statement (the "Final Prospectus"); (ii) in effecting such sale
The Macerich Partnership, L.P. has or will deliver the Final Prospectus in
accordance with Section 5(b)(2) of the Securities Act; and (iii) at the time of
the sale, the Company has not notified The Macerich Partnership, L.P. that
either (a) the Registration Statement is no longer effective, (b) the Final
Prospectus contains a material misstatement or omission or (c) the Commission
has issued a stop order with respect to the Registration Statement. The shares
issued pursuant to this letter of instruction shall be delivered no later than
three business days after receipt of such notice to the entity specified in such
notice.
If you need any further information in this regard please contact the
undersigned.
Sincerely,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇