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,...
Exhibit
10.2
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.
THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT ARE SUBJECT
TO
THE TERMS AND CONDITIONS OF A PURCHASE AGREEMENT DATED MAY 24, 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.
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.
|
No.
W-A7-___
|
Void
After Expiration Date
(as
defined below)
|
WARRANT
TO
PURCHASE COMMON STOCK OF
Dated
May
24,, 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 May 24, 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
$1.3189 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 May 24, 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
Where
|
X
=
|
the
number of shares of Common Stock to be issued to the Holder pursuant
to
this Section 4.2.
|
|
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.
|
|
A
=
|
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.
|
|
B
=
|
the
Exercise Price in effect under this Warrant at the time the net
issue
election is made pursuant to this Section 4.2.
|
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:
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.
THIS
SECURITY IS SUBJECT TO THE TERMS AND CONDITIONS OF A PURCHASE AGREEMENT DATED
MAY 24, 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.
6
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.
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.
|
|
||
|
By:
|
||
|
Name: X.X.
Xxxxxxxx
Title: SVP
and Chief Financial Officer
|
||
Signature
Page to Warrant
|
WARRANT
HOLDER:
[ ]
|
|||
|
By:
|
[ ]
|
||
|
By:
|
|
||
|
Name:
Title:
|
|||
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:
|
(Name
|
||
|
(Address)
|
|
(Signature)
|
||
|
Title:
|
||
(Date)
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:
|
(Name
|
||
|
(Address)
|
|
(Signature)
|
||
|
Title:
|
||
(Date)
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:____________________
|
(Signature
must conform in all respects to name of Holder as specified on
the face of
the Warrant)
|
|
|
(Address)
|
Signed
in
the presence of:
B-1
