THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT TO THE TERMS AND CONDITIONS OF A PURCHASE AGREEMENT DATED JULY 25, 2007, AS AMENDED, BY AND AMONG THE COMPANY AND THE PURCHASERS NAMED THEREIN. A COPY OF SUCH AGREEMENT...
EXHIBIT
10.2
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THIS
WARRANT AND THE SHARES OF COMMON STOCK WHICH MAY BE PURCHASED PURSUANT
TO
THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”), AND SUCH SECURITIES MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER THE ACT AND THE RULES
AND
REGULATIONS THEREUNDER.
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THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT
ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A PURCHASE AGREEMENT DATED
JULY 25,
2007, AS AMENDED, BY AND AMONG THE COMPANY AND THE PURCHASERS NAMED
THEREIN. A COPY OF SUCH AGREEMENT WILL BE FURNISHED TO THE
RECORD HOLDER OF THIS WARRANT WITHOUT CHARGE UPON WRITTEN REQUEST
TO THE
COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
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THE
SECURITIES REPRESENTED HEREBY MAY BE SUBJECT TO THE TERMS AND CONDITIONS
OF AN AMENDED AND RESTATED SHAREHOLDERS AGREEMENT WHICH MAY PLACE
CERTAIN
RESTRICTIONS ON THE VOTING OF SUCH SECURITIES (INCLUDING THE GRANT
OF AN
IRREVOCABLE PROXY RELATIVE TO VOTING MATTERS). A COPY OF SUCH
AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS SECURITY
WITHOUT
CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE
OF
BUSINESS.
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No.
W-A8-___
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Void
After Expiration Date
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(as
defined below)
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WARRANT
TO
PURCHASE COMMON STOCK OF
Dated
July 25, 2007
THIS
WARRANT CERTIFIES THAT, for value received, ________, or its permitted
transferees (the “Holder”) is entitled to purchase from MTM TECHNOLOGIES,
INC., a New York corporation (the “Company”), up to the number of fully
paid and nonassessable shares (the “Shares”) of Common Stock, $.001 par
value per share, of the Company, as further described and defined
below. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to such terms in that certain Purchase Agreement,
dated July 25, 2007, as amended, by and among the Company, the Holder and
the
purchasers named therein (the “Purchase Agreement”).
Section 1. Number
of
Shares. The maximum number of shares of Common Stock which may be
purchased upon the exercise of this Warrant is ____.
Section 2. Exercise
Price. The price per share at which the Holder may purchase the
Common Stock shall be $1.2947 per share (the “Exercise Price”), as
adjusted from time to time in accordance with Section 6 hereof.
Section 3. Expiration
Date. This Warrant shall expire at 5:00 p.m. New York Time on
July 25, 2011 (the “Expiration Date”). On the Expiration
Date, all rights of the Holder to purchase Common Stock pursuant to this
Warrant
shall immediately terminate.
Section 4. Exercise
and
Payment.
Section 4.1 Exercise.
The
purchase rights represented by this Warrant may be exercised by the Holder,
in
whole or in part at any time, by the surrender of this Warrant (together
with a
duly executed notice of exercise in the form attached hereto as Exhibit
A-1) at the principal office of the Company, and by the payment to the
Company, by wire transfer of immediately available funds, of an amount
equal to
the aggregate Exercise Price of the Shares being purchased.
Section 4.2 Net
Issue
Election. The Holder may elect to receive, without the payment by
the Holder of any additional consideration, shares equal to the value of
this
Warrant or any portion hereof by the surrender of this Warrant or such
portion
(together with a duly executed notice of exercise in the form attached
hereto as
Exhibit A-2) at the principal office of the
Company. Thereupon, the Company shall issue to the Holder such number
of shares of Common Stock as is computed using the following
formula:
2
X
= Y
(A-B)
A
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Where
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X
=
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the
number of shares of Common Stock to be issued to the Holder pursuant
to
this Section 4.2.
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Y
=
|
the
number of shares of Common Stock covered by this Warrant in respect
of
which the net issue election is made pursuant to this
Section 4.2.
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A
=
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the
Fair Market Value of one share of Common Stock, as determined
in
accordance with Section 7 herein, as at the time the net
issue election is made pursuant to this
Section 4.2.
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B
=
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the
Exercise Price in effect under this Warrant at the time the net
issue
election is made pursuant to this
Section 4.2.
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Section 4.3 Stock
Certificates. In the event of the exercise of all or any portion
of this Warrant, certificates for the shares of Common Stock so purchased
shall
be delivered to the Holder by the Company at the Company's own expense
(including the payment by the Company of any applicable issue taxes or
governmental charges imposed in connection with the issuance or delivery
of the
Common Stock) within a reasonable time, which shall in no event be later
than
ten (10) days thereafter and, unless this Warrant has been fully exercised
or
has expired, a new Warrant representing the Shares with respect to which
this
Warrant shall not have been exercised shall also be issued to the Holder
within
such time.
If
this
Warrant shall be surrendered for exercise within any period during which
the
transfer books for shares of the Common Stock or other securities purchasable
upon the exercise of this Warrant are closed for any purpose, the Company
shall
not be required to make delivery of certificates for the securities purchasable
upon such exercise until the date of the reopening of said transfer
books.
Section 5. Stock
Fully Paid;
Reservation of Shares. All of the Shares issuable upon the
exercise of this Warrant will, upon issuance and receipt of the Exercise
Price
therefor, be duly authorized, validly issued, fully paid and nonassessable
with
no personal liability attaching to the ownership thereof, and free and
clear of
all taxes, liens, encumbrances and charges with respect to the issue
thereof. During the period within which this Warrant may be
exercised, the Company shall at all times have authorized and reserved
for
issuance sufficient shares of its Common Stock to provide for the exercise
of
this Warrant.
Section 6. Adjustment
of Exercise
Price and Number of Shares. The number and kind of securities
purchasable upon the exercise of this Warrant and the Exercise Price therefor
3
shall
be
subject to adjustment from time to time upon the occurrence of certain
events,
as follows:
Section 6.1 Adjustments
for
Subdivisions of Common Stock. If the number of shares of Common
Stock outstanding at any time is increased by a stock dividend payable
in shares
of Common Stock or by a subdivision or split up of stock, then the Exercise
Price then in effect shall, concurrently with the effectiveness of such
dividend, subdivision or split up, be proportionately decreased and the
number
of shares of Common Stock issuable upon exercise of this Warrant shall
be
increased in proportion to such increase of outstanding shares of Common
Stock.
Section 6.2 Adjustments
for
Combinations Common Stock. If the number of shares of Common
Stock outstanding at any time is decreased by a combination of the outstanding
shares of Common Stock, then the Exercise Price then in effect shall,
concurrently with the effectiveness of such combination, be proportionately
increased and the number of shares of Common Stock issuable upon exercise
of
this Warrant shall be decreased in proportion to such decrease in outstanding
shares of Common Stock.
Section 6.3 Adjustments
for
Reclassification, Exchange and Substitution. Upon a Notice Event
(as defined below), if the Common Stock issuable upon exercise of this
Warrant
shall be changed into the same or a different number of shares of any other
class or classes of stock, whether by capital reorganization, merger,
reclassification or otherwise (other than a subdivision or combination
of shares
provided for above) this Warrant shall thereafter be exercisable into,
in lieu
of the number of shares of Common Stock which the Holder would otherwise
have
been entitled to receive, a number of shares of such other class or classes
of
stock equivalent to the number of shares of Common Stock that would have
been
subject to receipt by the Holder upon exercise of this Warrant immediately
before that change.
Section 6.4 Notice
of Certain
Events. In the event (each, a “Notice
Event”): (a) the Company authorizes the issuance to all
holders of Common Stock rights or warrants to subscribe for or purchase
shares
of its capital stock, or any other subscription rights or warrants; (b) the
Company authorizes the distribution to all holders of Common Stock evidences
of
indebtedness or assets or other securities; (c) of any capital
reorganization or reclassification of Common Stock, other than a subdivision
or
combination of the outstanding Common Stock and other than a change in
par value
of the Common Stock; (d) of any liquidation or merger to which the Company
is a party and for which approval of any of the Company's holders of Common
Stock is required, other than a consolidation or merger in which the Company
is
the continuing corporation and that does not result in any reclassification
or
change of the shares of Common Stock issuable upon the exercise of this
Warrant;
(e) of the conveyance or transfer of the Company's properties and assets,
substantially as an entirety; or (f) of the Company's voluntary or involuntary
dissolution, liquidation or winding-up; then, in each case, the Company
shall
cause to be mailed by certified mail to the Holder, at least 10 days prior
to the applicable record or effective date hereinafter specified, a notice
stating the material terms relating to the exercise of the Warrants, the
name,
title and telephone number of a
4
Company
representative who shall be available to answer any questions relating
to such
exercise and the dates as of which (i) the holders of Common Stock of record
will be entitled to receive any such rights, warrants or distributions
are to be
determined, (ii) such Notice Event is expected to become effective and
(iii) that Holders of record of Warrants shall be entitled to exchange or
sell their shares of Common Stock issuable upon the exercise of this Warrant
for
securities or other property, if any, deliverable upon such Notice
Event. In addition, if the Company receives written notice that a
purchase, tender or exchange offer has been made to the holders of more
than 50%
of the outstanding Common Stock, the Company shall give the Holder reasonable
notice (but will not be required to give not more than 10 days notice)
thereof.
Section 7. Fractional
Shares. No fractional shares of Common Stock will be issued in
connection with any exercise hereunder. In lieu of such fractional
shares the Company shall make a cash payment therefor based upon the fair
market
value of the Common Stock on such date as determined by the board of directors
of the Company (the “Board of Directors”).
Section 8. Preemptive
Rights.
(a)
The
Holder shall be entitled to purchase its pro rata share (calculated by
multiplying the number of securities issued in such equity offering including
those issued pursuant to this Section 8 by a fraction, the numerator of
which is
the number of shares equal to the sum of (x) the number of issued and
outstanding shares of Common Stock then held by the Holder, plus (y) the
total
number of shares of Common Stock issuable upon the exercise, conversion
or
exchange of all warrants or other rights to subscribe for or to purchase,
or any
options for the purchase of, Common Stock or any stock or security convertible
into or exchangeable for Common Stock (such warrants, rights or options
being
called “Options” and such convertible or exchangeable stock or securities
being called “Convertible Securities”) that are issued and outstanding at
such time that are then held by the Holder (the sum of (x) and (y), a “Fully
Diluted Basis”) and the denominator of which is the number of shares of
Common Stock held by all such holders of securities of the Company on a
Fully
Diluted Basis) of any future private equity offering by the
Company.
(b)
Notwithstanding anything contained in this Section 8(a) to the contrary,
the
preemptive rights of the Holder shall not apply to (a) shares of Common
Stock
sold to, or options to purchase Common Stock granted by the Company to,
employees, consultants, officers, or directors of the Company pursuant
to any
option plan, agreement or other arrangement duly adopted by the Company
and
approved by a majority of the Board of Directors; (b) any shares of Common
Stock
upon the conversion of shares of Series A Preferred Stock; (c) any shares
of
Common Stock pursuant to which the Series A Conversion Price (as such term
is
defined in the Existing Certificate) is adjusted under Section 6; (d) any
shares
of Common Stock issued pursuant to the exchange, conversion or exercise
of any
Options or Convertible Securities that have previously been incorporated
into
computations hereunder on the date when such Options or Convertible Securities
were issued; (e) the issuance and sale of securities in connection
5
with
a
strategic investment or similar transaction approved by a majority of the
Board
of Directors; (f) securities issued for consideration other than cash pursuant
to a merger, consolidation or similar business combination or acquisition
of
assets as approved by a majority of the Board of Directors; (g) the
issuance of shares in connection with a firm commitment underwritten public
offering of Common Stock with a nationally recognized investment banking
firm at
a price per share offered to the public of at least $5.00 per share of
Common
Stock which results in gross cash proceeds to the Company of at least
$25,000,000; (h) any shares of Series A Preferred Stock issued in the form
of a
dividend to any holder of Series A Preferred Stock; and (i) any shares
of Common
Stock issued on exercise of any warrants issued by the Company, on or prior
to
the date of issuance of this Warrant, warrants issued in connection with
the
issuance of Series A-7 Preferred Stock and warrants issued in connection
with
subordinated debt of the Company outstanding on the date of issuance of
this
Warrant.
Section 9. Restrictions
on
Transfer.
Section 9.1 Transfer. The
Holder may transfer this Warrant and the shares of Common Stock issuable
upon
exercise of this Warrant, and the rights and obligations attached thereto,
so
long as (a) any such transfer(s) comply with applicable securities laws
and (b)
unless such securities have been registered in accordance with applicable
securities laws and transferred pursuant to a non-private, open market
transaction on the securities exchange on which the Company’s Common Stock is
listed, if such transferee is not a United States citizen or an entity
formed
under the laws of a U.S. jurisdiction, the Holder obtains the Company’s consent
for such transfer (which shall not be unreasonably withheld).
Section 9.2 Restrictive
Legend. Unless a registration statement is in effect with respect
thereto, each certificate representing (i) the Shares and (ii) any other
securities issued in respect of the Shares upon any stock split, stock
dividend
or recapitalization (collectively, the “Restricted Securities”), shall be
endorsed as follows:
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THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS
AMENDED (THE “ACT”), AND SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF SUCH REGISTRATION
OR AN EXEMPTION THEREFROM UNDER THE ACT AND THE RULES AND REGULATIONS
THEREUNDER.
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|
THIS
SECURITY IS SUBJECT TO THE TERMS AND CONDITIONS OF A PURCHASE
AGREEMENT
DATED JULY 25, 2007, AS AMENDED, BY AND AMONG THE COMPANY AND
THE
PURCHASERS NAMED THEREIN. A COPY OF SUCH AGREEMENT WILL BE
FURNISHED TO THE RECORD HOLDER OF THIS WARRANT WITHOUT CHARGE
UPON WRITTEN
REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
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6
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THIS
SECURITY MAY BE SUBJECT TO THE TERMS AND CONDITIONS OF AN AMENDED
AND
RESTATED SHAREHOLDERS AGREEMENT WHICH MAY PLACE CERTAIN RESTRICTIONS
ON
THE VOTING OF SUCH SECURITIES (INCLUDING THE GRANT OF AN IRREVOCABLE
PROXY
RELATIVE TO VOTING MATTERS). A COPY OF SUCH AGREEMENT WILL BE
FURNISHED TO THE RECORD HOLDER OF THIS SECURITY WITHOUT CHARGE
UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF
BUSINESS.
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Section 10. No
Rights of
Stockholders. This Warrant does not entitle the Holder to any
voting rights as a stockholder of the Company prior to the exercise of
the
Warrant. Nothing in this Warrant shall obligate the Holder to
exercise this Warrant, it being understood that the decision as to whether
to
exercise the Warrant shall be made exclusively by the Holder.
Section 11. No
Impairment. The Company will not, by amendment of its Certificate
of Incorporation, as amended and restated, or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder
by the
Company, but it will at all times in good faith assist in the carrying
out of
all of the provisions of this Warrant and in the taking of all such action
as
may be necessary or appropriate in order to protect the rights of the holder
of
this Warrant against impairment.
Section 12. Loss,
Theft,
Destruction or Mutilation of Warrant. Upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft, destruction
or
mutilation of this Warrant, and in case of loss, theft or destruction,
of
indemnity or security reasonably satisfactory to it, and upon surrender
and
cancellation of this Warrant, if mutilated, the Company will make and deliver
a
new Warrant of like tenor and dated as of such cancellation, in lieu of
this
Warrant.
Section 13. Saturdays,
Sundays,
Holidays, etc. If the last or appointed day for the taking of any
action or the expiration of any right required or granted herein shall
be a
Saturday or a Sunday or shall be a legal holiday, then such action may
be taken
or such right may be exercised on the next succeeding day not a Saturday
or a
Sunday or a legal holiday.
Section 14. Miscellaneous.
Section 14.1 Governing
Law. This Warrant shall be governed by and construed in all
respects in accordance with the laws of the State of New York, without
giving
effect to the conflicts of laws provisions thereof.
Section 14.2 Entire
Agreement;
Amendment. Each party hereby acknowledges that no other party or
any other person or entity has made any promises, warranties,
7
understandings
or representations whatsoever, express or implied, not contained in the
Transaction Documents and acknowledges that it has not executed this Warrant
in
reliance upon any such promises, representations, understandings or warranties
not
contained herein or therein and that the Transaction Documents supersede
all
prior agreements and understandings between the parties with respect
thereto. There are no promises, covenants or undertakings other than
those expressly set forth or provided for in the Transaction
Documents. Neither this Warrant nor any term hereof may be amended,
waived, discharged, or terminated other than by a written instrument signed
by a
63% in Interest Purchasers and the Company. Any amendment, waiver,
discharge or termination so made or effected shall be binding upon all
of the
Holders.
Section 14.3 Successors
and
Assigns. Except as otherwise provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the permitted
successors and assigns, heirs, executors, and administrators of the Company
and
the Holder.
Section 14.4 Severability. Whenever
possible, each provision of this Warrant will be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of
this
Warrant is held to be invalid, illegal or unenforceable in any respect
under any
applicable law or rule in any jurisdiction, such invalidity, illegality
or
unenforceability will not affect any other provision or any other jurisdiction,
but this Warrant will be reformed, construed and enforced in such jurisdiction
to the greatest extent possible to carry out the intentions of the parties
hereto.
Section 14.5 Notices,
etc. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, by overnight courier, or otherwise delivered by
hand or
by messenger or sent by facsimile and confirmed by mail, addressed:
(i) if
to the Company, at to
MTM Technologies, Inc., 0000 Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Chief Executive Officer; and
(ii) if
to the Holder, at the
address of such Holder set forth on the signature page of this
Warrant.
All
notices shall be effective upon receipt.
Section 14.6 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and
the same
instrument.
Section 14.7 Titles
and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8
IN
WITNESS WHEREOF, the undersigned have executed this Warrant as of the date
first
above written.
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By:
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Name:
Title:
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X.X.
Xxxxxxxx
SVP
and Chief Financial Officer
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Signature
Page to Warrant
WARRANT
HOLDER:
[ ].
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By:
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[ ]
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By:
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||
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Name:
Title:
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Signature
Page to Warrant
THE
EXERCISE OF THIS WARRANT IS SUBJECT TO THE APPLICABLE
PROVISIONS
OF THE XXXX-XXXXX-XXXXXX ANTITRUST
IMPROVEMENTS
ACT OF 1976, AS AMENDED
EXHIBIT
A-1
NOTICE
OF EXERCISE
0000
Xxxx Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxx
00000
Attention:
Chief Executive
Officer
1. The
undersigned hereby elects to purchase _________ shares of Common Stock,
par
value $.001 per share, of MTM TECHNOLOGIES, INC. pursuant to the terms
of this
Warrant, and tenders herewith payment of the purchase price of such shares
in
full.
2. Please
issue a certificate or certificates representing said shares of Common
Stock in
the name of the undersigned or in such other name as is specified
below:
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(Name)
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(Address)
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(Signature)
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|
Title:
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(Date)
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A-1
THE
EXERCISE OF THIS WARRANT IS SUBJECT TO THE APPLICABLE
PROVISIONS
OF THE XXXX-XXXXX-XXXXXX ANTITRUST
IMPROVEMENTS
ACT OF 1976, AS AMENDED
EXHIBIT
A-2
NET
ISSUE NOTICE OF EXERCISE
0000
Xxxx Xxxxx Xxxx
Xxxxxxxx,
Xxxxxxxxxxx
00000
Attention:
Chief Executive
Officer
1. The
undersigned hereby elects to purchase _________ shares of Common Stock,
par
value $.001 per share, of MTM TECHNOLOGIES, INC. pursuant to the terms
of this
Warrant, and hereby elects under Section 4.2 of this Warrant to surrender
the right to purchase _______ shares of Common Stock pursuant to this Warrant
for a net issue exercise with respect to ________ shares of Common
Stock.
2. Please
issue a certificate or certificates representing said shares of Common
Stock in
the name of the undersigned or in such other name as is specified
below:
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(Name)
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(Address)
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(Signature)
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Title:
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(Date)
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A-2
EXHIBIT
B
ASSIGNMENT
FORM
(To
be
signed only upon transfer of Warrant)
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
______________________________, whose address is _____________________,
the
right represented by the attached Warrant to purchase _________ shares
of Common
Stock of MTM TECHNOLOGIES, INC., to which the attached Warrant
relates.
Dated:____________________
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(Signature
must conform in all respects to name of Holder as specified on
the face of
the Warrant)
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(Address)
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Signed
in the presence of:
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B-1
