SECOND AMENDMENT TO SERIES J WARRANT TO PURCHASE SHARES OF PREFERRED STOCK OF BPO MANAGEMENT SERVICES, INC.
EXHIBIT 10.55
SECOND AMENDMENT TO SERIES J
WARRANT TO PURCHASE SHARES OF PREFERRED STOCK OF BPO MANAGEMENT SERVICES,
INC.
This
Second Amendment to Series J Warrant to Purchase Shares of Preferred Stock of
BPO Management Services, Inc. (this “Amendment”) is effective as of
March 24, 2008, by BPO Management Services, Inc., a Delaware corporation (“Issuer”), in favor of
_________________ (“Holder”). Issuer
and Xxxxxx are, together, the “Parties.”
RECITALS
WHEREAS,
Issuer, Holder and certain other investors entered into that certain Series D
Convertible Preferred Stock Purchase Agreement, dated June 13, 2007 (the “Stock Purchase Agreement”),
pursuant to which Holder and the other investors purchased shares of Issuer’s
Series D Convertible Preferred Stock and warrants to purchase shares of Issuer’s
Series D-2 Convertible Preferred Stock and Common Stock (each of such warrants
is described below);
WHEREAS,
in connection with the Stock Purchase Agreement, Issuer previously granted to
Holder that certain Series J Warrant to Purchase Shares of Preferred Stock of
Issuer, which was numbered X-X-07-__, was dated and issued June 13, 2007
(the “Series J
Warrant”), and entitled Holder to exercise the Series J Warrant in
accordance with the terms contained therein for the purchase of up to
_____________ shares of Issuer’s Series D-2 Convertible Preferred Stock (the
“Series J Covered
Shares”) at an initial per-share Warrant Price (as defined in Section 9
of the Series J Warrant) of $14.40 (the “Series J Original Warrant
Price”);
WHEREAS,
effective as of September 28, 2007, Issuer amended the Series J Warrant pursuant
to that certain Amendment to Series J Warrant to Purchase Shares of Preferred
Stock of Issuer (the “First
Amendment”) in order to reduce the Series J Warrant Price from $14.40 to
$9.60 for the period commencing on September 28, 2007 and ending on October 10,
2007;
WHEREAS,
pursuant to the First Amendment, Holder exercised the Series J Warrant with
respect to _________ percent (or _________) of the Series J Covered Shares (the
“Partial Series J
Exercise”);
WHEREAS,
in connection with the Stock Purchase Agreement, Issuer also previously granted
to Holder (a) that certain Series A Warrant to Purchase Shares of Common Stock
of Issuer, which was numbered W-A-07-__, was dated and issued June 13, 2007
(the “Series A
Warrant”), and entitled Holder to exercise the Series A Warrant in
accordance with the terms contained therein for the purchase of up to
___________ shares of Issuer’s Common Stock at an initial per-share Warrant
Price (as defined in Section 9 of the Series A Warrant) of $0.90; (b) that
certain Series B Warrant to Purchase Shares of Common Stock of Issuer, which was
numbered W-B-07-__, was dated and issued June 13, 2007 (the “Series B Warrant”), and
entitled Holder to exercise the Series B Warrant in accordance with the terms
contained therein for the purchase of up to ___________ shares of Issuer’s
Common Stock at an initial per-share Warrant Price (as defined in Section 9 of
the Series B Warrant) of $1.25; (c) that certain Series C Warrant to Purchase
Shares of Common Stock of Issuer, which was numbered W-C-07-__, was dated and
issued June 13, 2007 (as amended from time to time, the “Series C Warrant”), and,
subject to certain conditions precedent, entitled Holder to exercise the Series
C Warrant in accordance with the terms contained therein for the purchase of up
to ___________ shares of Issuer’s Common Stock (the “Series C Covered Shares”) at
an initial per-share Warrant Price (as defined in Section 9 of the Series C
Warrant) of $1.35 (the “Series
C Original Warrant Price”), as amended by that certain Amendment to
Series C Warrant to Purchase Shares of Common Stock of Issuer effective as of
September 28, 2007, which, following the Partial Series J Exercise reduced the
Series C Original Warrant Price as to __________ percent of the Series C Covered
Shares to $0.01 for the remainder of the term of the Series C Warrant; and (d)
that certain Series D Warrant to Purchase Shares of Common Stock of Issuer,
which was numbered W-D-07-__, was dated and issued June 13, 2007 (as
amended from time to time, the “Series D Warrant” and,
together with the Series J Warrant, the Series A Warrant, the Series B Warrant,
and the Series C Warrant, the “Warrants”), and entitled
Holder to exercise the Series D Warrant in accordance with the terms contained
therein for the purchase of up to ___________ shares of Issuer’s Common Stock
(the “Series D Covered
Shares”) at an initial per-share Warrant Price (as defined in Section 9
of the Series D Warrant) of $1.87 (the “Series D Original Warrant
Price”), as amended by that certain Amendment to Series D Warrant to
Purchase Shares of Common Stock of Issuer effective as of September 28, 2007,
which following the Partial Series J Exercise reduced the Series D Original
Warrant Price as to ____________ percent of the Series D Covered Shares to $1.10
for the remainder of the term of the Series D Warrant;
WHEREAS,
Issuer has determined that it will provide another enhanced opportunity to
obtain financing from Holder and certain other parties who originally received
warrants at the same time and on the same terms as the Warrants (the “Other Warrant Holders”), by
offering a reduction to the Series J Original Warrant Price for all of the
remaining, unexercised Series J Covered Shares, which reduction shall be
available until April 18, 2008;
WHEREAS,
in furtherance of the foregoing, Issuer has also determined that, in the event
that Holder exercises any portion of the remaining, unexercised Series J Warrant
affected by such reduction to the Series J Original Warrant Price, the Series C
Original Warrant Price and Series D Original Warrant Price shall be reduced by
amendments to the Series C Warrant and the Series D Warrant effective
for the remainder of the term of the Series C Warrant and the Series D Warrant,
respectively, to $0.01 per share and $0.01 per share, respectively, for the same
percentage of the Series C Covered Shares and Series D Covered Shares as the
percentage of such Series J Covered Shares exercised between the date hereof and
April 18, 2008 (i.e.,
if Holder exercises one-quarter (1/4) of the Series J Warrant during said
period, the Series C Original Warrant Price and the Series D Original Warrant
Price shall be reduced as described herein for an additional one-quarter (1/4)
of the original Series C Warrant and Series D Warrant);
WHEREAS,
the Certificate of Designation of the Relative Rights and Preferences of the
Series D Convertible Preferred Stock of Issuer (the “Series D Certificate of
Designation”) and the Certificate of Designation of the Relative Rights
and Preferences of the Series D-2 Convertible Preferred Stock of Issuer (the
“Series D-2 Certificate of
Designation” and, together with the Series D Certificate of Designation,
the “Certificates of
Designation”) provide for certain anti-dilution protection in the event
that Issuer issues any shares of its Common Stock or any warrants to purchase
its Common Stock for a per-share price less than the then-current applicable
conversion price of the Series D Convertible Preferred Stock and Series D-2
Convertible Preferred Stock of Issuer, respectively;
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WHEREAS,
each of the Warrants provides for certain anti-dilution protection in the event
that Issuer issues any shares of its Common Stock or any warrants to purchase
its Common Stock for a per-share price less than the then-current “Warrant
Price” for such Warrant;
WHEREAS,
Section 11 of the Series J Warrant requires that the Series J Warrant be amended
only by written instrument(s) executed by Issuer and the holders of warrants
exercisable for a majority of the shares of Series D-2 Convertible Preferred
Stock of Issuer issuable upon exercise of the then-outstanding Series J Warrants
issued to Holder and the Other Warrant Holders (the “Majority
Holders”);
WHEREAS,
Issuer shall be deemed to have obtained the signature of the Majority Holders
upon its receipt of signed acknowledgements to this Amendment and/or the
amendments provided to the Other Warrant Holders representing the requisite
number of covered shares and, if Holder has not provided its signed
acknowledgement to this Amendment by the time Issuer has obtained the written
consent of the Majority Holders, Xxxxxx’s signature shall only be required to
evidence its agreement that this Amendment and the other amendments referenced
herein do not trigger any anti-dilution protection set forth in the Warrants or
the Certificates of Designation; and
WHEREAS,
the Parties desire to amend the Series J Warrant to memorialize this
understanding and to execute amendments to the Series C Warrant and the Series D
Warrant (in form and substance which is substantially similar to this
Amendment).
NOW,
THEREFORE, in consideration of the promises and covenants made herein, and for
such other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE
1
AMENDMENT
1.
Amendment;
Waiver.
1.1
Amendment to Series J
Warrant. Effective solely for any exercise by Holder of any
remaining, unexercised Series J Warrant (i.e., up to ____________
shares of Issuer’s Series D-2 Convertible Preferred Stock) (collectively, the
“Amended Warrant Price
Shares”) occurring during the period commencing on the date hereof and
ending on April 18, 2008 (the “Amendment Effective Period”),
the “Warrant Price” specified in Section 9 of the Series J Warrant shall be
$9.60 per share of such Covered Shares. With respect to those Amended
Warrant Price Shares that are not purchased through the exercise of the Series J
Warrant during the Amendment Effective Period, immediately upon expiration
thereof and without any further act of the Parties, the Series J Original
Warrant Price shall be reinstated to such unpurchased Amended Warrant Price
Shares and thereafter apply to all Series J Covered Shares and this Amendment
shall be of no further force and effect.
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1.2
Waiver of Certain
Anti-Dilution Protections. Issuer hereby represents that,
concurrently with the delivery of this Amendment to Holder, it is delivering to
each of the Other Warrant Holders an amendment to its respective outstanding
Series J Warrant for its consideration and acceptance, which amendment is
identical to this Amendment in form and substance. Accordingly, the
Parties agree that neither the contemplated amendments to, nor any offer or
exercise of, the warrants held by the Other Warrant Holders at the prices
contained herein shall be deemed to trigger, or give rise to the triggering of,
any anti-dilution protection contained in the Warrants or the Certificates of
Designation. Notwithstanding anything to the contrary contained in
the Warrants or the Certificates of Designation, neither the transactions
contemplated by this Amendment nor the issuance of any of the Amended Warrant
Price Shares during the Amendment Effective Period to Holder, any Other Warrant
Holder, or any of their respective affiliates shall result in the imposition of
any of the anti-dilution protections in favor of the Holder contained in the
Warrants or the Certificates of Designation. The waivers set forth in
this Section 1.2 shall be effective independently of whether Holder exercises
its Series J Warrant during the Amendment Effective Period.
ARTICLE
2
MISCELLANEOUS
PROVISIONS
2.
Miscellaneous
Provisions.
2.1
No Further
Amendments. Except as amended by this Amendment and the First
Amendment, the Series J Warrant remains unmodified and in full force and
effect. In the event of any inconsistency between the provisions of
the Series J Warrant and the provisions of this Amendment, the provisions of
this Amendment shall prevail. This Amendment may only be modified or
amended by a written agreement executed by Issuer, and consented to by
Xxxxxx, with the same formalities and in the same manner as this
Amendment.
2.2
Counterparts. This
Amendment may be executed in one or more counterparts, each of which shall be
deemed an original but all of which when taken together shall constitute one and
the same instrument. Facsimiles or portable document files
transmitted by e-mail containing original signatures shall be deemed for all
purposes to be originally signed copies of the documents which are the subject
of such facsimiles or files.
2.3
Binding on
Successors. This Amendment shall be
binding upon and shall inure to the benefit of the successors and permitted
assigns of the Parties.
2.4
Entire Agreement.
The Series J
Warrant as amended by this Amendment contains the entire understanding between
the Parties and supersedes any prior written or oral agreements between them
respecting the subject matter contained herein. There are no
representations, agreements, arrangements or understandings, oral or written,
between the Parties relating to the subject matter hereof that are not fully
expressed herein.
[SIGNATURE
PAGE TO FOLLOW]
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IN
WITNESS WHEREOF, the Parties hereto have executed or have caused a duly
authorized officer to execute this Amendment all effective as of the day and
year first above written.
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ISSUER:
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BPO
MANAGEMENT SERVICES, INC.,
a
Delaware corporation
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By:
Name:
Xxxxxxx X. Xxxxx
Its: Chief
Executive Officer
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HOLDER:
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The
undersigned hereby consents to the amendments and waivers set forth herein
and
[ ] Exercises
__________ of the Series J Warrant as of the date hereof, and attached is
the exercise notice required by the Series J Warrant; or
[ ] Does
not exercise any of the Series J Warrant as of the date
hereof.
____________________________________
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By:
Name:
Its:
Date:
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