Contract
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
SERIES
E-7 WARRANT TO PURCHASE
SHARES
OF
COMMON STOCK
OF
REMOTE
DYNAMICS, INC.
Expires
May __, 2014
|
No.:
W-E-7-06-5D-#
|
Number
of Shares: ________
|
|
Date
of Issuance: May __, 2008
|
FOR
VALUE
RECEIVED, the undersigned, Remote Dynamics, Inc., a Delaware corporation
(together with its successors and assigns, the "Issuer"),
hereby certifies that [name of holder][address of holder] or its registered
assigns is entitled to subscribe for and purchase, during the Term (as
hereinafter defined), up to ____________________ (__________) shares (subject
to
adjustment as hereinafter provided) of the duly authorized, validly issued,
fully paid and non-assessable Common Stock of the Issuer, at an exercise price
per share equal to the Warrant Price then in effect, subject, however, to the
provisions and upon the terms and conditions hereinafter set forth. Capitalized
terms used in this Warrant and not otherwise defined herein shall have the
respective meanings specified in Section 9 hereof.
| 1. |
Term.
The term of this Warrant shall commence on May __, 2008 and shall
expire
at 5:00 p.m., Eastern Time, on May __, 2015 (such period being the
"Term").
|
|
2.
|
Method
of Exercise; Payment; Issuance of New Warrant; Transfer and
Exchange.
|
(a) Time
of Exercise.
The
purchase rights represented by this Warrant may be exercised in whole or in
part
during the Term.
-1-
(b) Method
of Exercise.
The
Holder hereof may exercise this Warrant, in whole or in part, by the surrender
of this Warrant (with the exercise form attached hereto duly executed) at the
principal office of the Issuer, and by the payment to the Issuer of an amount
of
consideration therefor equal to the Warrant Price in effect on the date of
such
exercise multiplied by the number of shares of Warrant Stock with respect to
which this Warrant is then being exercised, payable at such Holder's election
(i) by certified or official bank check or by
wire
transfer to an account designated by the Issuer,
(ii) by
"cashless exercise" in accordance with the provisions of subsection (c) of
this
Section 2, but only when a registration statement under the Securities Act
providing for the resale of the Warrant Stock is not then in effect, or (iii)
by
a combination of the foregoing methods of payment selected by the Holder of
this
Warrant.
(c) Cashless
Exercise.
Notwithstanding any provisions herein to the contrary and commencing one (1)
year following the Original Issue Date if (i) the Per Share Market Value of
one
share of Common Stock is greater than the Warrant Price (at the date of
calculation as set forth below) and (ii) a registration statement under the
Securities Act providing for the resale of the Warrant Stock is not then in
effect by the date such registration statement is required to be effective
pursuant to the Registration Rights Agreement (as defined in the Purchase
Agreement) or not effective at any time during the Effectiveness Period (as
defined in the Registration Rights Agreement) in accordance with the terms
of
the Registration Rights Agreement, in lieu of exercising this Warrant by payment
of cash, the Holder may exercise this Warrant by a cashless exercise and shall
receive the number of shares of Common Stock equal to an amount (as determined
below) by surrender of this Warrant at the principal office of the Issuer
together with the properly endorsed Notice of Exercise in which event the Issuer
shall issue to the Holder a number of shares of Common Stock computed using
the
following formula:
| X = Y - |
(A)(Y)
B
|
|
|
Where
|
X
=
|
the
number of shares of Common Stock to be issued to the
Holder.
|
|
Y
=
|
the
number of shares of Common Stock purchasable upon exercise of all
of the
Warrant or, if only a portion of the Warrant is being exercised,
the
portion of the Warrant being exercised.
|
|
|
A
=
|
the
Warrant Price.
|
|
|
B
=
|
the
Per Share Market Value of one share of Common
Stock.
|
(d) Issuance
of Stock Certificates.
In the
event of any exercise of this Warrant in accordance with and subject to the
terms and conditions hereof, (i) certificates for the shares of Warrant Stock
so
purchased shall be dated the date of such exercise and delivered to the Holder
hereof within a reasonable time, not exceeding three (3) Trading Days after
such
exercise (the “Delivery
Date”)
or, at
the request of the Holder (provided that a registration statement under the
Securities Act providing for the resale of the Warrant Stock is then in effect),
issued and delivered to the Depository Trust Company (“DTC”)
account on the Holder’s behalf via the Deposit Withdrawal Agent Commission
System (“DWAC”)
within
a reasonable time, not exceeding three (3) Trading Days after such exercise,
and
the Holder hereof shall be deemed for all purposes to be the holder of the
shares of Warrant Stock so purchased as of the date of such exercise and (ii)
unless this Warrant has expired, a new Warrant representing the number of shares
of Warrant Stock, if any, with respect to which this Warrant shall not then
have
been exercised (less any amount thereof which shall have been canceled in
payment or partial payment of the Warrant Price as hereinabove provided) shall
also be issued to the Holder hereof at the Issuer's expense within such
time.
-2-
(e) Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon
Exercise.
In
addition to any other rights available to the Holder, if the Issuer fails to
cause its transfer agent to transmit to the Holder a certificate or certificates
representing the Warrant Stock pursuant to an exercise on or before the Delivery
Date, and if after such date the Holder is required by its broker to purchase
(in an open market transaction or otherwise) shares of Common Stock to deliver
in satisfaction of a sale by the Holder of the Warrant Stock which the Holder
anticipated receiving upon such exercise (a “Buy-In”),
then
the Issuer shall (1) pay in cash to the Holder the amount by which (x) the
Holder’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the number of shares of Warrant Stock that the Issuer was
required to deliver to the Holder in connection with the exercise at issue
times
(B) the price at which the sell order giving rise to such purchase obligation
was executed, and (2) at the option of the Holder, either reinstate the portion
of the Warrant and equivalent number of shares of Warrant Stock for which such
exercise was not honored or deliver to the Holder the number of shares of Common
Stock that would have been issued had the Issuer timely complied with its
exercise and delivery obligations hereunder. For example, if the Holder
purchases Common Stock having a total purchase price of $11,000 to cover a
Buy-In with respect to an attempted exercise of shares of Common Stock with
an
aggregate sale price giving rise to such purchase obligation of $10,000, under
clause (1) of the immediately preceding sentence the Issuer shall be required
to
pay the Holder $1,000. The Holder shall provide the Issuer written notice
indicating the amounts payable to the Holder in respect of the Buy-In, together
with applicable confirmations and other evidence reasonably requested by the
Issuer. Nothing herein shall limit a Holder’s right to pursue any other remedies
available to it hereunder, at law or in equity including, without limitation,
a
decree of specific performance and/or injunctive relief with respect to the
Issuer’s failure to timely deliver certificates representing shares of Common
Stock upon exercise of this Warrant as required pursuant to the terms
hereof.
(f) Transferability
of Warrant.
Subject
to Section 2(h), this Warrant may be transferred by a Holder without the consent
of the Issuer. If transferred pursuant to this paragraph, this Warrant may
be
transferred on the books of the Issuer by the Holder hereof in person or by
duly
authorized attorney, upon surrender of this Warrant at the principal office
of
the Issuer, properly endorsed (by the Holder executing an assignment in the
form
attached hereto) and upon payment of any necessary transfer tax or other
governmental charge imposed upon such transfer. This Warrant is exchangeable
at
the principal office of the Issuer for Warrants to purchase the same aggregate
number of shares of Warrant Stock, each new Warrant to represent the right
to
purchase such number of shares of Warrant Stock as the Holder hereof shall
designate at the time of such exchange. All Warrants issued on transfers or
exchanges shall be dated the Original Issue Date and shall be identical with
this Warrant except as to the number of shares of Warrant Stock issuable
pursuant thereto.
-3-
(g) Continuing
Rights of Holder.
The
Issuer will, at the time of or at any time after each exercise of this Warrant,
upon the request of the Holder hereof, acknowledge in writing the extent, if
any, of its continuing obligation to afford to such Holder all rights to which
such Holder shall continue to be entitled after such exercise in accordance
with
the terms of this Warrant, provided
that if
any such Holder shall fail to make any such request, the failure shall not
affect the continuing obligation of the Issuer to afford such rights to such
Holder.
(h) Compliance
with Securities Laws.
(i) The
Holder of this Warrant, by acceptance hereof, acknowledges that this Warrant
and
the shares of Warrant Stock to be issued upon exercise hereof are being acquired
solely for the Holder's own account and not as a nominee for any other party,
and for investment, and that the Holder will not offer, sell or otherwise
dispose of this Warrant or any shares of Warrant Stock to be issued upon
exercise hereof except pursuant to an effective registration statement, or
an
exemption from registration, under the Securities Act and any applicable state
securities laws.
(ii) Except
as
provided in paragraph (iii) below, this Warrant and all certificates
representing shares of Warrant Stock issued upon exercise hereof shall be
stamped or imprinted with a legend in substantially the following
form:
THIS
WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE
STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER
THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES
LAWS
IS NOT REQUIRED.
-4-
(iii) The
Issuer agrees to reissue this Warrant or certificates representing any of the
Warrant Stock, without the legend set forth above if at such time, prior to
making any transfer of any such securities, the Holder shall give written notice
to the Issuer describing the manner and terms of such transfer. Such proposed
transfer will not be effected until: (a) either (i) the Issuer has received
an
opinion of counsel reasonably satisfactory to the Issuer, to the effect that
the
registration of such securities under the Securities Act is not required in
connection with such proposed transfer, (ii) a registration statement under
the
Securities Act covering such proposed disposition has been filed by the Issuer
with the Securities and Exchange Commission and has become effective under
the
Securities Act, (iii) the Issuer has received other evidence reasonably
satisfactory to the Issuer that such registration and qualification under the
Securities Act and state securities laws are not required (which may include
an
opinion of counsel provided by the Issuer), or (iv) the Holder provides the
Issuer with reasonable assurances that such security can be sold pursuant to
Rule 144 under the Securities Act (which may include an opinion of counsel
provided by the Issuer); and (b) either (i) the Issuer has received an opinion
of counsel reasonably satisfactory to the Issuer, to the effect that
registration or qualification under the securities or "blue sky" laws of any
state is not required in connection with such proposed disposition, or (ii)
compliance with applicable state securities or "blue sky" laws has been effected
or a valid exemption exists with respect thereto (which may include an opinion
of counsel provided by the Issuer). The Issuer will respond to any such notice
from a holder within three (3) business days. In the case of any proposed
transfer under this Section 2(h), the Issuer will use reasonable efforts to
comply with any such applicable state securities or "blue sky" laws, but shall
in no event be required, (x) to qualify to do business in any state where it
is
not then qualified, (y) to take any action that would subject it to tax or
to
the general service of process in any state where it is not then subject, or
(z)
to comply with state securities or “blue sky” laws of any state for which
registration by coordination is unavailable to the Issuer. The restrictions
on
transfer contained in this Section 2(h) shall be in addition to, and not by
way
of limitation of, any other restrictions on transfer contained in any other
section of this Warrant. Whenever
a
certificate representing the Warrant Stock is required to be issued to a the
Holder without a legend, in lieu of delivering physical certificates
representing the Warrant Stock, provided the Issuer’s transfer agent is
participating in the DTC Fast Automated Securities Transfer program, the Issuer
shall use its reasonable best efforts to cause its transfer agent to
electronically transmit the Warrant Stock to the Holder by crediting the account
of the Holder's Prime Broker with DTC through its DWAC system (to the extent
not
inconsistent with any provisions of this Warrant or the Purchase
Agreement).
(i) Accredited
Investor Status.
In no
event may the Holder exercise this Warrant in whole or in part unless the Holder
is an “accredited investor” as defined in Regulation D under the Securities Act.
3. Stock
Fully Paid; Reservation and Listing of Shares; Covenants.
(a) Stock
Fully Paid.
The
Issuer represents, warrants, covenants and agrees that all shares of Warrant
Stock which may be issued upon the exercise of this Warrant or otherwise
hereunder will, when issued in accordance with the terms of this Warrant, be
duly authorized, validly issued, fully paid and non-assessable and free from
all
taxes, liens and charges created by or through the Issuer. The Issuer further
covenants and agrees that during the period within which this Warrant may be
exercised, the Issuer will at all times have authorized and reserved for the
purpose of the issuance upon exercise of this Warrant such number of shares
of
Common Stock that are not issued or reserved for issuance as of the Original
Issue Date; provided,
however,
upon
the Issuer filing the Charter Amendment (as defined in the Purchase Agreement),
the Issuer shall
take all action necessary to at all times have authorized, and reserved for
the
purpose of issuance,
free of
preemptive rights and other similar contractual rights of stockholders, a number
of shares of Common Stock equal to one hundred twenty percent
(120%) of the number of shares of Common Stock as shall from time to time be
sufficient to provide for the exercise of this Warrant.
-5-
(b) Reservation.
If any
shares of Common Stock required to be reserved for issuance upon exercise of
this Warrant or as otherwise provided hereunder require registration or
qualification with any Governmental Authority under any federal or state law
before such shares may be so issued, the Issuer will use its reasonable best
efforts as expeditiously as possible at its expense to cause such shares to
be
duly registered or qualified. If the Issuer shall list any shares of Common
Stock on any securities exchange or market it will, at its expense, list
thereon, maintain and increase when necessary such listing, of, all shares
of
Warrant Stock from time to time issued upon exercise of this Warrant or as
otherwise provided hereunder (provided that such Warrant Stock has been
registered pursuant to a registration statement under the Securities Act then
in
effect), and, to the extent permissible under the applicable securities exchange
rules, all unissued shares of Warrant Stock which are at any time issuable
hereunder, so long as any shares of Common Stock shall be so listed. The Issuer
will also so list on each securities exchange or market, and will maintain
such
listing of, any other securities which the Holder of this Warrant shall be
entitled to receive upon the exercise of this Warrant if at the time any
securities of the same class shall be listed on such securities exchange or
market by the Issuer.
(c) Covenants.
The
Issuer shall not by any action including, without limitation, amending the
Certificate of Incorporation or the by-laws of the Issuer, or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other action, avoid or seek to avoid the observance
or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of all
such
actions as may be necessary or appropriate to protect the rights of the Holder
hereof against dilution (to the extent specifically provided herein) or
impairment. Without limiting the generality of the foregoing, the Issuer will
(i) not permit the par value, if any, of its Common Stock to exceed the then
effective Warrant Price, (ii) not amend or modify any provision of the
Certificate of Incorporation or by-laws of the Issuer in any manner that would
adversely affect the rights of the Holders of the Warrants, (iii) take all
such
action as may be reasonably necessary in order that the Issuer may validly
and
legally issue fully paid and nonassessable shares of Common Stock, free and
clear of any liens, claims, encumbrances and restrictions (other than as
provided herein) created by the Issuer upon the exercise of this Warrant, and
(iv) use its reasonable best efforts to obtain all such authorizations,
exemptions or consents from any public regulatory body having jurisdiction
thereof as may be reasonably necessary to enable the Issuer to perform its
obligations under this Warrant.
(d) Loss,
Theft, Destruction of Warrants.
Upon
receipt of evidence satisfactory to the Issuer of the ownership of and the
loss,
theft, destruction or mutilation of any Warrant and, in the case of any such
loss, theft or destruction, upon receipt of indemnity or security satisfactory
to the Issuer or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Issuer will make and deliver, in lieu of
such
lost, stolen, destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the right to purchase the same number of shares of Common
Stock.
-6-
(e) Payment
of Taxes.
The
Issuer will pay any documentary stamp taxes attributable to the initial issuance
of the Warrant Stock issuable upon exercise of this Warrant; provided,
however,
that
the Issuer shall not be required to pay any tax or taxes which may be payable
in
respect of any transfer involved in the issuance or delivery of any certificates
representing Warrant Stock in a name other than that of the Holder in respect
to
which such shares are issued.
4. Adjustment
of Warrant Price.
The
price at which such shares of Warrant Stock may be purchased upon exercise
of
this Warrant shall be subject to adjustment from time to time as set forth
in
this Section 4. The Issuer shall give the Holder notice of any event described
below which requires an adjustment pursuant to this Section 4 in accordance
with
the notice provisions set forth in Section 5.
(a) Recapitalization,
Reorganization, Reclassification, Consolidation, Merger or Sale.
(i)
In
case the Issuer after the Original Issue Date shall do any of the following
(each, a "Triggering
Event"):
(a)
consolidate or merge with or into any other Person and the Issuer shall not
be
the continuing or surviving corporation of such consolidation or merger, or
(b)
permit any other Person to consolidate with or merge into the Issuer and the
Issuer shall be the continuing or surviving Person but, in connection with
such
consolidation or merger, any Capital Stock of the Issuer shall be changed into
or exchanged for Securities of any other Person or cash or any other property,
or (c) transfer all or substantially all of its properties or assets to any
other Person, or (d) effect a capital reorganization or reclassification of
its
Capital Stock, then, and in the case of each such Triggering Event, proper
provision shall be made so that, upon the basis and the terms and in the manner
provided in this Warrant, the Holder of this Warrant shall be entitled upon
the
exercise hereof at any time after the consummation of such Triggering Event,
to
the extent this Warrant is not exercised prior to such Triggering Event, to
receive at the Warrant Price in effect at the time immediately prior to the
consummation of such Triggering Event in lieu of the Common Stock issuable
upon
such exercise of this Warrant prior to such Triggering Event, the Securities,
cash and property to which such Holder would have been entitled upon the
consummation of such Triggering Event if such Holder had exercised the rights
represented by this Warrant immediately prior thereto (including the right
of a
shareholder to elect the type of consideration it will receive upon a Triggering
Event), subject to adjustments (subsequent to such corporate action) as nearly
equivalent as possible to the adjustments provided for elsewhere in this Section
4. Notwithstanding the foregoing to the contrary, this Section 4(a)(i) shall
only apply if the surviving entity pursuant to any such Triggering Event is
a
company has a class of equity securities registered
pursuant to the Securities Exchange Act of 1934, as amended,
and its common stock is listed or quoted on a national securities exchange,
national automated quotation system or the OTC Bulletin Board. In the event
that
the
surviving entity pursuant to any such Triggering Event is not a company that
has
a class of equity securities
registered pursuant to the Securities Exchange Act of 1934, as amended, or
its
common stock is not listed or quoted on a national securities exchange, national
automated quotation system or the OTC Bulletin Board, then the Holder shall
have
the right to demand that the Issuer pay to the Holder an amount equal to the
value of this Warrant according to the Black-Scholes formula.
-7-
(ii) Notwithstanding
anything contained in this Warrant to the contrary and so long as the surviving
entity pursuant to any Triggering Event is a company that has a class of equity
securities
registered pursuant to the Securities Exchange Act of 1934, as amended, and
its
common stock is listed or quoted on a national securities exchange, national
automated quotation system or the OTC Bulletin Board,
a
Triggering Event shall not be deemed to have occurred if, prior to the
consummation thereof, each Person (other than the Issuer) which may be required
to deliver any Securities, cash or property upon the exercise of this Warrant
as
provided herein shall assume, by written instrument delivered to, and reasonably
satisfactory to, the Holder of this Warrant, (A) the obligations of the Issuer
under this Warrant (and if the Issuer shall survive the consummation of such
Triggering Event, such assumption shall be in addition to, and shall not release
the Issuer from, any continuing obligations of the Issuer under this Warrant)
and (B) the obligation to deliver to such Holder such Securities, cash or
property as, in accordance with the foregoing provisions of this subsection
(a),
such Holder shall be entitled to receive, and such Person shall have similarly
delivered to such Holder an opinion of counsel for such Person, which counsel
shall be reasonably satisfactory to such Holder, or in the alternative, a
written acknowledgement executed by the President or Chief Financial Officer
of
the Issuer, stating that this Warrant shall thereafter continue in full force
and effect and the terms hereof (including, without limitation, all of the
provisions of this subsection (a)) shall be applicable to the Securities, cash
or property which such Person may be required to deliver upon any exercise
of
this Warrant or the exercise of any rights pursuant hereto.
(b) Stock
Dividends, Subdivisions and Combinations.
If at
any time the Issuer shall:
(i) make
or
issue or set a record date for the holders of the Common Stock for the purpose
of entitling them to receive a dividend payable in, or other distribution of,
shares of Common Stock,
(ii)
subdivide
its outstanding shares of Common Stock into a larger number of shares of Common
Stock, or
(iii)
combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock,
-8-
then
(1)
the number of shares of Common Stock for which this Warrant is exercisable
immediately after the occurrence of any such event shall be adjusted to equal
the number of shares of Common Stock which a record holder of the same number
of
shares of Common Stock for which this Warrant is exercisable immediately prior
to the occurrence of such event would own or be entitled to receive after the
happening of such event, and (2) the Warrant Price then in effect shall be
adjusted to equal (A) the Warrant Price then in effect multiplied by the number
of shares of Common Stock for which this Warrant is exercisable immediately
prior to the adjustment divided by (B) the number of shares of Common Stock
for
which this Warrant is exercisable immediately after such
adjustment.
(c) Certain
Other Distributions.
If at
any time the Issuer shall make or issue or set a record date for the holders
of
the Common Stock for the purpose of entitling them to receive any dividend
or
other distribution of:
(i) cash
(other than a cash dividend payable out of earnings or earned surplus legally
available for the payment of dividends under the laws of the jurisdiction of
incorporation of the Issuer),
(ii) any
evidences of its indebtedness, any shares of stock of any class or any other
securities or property of any nature whatsoever (other than cash, Common Stock
Equivalents or Additional Shares of Common Stock), or
(iii) any
warrants or other rights to subscribe for or purchase any evidences of its
indebtedness, any shares of stock of any class or any other securities or
property of any nature whatsoever (other than cash, Common Stock Equivalents
or
Additional Shares of Common Stock),
then
(1)
the number of shares of Common Stock for which this Warrant is exercisable
shall
be adjusted to equal the product of the number of shares of Common Stock for
which this Warrant is exercisable immediately prior to such adjustment
multiplied by a fraction (A) the numerator of which shall be the Per Share
Market Value of Common Stock at the date of taking such record and (B) the
denominator of which shall be such Per Share Market Value minus the amount
allocable to one share of Common Stock of any such cash so distributable and
of
the fair value (as determined in good faith by the Board of Directors of the
Issuer and supported by an opinion from an investment banking firm mutually
agreed upon by the Issuer and the Holder) of any and all such evidences of
indebtedness, shares of stock, other securities or property or warrants or
other
subscription or purchase rights so distributable, and (2) the Warrant Price
then
in effect shall be adjusted to equal (A) the Warrant Price then in effect
multiplied by the number of shares of Common Stock for which this Warrant is
exercisable immediately prior to the adjustment divided by (B) the number of
shares of Common Stock for which this Warrant is exercisable immediately after
such adjustment. A reclassification of the Common Stock (other than a change
in
par value, or from par value to no par value or from no par value to par value)
into shares of Common Stock and shares of any other class of stock shall be
deemed a distribution by the Issuer to the holders of its Common Stock of such
shares of such other class of stock within the meaning of this Section 4(c)
and,
if the outstanding shares of Common Stock shall be changed into a larger or
smaller number of shares of Common Stock as a part of such reclassification,
such change shall be deemed a subdivision or combination, as the case may be,
of
the outstanding shares of Common Stock within the meaning of Section
4(b).
-9-
(d) Issuance
of Additional Shares of Common Stock.
In the
event the Issuer shall at any time following the Original Issue Date issue
any
Additional Shares of Common Stock (otherwise than as provided in the foregoing
subsections (b) through (c) of this Section 4), at a price per share less than
the Warrant Price then in effect or without consideration, then the Warrant
Price upon each such issuance shall be adjusted to the price equal to the
consideration per share paid for such Additional Shares of Common
Stock.
(e)
Issuance
of Common Stock Equivalents.
If at
any time the Issuer shall take a record of the holders of its Common Stock
for
the purpose of entitling them to receive a distribution of, or shall in any
manner (whether directly or by assumption in a merger in which the Issuer is
the
surviving corporation) issue or sell, any Common Stock Equivalents, whether
or
not the rights to exchange or convert thereunder are immediately exercisable,
and the price per share for which Common Stock is issuable upon such conversion
or exchange shall be less than the Warrant Price in effect immediately prior
to
the time of such issue or sale, or if, after any such issuance of Common Stock
Equivalents, the price per share for which Additional Shares of Common Stock
may
be issuable thereafter is amended or adjusted, and such price as so amended
shall be less than the Warrant Price in effect at the time of such amendment
or
adjustment, then the Warrant Price then in effect shall be adjusted as provided
in Section 4(d). No further adjustments of the number of shares of Common Stock
for which this Warrant is exercisable and the Warrant Price then in effect
shall
be made upon the actual issue of such Common Stock upon conversion or exchange
of such Common Stock Equivalents.
(f) Other
Provisions applicable to Adjustments under this Section.
The
following provisions shall be applicable to the making of adjustments of the
number of shares of Common Stock for which this Warrant is exercisable and
the
Warrant Price then in effect provided for in this Section 4:
(i) Computation
of Consideration.
To the
extent that any Additional Shares of Common Stock or any Common Stock
Equivalents (or any warrants or other rights therefor) shall be issued for
cash
consideration, the consideration received by the Issuer therefor shall be the
amount of the cash received by the Issuer therefor, or, if such Additional
Shares of Common Stock or Common Stock Equivalents are offered by the Issuer
for
subscription, the subscription price, or, if such Additional Shares of Common
Stock or Common Stock Equivalents are sold to underwriters or dealers for public
offering without a subscription offering, the initial public offering price
(in
any such case subtracting any amounts paid or receivable for accrued interest
or
accrued dividends and without taking into account any compensation, discounts
or
expenses paid or incurred by the Issuer for and in the underwriting of, or
otherwise in connection with, the issuance thereof). In connection with any
merger or consolidation in which the Issuer is the surviving corporation (other
than any consolidation or merger in which the previously outstanding shares
of
Common Stock of the Issuer shall be changed to or exchanged for the stock or
other securities of another corporation), the amount of consideration therefore
shall be, deemed to be the fair value of such portion of the assets and business
of the nonsurviving corporation as the Board may determine to be attributable
to
such shares of Common Stock or Common Stock Equivalents, as the case may be.
Such determination of the fair value of such consideration shall be made by
an
Independent Appraiser. The consideration for any Additional Shares of Common
Stock issuable pursuant to the terms of any Common Stock Equivalents shall
be
the consideration received by the Issuer for issuing such Common Stock
Equivalents, plus the additional consideration, if any, payable to the Issuer
upon the exercise of the right of conversion or exchange in such Common Stock
Equivalents. In the event of any consolidation or merger of the Issuer in which
the Issuer is not the surviving corporation or in which the previously
outstanding shares of Common Stock of the Issuer shall be changed into or
exchanged for the stock or other securities of another corporation, or in the
event of any sale of all or substantially all of the assets of the Issuer for
stock or other securities of any corporation, the Issuer shall be deemed to
have
issued a number of shares of its Common Stock for stock or securities or other
property of the other corporation computed on the basis of the actual exchange
ratio on which the transaction was predicated, and for a consideration equal
to
the fair market value on the date of such transaction of all such stock or
securities or other property of the other corporation. In the event any
consideration received by the Issuer for any securities consists of property
other than cash, the fair market value thereof at the time of issuance or as
otherwise applicable shall be as determined in good faith by the Board. In
the
event Common Stock is issued with other shares or securities or other assets
of
the Issuer for consideration which covers both, the consideration computed
as
provided in this Section 4(f)(i) shall be allocated among such securities and
assets as determined in good faith by the Board.
-10-
(ii) When
Adjustments to Be Made.
The
adjustments required by this Section 4 shall be made whenever and as often
as
any specified event requiring an adjustment shall occur, except that any
adjustment of the number of shares of Common Stock for which this Warrant is
exercisable that would otherwise be required may be postponed (except in the
case of a subdivision or combination of shares of the Common Stock, as provided
for in Section 4(b)) up to, but not beyond the date of exercise if such
adjustment either by itself or with other adjustments not previously made adds
or subtracts less than one percent (1%) of the shares of Common Stock for which
this Warrant is exercisable immediately prior to the making of such adjustment.
Any adjustment representing a change of less than such minimum amount (except
as
aforesaid) which is postponed shall be carried forward and made as soon as
such
adjustment, together with other adjustments required by this Section 4 and
not
previously made, would result in a minimum adjustment or on the date of
exercise. For the purpose of any adjustment, any specified event shall be deemed
to have occurred at the close of business on the date of its
occurrence.
(iii) Fractional
Interests.
In
computing adjustments under this Section 4, fractional interests in Common
Stock
shall be taken into account to the nearest one one-hundredth (1/100th)
of a
share.
(iv) When
Adjustment Not Required.
If the
Issuer shall take a record of the holders of its Common Stock for the purpose
of
entitling them to receive a dividend or distribution or subscription or purchase
rights and shall, thereafter and before the distribution to stockholders
thereof, legally abandon its plan to pay or deliver such dividend, distribution,
subscription or purchase rights, then thereafter no adjustment shall be required
by reason of the taking of such record and any such adjustment previously made
in respect thereof shall be rescinded and annulled.
-11-
(g) Form
of Warrant after Adjustments.
The
form of this Warrant need not be changed because of any adjustments in the
Warrant Price or the number and kind of Securities purchasable upon the exercise
of this Warrant.
(h) Escrow
of Warrant Stock.
If
after any property becomes distributable pursuant to this Section 4 by reason
of
the taking of any record of the holders of Common Stock, but prior to the
occurrence of the event for which such record is taken, and the Holder exercises
this Warrant, any shares of Common Stock issuable upon exercise by reason of
such adjustment shall be deemed the last shares of Common Stock for which this
Warrant is exercised (notwithstanding any other provision to the contrary
herein) and such shares or other property shall be held in escrow for the Holder
by the Issuer to be issued to the Holder upon and to the extent that the event
actually takes place, upon payment of the current Warrant Price. Notwithstanding
any other provision to the contrary herein, if the event for which such record
was taken fails to occur or is rescinded, then such escrowed shares shall be
cancelled by the Issuer and escrowed property returned.
5. Notice
of Adjustments.
Whenever the Warrant Price or Warrant Share Number shall be adjusted pursuant
to
Section 4 hereof (for purposes of this Section 5, each an "adjustment"),
the
Issuer shall cause its Chief Financial Officer to prepare and execute a
certificate setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board made
any
determination hereunder), and the Warrant Price and Warrant Share Number after
giving effect to such adjustment, and shall cause copies of such certificate
to
be delivered to the Holder of this Warrant promptly after each adjustment.
Any
dispute between the Issuer and the Holder of this Warrant with respect to the
matters set forth in such certificate may at the option of the Holder of this
Warrant be submitted to a national or regional accounting firm reasonably
acceptable to the Issuer and the Holder, provided
that the
Issuer shall have ten (10) days after receipt of notice from such Holder of
its
selection of such firm to object thereto, in which case such Holder shall select
another such firm and the Issuer shall have no such right of objection. The
firm
selected by the Holder of this Warrant as provided in the preceding sentence
shall be instructed to deliver a written opinion as to such matters to the
Issuer and such Holder within thirty (30) days after submission to it of such
dispute. Such opinion shall be final and binding on the parties hereto. The
costs and expenses of the initial accounting firm shall be paid equally by
the
Issuer and the Holder and, in the case of an objection by the Issuer, the costs
and expenses of the subsequent accounting firm shall be paid in full by the
Issuer.
6. Fractional
Shares.
No
fractional shares of Warrant Stock will be issued in connection with any
exercise hereof, but in lieu of such fractional shares, the Issuer shall round
the number of shares to be issued upon exercise up to the nearest whole number
of shares.
-12-
7. Ownership
Cap and Certain Exercise Restrictions.
(a)
Notwithstanding anything to the contrary set forth in this Warrant, at no time
may a Holder of this Warrant exercise this Warrant if the number of shares
of
Common Stock to be issued pursuant to such exercise would exceed, when
aggregated with all other shares of Common Stock owned by such Holder at such
time, the number of shares of Common Stock which would result in such Holder
beneficially owning (as determined in accordance with Section 13(d) of the
Exchange Act and the rules thereunder) in excess of 4.9% of the then issued
and
outstanding shares of Common Stock; provided,
however,
that
upon a holder of this Warrant providing the Issuer with sixty-one (61) days
notice (pursuant to Section 13 hereof) (the "Waiver
Notice")
that
such Holder would like to waive this Section 7(a) with regard to any or all
shares of Common Stock issuable upon exercise of this Warrant, this Section
7(a)
will be of no force or effect with regard to all or a portion of the Warrant
referenced in the Waiver Notice; provided,
further,
that
this provision shall be of no further force or effect during the sixty-one
(61)
days immediately preceding the expiration of the term of this
Warrant.
(b) The
Holder may not exercise the Warrant hereunder to the extent such exercise would
result in the Holder beneficially owning (as determined in accordance with
Section 13(d) of the Exchange Act and the rules thereunder) in excess of 9.9%
of
the then issued and outstanding shares of Common Stock, including shares
issuable upon exercise of the Warrant held by the Holder after application
of
this Section; provided,
however,
that
upon a holder of this Warrant providing the Issuer with a Waiver Notice that
such holder would like to waive this Section 7(b) with regard to any or all
shares of Common Stock issuable upon exercise of this Warrant, this Section
7(b)
shall be of no force or effect with regard to those shares of Warrant Stock
referenced in the Waiver Notice; provided,
further,
that
this provision shall be of no further force or effect during the sixty-one
(61)
days immediately preceding the expiration of the term of this
Warrant.
8. Call.
Notwithstanding
anything herein to the contrary, the Issuer may at any time following the
Original Issue Date call up to one hundred percent (100%) of this Warrant then
still outstanding by providing the Holder of this Warrant written notice
pursuant to Section 13 (the “Call
Notice”);
provided,
that,
in
connection with any call by the Issuer under this Section 8, (A) the Per Share
Market Value of the Common Stock has been greater than $0.10 per share for
a
period of ten (10) consecutive Trading Days immediately prior to the date of
delivery of the Call Notice (a “Call
Notice Period”)
and
the
average daily trading volume during the Call Notice Period exceeds 1,000,000
shares of Common Stock;
(B)
either
the shares of Common Stock are eligible for resale pursuant to Rule 144 under
the Securities Act or a
registration statement under the Securities Act providing for the resale of
the
Warrant Stock (the
“Registration
Statement”)
is
then in effect and has been effective, without lapse or suspension of any kind,
for a period of twenty (20) consecutive calendar days, (C) trading in the Common
Stock shall not have been suspended by the Securities and Exchange Commission
or
the OTC Bulletin Board (or other exchange or market on which the Common Stock
is
trading), (D) the Issuer is in material compliance with the terms and conditions
of this Warrant and (E) the
Issuer is not in possession of any material non-public information;
provided,
further,
that
the Registration Statement must be effective from the date of delivery of the
Call Notice until the date which is the later of (i) the date the Holder
exercises the Warrant pursuant to the Call Notice and (ii) the 20th
day
after the Holder receives the Call Notice (the “Early
Termination Date”).
The
rights and privileges granted pursuant to this Warrant with respect to the
shares of Warrant Stock subject to the Call Notice (the “Called
Warrant Shares”)
shall
expire on the Early Termination Date if this Warrant is not exercised with
respect to such Called Warrant Shares prior to such Early Termination Date.
In
the event this Warrant is not exercised with respect to the Called Warrant
Shares, the Issuer shall remit to the Holder of this Warrant (i) $.001 per
Called Warrant Share and (ii) a new Warrant representing the number of shares
of
Warrant Stock, if any, which shall not have been subject to the Call Notice
upon
the Holder tendering to the Issuer the applicable Warrant
certificate.
Notwithstanding anything in the foregoing to the contrary, if the Holder may
not
exercise this Warrant as a result of the restrictions contained in Section
7
hereof, the Call Notice shall be deemed null and void and shall not be deemed
effective until the date that the Holder may exercise this Warrant in accordance
with Section 7 hereof.
-13-
9. Definitions.
For the
purposes of this Warrant, the following terms have the following
meanings:
"Additional
Shares of Common Stock"
means
all shares of Common Stock issued by the Issuer after the Original Issue Date,
and all shares of Other Common, if any, issued by the Issuer after the Original
Issue Date, except: (i) securities issued (other than for cash) in connection
with a merger, acquisition, or consolidation, (ii) securities issued pursuant
to
the conversion or exercise of convertible or exercisable securities issued
or
outstanding on or prior to the date hereof or issued pursuant to the Purchase
Agreement or the Share Exchange Transaction (as defined in the Purchase
Agreement), (iii) the Warrant Stock, (iv) securities issued in connection with
bona fide strategic license agreements or other partnering arrangements so
long
as such issuances are not for the purpose of raising capital, (v) Common Stock
issued or the issuance or grants of options to purchase Common Stock pursuant
to
the Issuer’s stock option plans and employee stock purchase plans as they now
exist on the Original Issue Date, (vi) any warrants issued to the placement
agent and its designees for the transactions contemplated by the Purchase
Agreement, (vii) Common Stock issued in connection with consulting or advisory
services not in excess of 50,000,000 shares, and (viii) the payment of any
principal in shares of Common Stock pursuant to the Notes or the promissory
notes issued pursuant to the Share Exchange Transaction.
"Board"
shall
mean the Board of Directors of the Issuer.
"Capital
Stock"
means
and includes (i) any and all shares, interests, participations or other
equivalents of or interests in (however designated) corporate stock, including,
without limitation, shares of preferred or preference stock, (ii) all
partnership interests (whether general or limited) in any Person which is a
partnership, (iii) all membership interests or limited liability company
interests in any limited liability company, and (iv) all equity or ownership
interests in any Person of any other type.
-14-
"Certificate
of Incorporation"
means
the Certificate of Incorporation of the Issuer as in effect on the Original
Issue Date, and as hereafter from time to time amended, modified, supplemented
or restated in accordance with the terms hereof and thereof and pursuant to
applicable law.
"Common
Stock"
means
the Common Stock, par value $.01 per share, of the Issuer and any other Capital
Stock into which such stock may hereafter be changed.
"Common
Stock Equivalent"
means
any Convertible Security or warrant, option or other right to subscribe for
or
purchase any Additional Shares of Common Stock or any Convertible
Security.
"Convertible
Securities"
means
evidences of Indebtedness, shares of Capital Stock or other Securities which
are
or may be at any time convertible into or exchangeable for Additional Shares
of
Common Stock. The term "Convertible Security" means one of the Convertible
Securities.
"Governmental
Authority"
means
any governmental, regulatory or self-regulatory entity, department, body,
official, authority, commission, board, agency or instrumentality, whether
federal, state or local, and whether domestic or foreign.
"Holders"
mean
the Persons who shall from time to time own any Warrant. The term "Holder"
means
one of the Holders.
"Independent
Appraiser"
means a
nationally recognized or major regional investment banking firm or firm of
independent certified public accountants of recognized standing (which may
be
the firm that regularly examines the financial statements of the Issuer) that
is
regularly engaged in the business of appraising the Capital Stock or assets
of
corporations or other entities as going concerns, and which is not affiliated
with either the Issuer or the Holder of any Warrant.
"Issuer"
means
Remote Dynamics, Inc., a Delaware corporation, and its successors.
"Majority
Holders"
means
at any time the Holders of Warrants exercisable for a majority of the shares
of
Warrant Stock then issuable under the outstanding Warrants at that
time.
“Notes”
means
the series B subordinated secured convertible promissory notes issued
by
the Issuer to the Purchasers pursuant to the Purchase Agreement.
"Original
Issue Date"
means
May __, 2008.
"OTC
Bulletin Board"
means
the over-the-counter electronic bulletin board.
-15-
"Other
Common"
means
any other Capital Stock of the Issuer of any class which shall be authorized
at
any time after the date of this Warrant (other than Common Stock), have the
right to participate in the distribution of earnings and assets of the Issuer
without limitation as to amount and are issuable upon conversion, exchange
or
exercise of any debt or equity securities of the Issuer.
“Outstanding
Common Stock”
means,
at any given time, the aggregate amount of outstanding shares of Common Stock,
assuming full exercise, conversion or exchange (as applicable) of all options,
warrants and other Securities which are convertible into or exercisable or
exchangeable for, and any right to subscribe for, shares of Common Stock that
are outstanding at such time.
"Person"
means
an individual, corporation, limited liability company, partnership, joint stock
company, trust, unincorporated organization, joint venture, Governmental
Authority or other entity of whatever nature.
"Per
Share Market Value"
means
on any particular date (a) the VWAP, or (b) if the Common Stock is not then
publicly traded the fair market value of a share of Common Stock as determined
by an Independent Appraiser selected in good faith by the Majority Holders;
provided,
however,
that
the Issuer, after receipt of the determination by such Independent Appraiser,
shall have the right to select an additional Independent Appraiser, in which
case, the fair market value shall be equal to the average of the determinations
by each such Independent Appraiser; and provided,
further
that all
determinations of the Per Share Market Value shall be appropriately adjusted
for
any stock dividends, stock splits or other similar transactions during such
period. The determination of fair market value by an Independent Appraiser
shall
be based upon the fair market value of the Issuer determined on a going concern
basis as between a willing buyer and a willing seller and taking into account
all relevant factors determinative of value, and shall be final and binding
on
all parties. In determining the fair market value of any shares of Common Stock,
no consideration shall be given to any restrictions on transfer of the Common
Stock imposed by agreement or by federal or state securities laws, or to the
existence or absence of, or any limitations on, voting rights.
"Purchase
Agreement"
means
the Note and Warrant Purchase Agreement dated as of November 30, 2006, among
the
Issuer and the Purchasers, as amended.
"Purchasers"
means
the purchasers of the Notes and
the
Warrants issued by the Issuer pursuant to the Purchase Agreement.
"Securities"
means
any debt or equity securities of the Issuer, whether now or hereafter
authorized, any instrument convertible into or exchangeable for Securities
or a
Security, and any option, warrant or other right to purchase or acquire any
Security. "Security" means one of the Securities.
-16-
"Securities
Act"
means
the Securities Act of 1933, as amended, or any similar federal statute then
in
effect.
"Subsidiary"
means
any corporation at least 50% of whose outstanding Voting Stock shall at the
time
be owned directly or indirectly by the Issuer or by one or more of its
Subsidiaries, or by the Issuer and one or more of its Subsidiaries.
"Term"
has the
meaning specified in Section 1 hereof.
"Trading
Day"
means
(a) a day on which the Common Stock is traded on the OTC Bulletin Board, or
(b)
if the Common Stock is not traded on the OTC Bulletin Board, a day on which
the
Common Stock is quoted in the over-the-counter “pink sheets’ market as reported
by the National Quotation Bureau Incorporated (or any similar organization
or
agency succeeding its functions of reporting prices); provided,
however,
that in
the event that the Common Stock is not listed or quoted as set forth in (a)
or
(b) hereof, then Trading Day shall mean any day except Saturday, Sunday and
any
day which shall be a legal holiday or a day on which banking institutions in
the
State of New York are authorized or required by law or other government action
to close.
"Voting
Stock"
means,
as applied to the Capital Stock of any corporation, Capital Stock of any class
or classes (however designated) having ordinary voting power for the election
of
a majority of the members of the Board of Directors (or other governing body)
of
such corporation, other than Capital Stock having such power only by reason
of
the happening of a contingency.
“VWAP”
means,
for any date, (i) the daily volume weighted average price of the Common Stock
for such date on the OTC Bulletin Board as reported by Bloomberg Financial
L.P.
(based on a Trading Day from 9:30 a.m. Eastern Time to 4:02 p.m. Eastern Time);
(ii) if the Common Stock is not then listed or quoted on the OTC Bulletin
Board and if prices for the Common Stock are then reported in the “Pink Sheets”
published by the Pink Sheets, LLC (or a similar organization or agency
succeeding to its functions of reporting prices), then the average of the “Pink
Sheet” quotes for the five (5) Trading Days preceding the date of determination;
or (iii) in all other cases, the fair market value of a share of Common
Stock as determined by an independent appraiser selected in good faith by the
Holder and reasonably acceptable to the Maker.
"Warrants"
means
the Warrants issued and sold pursuant to the Purchase Agreement, including,
without limitation, this Warrant, and any other warrants of like tenor issued
in
substitution or exchange for any thereof pursuant to the provisions of Section
2(c), 2(d) or 2(e) hereof or of any of such other Warrants.
"Warrant
Price"
initially means $1.00, as such price may be adjusted from time to time as shall
result from the adjustments specified in this Warrant, including Section 4
hereto.
-17-
"Warrant
Share Number"
means
at any time the aggregate number of shares of Warrant Stock which may at such
time be purchased upon exercise of this Warrant, after giving effect to all
prior adjustments and increases to such number made or required to be made
under
the terms hereof.
"Warrant
Stock"
means
Common Stock issuable upon exercise of any Warrant or Warrants or otherwise
issuable pursuant to any Warrant or Warrants.
10. Other
Notices.
In case
at any time:
|
(A)
|
the
Issuer shall make any distributions to the holders of Common Stock;
or
|
|
(B)
|
the
Issuer shall authorize the granting to all holders of its Common
Stock of
rights to subscribe for or purchase any shares of Capital Stock of
any
class or other rights; or
|
|
(C)
|
there
shall be any reclassification of the Capital Stock of the Issuer;
or
|
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(D)
|
there
shall be any capital reorganization by the Issuer;
or
|
|
(E)
|
there
shall be any (i) consolidation or merger involving the Issuer or
(ii)
sale, transfer or other disposition of all or substantially all of
the
Issuer's property, assets or business (except a merger or other
reorganization in which the Issuer shall be the surviving corporation
and
its shares of Capital Stock shall continue to be outstanding and
unchanged
and except a consolidation, merger, sale, transfer or other disposition
involving a wholly-owned Subsidiary);
or
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(F)
|
there
shall be a voluntary or involuntary dissolution, liquidation or winding-up
of the Issuer or any partial liquidation of the Issuer or distribution
to
holders of Common Stock;
|
then,
in
each of such cases, the Issuer shall give written notice to the Holder of the
date on which (i) the books of the Issuer shall close or a record shall be
taken
for such dividend, distribution or subscription rights or (ii) such
reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding-up, as the case may be, shall take place.
Such notice also shall specify the date as of which the holders of Common Stock
of record shall participate in such dividend, distribution or subscription
rights, or shall be entitled to exchange their certificates for Common Stock
for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, disposition, dissolution, liquidation
or winding-up, as the case may be. Such notice shall be given no sooner than
fifteen (15) days and not later than ten (10) days prior to the record date
or
the date on which the Issuer's transfer books are closed in respect thereto.
This Warrant entitles the Holder to receive copies of all financial and other
information distributed or required to be distributed to the holders of the
Common Stock.
-18-
11. Amendment
and Waiver.
Any
term, covenant, agreement or condition in this Warrant may be amended, or
compliance therewith may be waived (either generally or in a particular instance
and either retroactively or prospectively), by a written instrument or written
instruments executed by the Issuer and the Majority Holders; provided,
however,
that no
such amendment or waiver shall reduce the Warrant Share Number, increase the
Warrant Price, shorten the period during which this Warrant may be exercised
or
modify any provision of this Section 11 without the consent of the Holder of
this Warrant. No consideration shall be offered or paid to any person to amend
or consent to a waiver or modification of any provision of this Warrant unless
the same consideration is also offered to all holders of the
Warrants.
12. Governing
Law; Jurisdiction.
This
Warrant shall be governed by and construed in accordance with the internal
laws
of the State of New York, without giving effect to any of the conflicts of
law
principles which would result in the application of the substantive law of
another jurisdiction. This Warrant shall not be interpreted or construed with
any presumption against the party causing this Warrant to be drafted. The Issuer
and the Holder agree that venue for any dispute arising under this Warrant
will
lie exclusively in the state or federal courts located in New York County,
New
York, and the parties irrevocably waive any right to raise forum
non conveniens
or any
other argument that New York is not the proper venue. The Issuer and the Holder
irrevocably consent to personal jurisdiction in the state and federal courts
of
the state of New York. The Issuer and the Holder consent to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party
at the address in effect for notices to it under this Warrant and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing in this Section 12 shall affect or limit any right to serve
process in any other manner permitted by law. The Issuer and the Holder hereby
agree that the prevailing party in any suit, action or proceeding arising out
of
or relating to this Warrant or the Purchase Agreement, shall be entitled to
reimbursement for reasonable legal fees from the non-prevailing party. The
parties hereby waive all rights to a trial by jury.
13. Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earlier of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified for
notice prior to 5:00 p.m., eastern time, on a Trading Day, (ii) the Trading
Day
after the date of transmission, if such notice or communication is delivered
via
facsimile at the facsimile telephone number specified for notice later than
5:00
p.m., eastern time, on any date and earlier than 11:59 p.m., eastern time,
on
such date, (iii) the Trading Day following the date of mailing, if sent by
overnight delivery by a nationally recognized overnight courier service or
(iv)
actual receipt by the party to whom such notice is required to be given. The
addresses for such communications shall be with respect to the Holder of this
Warrant or of Warrant Stock issued pursuant hereto, addressed to such Holder
at
its last known address or facsimile number appearing on the books of the Issuer
maintained for such purposes, or with respect to the Issuer, addressed
to:
-19-
|
Remote
Dynamics, Inc.
|
|
|
000
Xxxxxxxx Xxxxx, Xxxxx 000
|
|
|
Xxxxx,
Xxxxx 00000
|
|
|
Attention:
Chief Executive Officer
|
|
|
Tel.
No.: (000) 000-0000
|
|
|
Fax
No.: (000) 000-0000
|
|
|
with
copies (which copies
shall
not constitute notice
to
the Issuer) to:
|
Xxxxxxxxxx
& Xxxxx LLP
|
|
000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
Xxxx X. Xxxxxxx
|
|
|
Tel.
No.: (000) 000-0000
|
|
|
Fax
No.: (000) 000-0000
|
Copies
of
notices to the Holder shall be sent to Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxxxx
X.
Xxxxxxx, Tel. No.: (000) 000-0000, Fax. No.: (000) 000-0000. Any party hereto
may from time to time change its address for notices by giving at least ten
(10)
days written notice of such changed address to the other party
hereto.
14. Warrant
Agent.
The
Issuer may, by written notice to each Holder of this Warrant, appoint an agent
for the purpose of issuing shares of Warrant Stock on the exercise of this
Warrant pursuant to subsection (b) of Section 2 hereof, exchanging this Warrant
pursuant to subsection (d) of Section 2 hereof or replacing this Warrant
pursuant to subsection (d) of Section 3 hereof, or any of the foregoing, and
thereafter any such issuance, exchange or replacement, as the case may be,
shall
be made at such office by such agent.
15. Remedies.
The
Issuer stipulates that the remedies at law of the Holder of this Warrant in
the
event of any default or threatened default by the Issuer in the performance
of
or compliance with any of the terms of this Warrant may not be adequate and
that, to the fullest extent permitted by law, such terms may be specifically
enforced by a decree for the specific performance of any agreement contained
herein or by an injunction against a violation of any of the terms hereof or
otherwise.
16. Successors
and Assigns.
This
Warrant and the rights evidenced hereby shall inure to the benefit of and be
binding upon the successors and assigns of the Issuer, the Holder hereof and
(to
the extent provided herein) the Holders of Warrant Stock issued pursuant hereto,
and shall be enforceable by any such Holder or Holder of Warrant
Stock.
-20-
17. Modification
and Severability.
If, in
any action before any court or agency legally empowered to enforce any provision
contained herein, any provision hereof is found to be unenforceable, then such
provision shall be deemed modified to the extent necessary to make it
enforceable by such court or agency. If any such provision is not enforceable
as
set forth in the preceding sentence, the unenforceability of such provision
shall not affect the other provisions of this Warrant, but this Warrant shall
be
construed as if such unenforceable provision had never been contained
herein.
18. Headings.
The
headings of the Sections of this Warrant are for convenience of reference only
and shall not, for any purpose, be deemed a part of this Warrant.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Issuer has executed this Series E-7 Warrant as of the
day
and year first above written.
|
REMOTE
DYNAMICS, INC.
|
|
|
By:
|
|
|
Name:
Xxxx Xxxxxxxx
|
|
|
Title:Chief
Executive Officer
|
|
-22-
EXERCISE
FORM
SERIES
E-7 WARRANT
REMOTE
DYNAMICS, INC.
The
undersigned _______________, pursuant to the provisions of the within Warrant,
hereby elects to purchase _____ shares of Common Stock of Remote Dynamics,
Inc.
covered by the within Warrant.
| Dated: _________________ | Signature ___________________________ |
| Address |
Number
of
shares of Common Stock beneficially owned or deemed beneficially owned by the
Holder on the date of Exercise: _________________________
The
undersigned intends that payment of the Warrant Price shall be made as (check
one):
Cash
Exercise_______
Cashless
Exercise_______
If
the
Holder has elected a Cash Exercise, the Holder shall pay the sum of $________
by
certified or official bank check (or via wire transfer) to the Issuer in
accordance with the terms of the Warrant.
If
the
Holder has elected a Cashless Exercise, a certificate shall be issued to the
Holder for the number of shares equal to the whole number portion of the product
of the calculation set forth below, which is ___________. The Company shall
pay
a cash adjustment in respect of the fractional portion of the product of the
calculation set forth below in an amount equal to the product of the fractional
portion of such product and the Per Share Market Value on the date of exercise,
which product is ____________.
| X = Y - |
(A)(Y)
B
|
Where:
The
number of shares of Common Stock to be issued to the Holder
__________________(“X”).
The
number of shares of Common Stock purchasable upon exercise of all of the Warrant
or, if only a portion of the Warrant is being exercised, the portion of the
Warrant being exercised ___________________________ (“Y”).
The
Warrant Price ______________ (“A”).
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The
Per
Share Market Value of one share of Common Stock _______________________
(“B”).
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the within Warrant and all rights evidenced thereby and
does
irrevocably constitute and appoint _____________, attorney, to transfer the
said
Warrant on the books of the within named corporation.
| Dated: _________________ | Signature ___________________________ |
| Address |
PARTIAL
ASSIGNMENT
FOR
VALUE
RECEIVED, _________________ hereby sells, assigns and transfers unto
__________________ the right to purchase _________ shares of Warrant Stock
evidenced by the within Warrant together with all rights therein, and does
irrevocably constitute and appoint ___________________, attorney, to transfer
that part of the said Warrant on the books of the within named
corporation.
| Dated: _________________ | Signature ___________________________ |
|
|
|
| Address |
FOR
USE
BY THE ISSUER ONLY:
This
Warrant No. W-E-7-06-5D-# canceled (or transferred or exchanged) this _____
day
of ___________, _____, shares of Common Stock issued therefore in the name
of
_______________, Warrant No. W-E-7-06-5D-# issued for ____ shares of Common
Stock in the name of _______________.
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