SECOND AMENDMENT TO SERIES B WARRANT TO PURCHASE SHARES OF COMMON STOCK OF BPO MANAGEMENT SERVICES, INC.
EXHIBIT
10.68
SECOND AMENDMENT TO SERIES B
WARRANT TO PURCHASE SHARES OF COMMON STOCK OF BPO MANAGEMENT SERVICES,
INC.
This
Second Amendment to Series B Warrant to Purchase Shares of Common Stock of BPO
Management Services, Inc. (this “Amendment”)
is effective
as of August 29,
2008, by BPO Management Services, Inc., a Delaware corporation (“Issuer”),
in favor of ________________ (“Holder”). Issuer
and Xxxxxx are, together, the “Parties.” Capitalized
terms used but not defined herein shall have the meaning as set forth in the
Stock Purchase Agreement (defined below).
RECITALS
WHEREAS, Issuer, Holder
and certain other investors entered into that certain Series D Convertible
Preferred Stock Purchase Agreement, dated June 13, 2007, which was later amended
as of August 29, 2008 and further amended as of August 29, 2008 (collectively,
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 granted to Holder, among
other things, 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, and
was later amended as of April 18, 2008 (the “Series B Warrant”), and
entitled Holder upon exercise thereof in accordance with the terms contained
therein to purchase up to a certain number of 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;
WHEREAS,
the Parties desire to amend the Series B Warrant to delete certain sections, as
detailed below; and
WHEREAS,
the Series B Warrant shall be deemed amended for all holders of Series B
Warrants upon the execution of this Amendment by the Issuer and the Majority
Holders, and the amendment to each outstanding Series B Warrant of Holder and
all other holders of Series B Warrants shall be effective immediately upon
Issuer’s receipt of signed acknowledgements to this Amendment and/or the
amendments provided to all other holders of Series B Warrants representing the
requisite number of covered shares.
NOW,
THEREFORE, in consideration of the premises 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 to Series B
Warrant. Sections 4(d), 4(e), and 8 of the Series B Warrant
shall be deleted in their entirety and replaced with the
following: “[Reserved].”
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1.1 Effectiveness of
Amendment. The foregoing amendment shall be effective and
binding upon Xxxxxx and its successors and assigns independently of whether
Xxxxxx executes and delivers this Amendment to Issuer in the event that Issuer
receives executed substantially similar written instruments from the Majority
Holders.
ARTICLE
2
MISCELLANEOUS
PROVISIONS
2. Miscellaneous
Provisions.
2.1 No Further
Amendments. Except as amended by this Amendment and the
previous amendments thereto, the Series B Warrant remains unmodified and in full
force and effect. In the event of any inconsistency between the
provisions of the Series B Warrant (as previously amended) 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 B
Warrant as amended by this Amendment and all prior amendments thereto 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]
2
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: | ||
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Name:
Xxxxxxx X. Xxxxx
Its: Chief
Executive Officer
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HOLDER:
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The
undersigned hereby consents to the amendments set forth
herein.
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By:
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| Name: | ||
| Its: | ||
| Date: | ||
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