FORM OF WARRANT]
[FORM
OF WARRANT]
NEITHER
THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON CONVERSION OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
Amended
and Restated Warrant To Purchase Common Stock
Warrant
No.: _______
Initial
Number of Shares of Common Stock: _______
Original
Date of Issuance: January 24, 2007 (“Original Issuance Date”)
Date of
Issuance: April ___, 2008 (“Amendment Date”)
Firepond,
Inc., a Delaware corporation (the “Company”), hereby certifies
that, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, ______________, the registered holder hereof or its
permitted assigns (the “Holder”), is entitled, subject
to the terms set forth below, to purchase from the Company, at the Exercise
Price then in effect, upon surrender of this Amended and Restated Warrant to
Purchase Common Stock (including any Warrants to Purchase Common Stock issued in
exchange, transfer or replacement hereof, the “Warrant”), at any time or
times on or after the Amendment Date, but not after 11:59 P.M., New York City
time, on the Expiration Date, such number of fully paid non-assessable shares of
Common Stock as are specified above (the “Warrant
Shares”). This Warrant is one of an issue of Warrants to
Purchase Common Stock (including additional warrants and replacement warrants
issued pursuant to the Amendment and Exchange Agreements (as defined below), the
“Exchanged CAP
Warrants”) issued pursuant to Section 1 of those certain Amendment and
Exchange Agreements, dated as of the Amendment Date, by and between each of the
Buyers (as defined in the Securities Purchase Agreement) and the Company (the
“Amendment and Exchange
Agreements”). This Warrant amends, supplements, modifies and
completely restates and supersedes the warrant, dated as of the Original
Issuance Date (the “Original
Warrant”), issued by the Company to the Holder for the exercise of
[___________] shares of Common Stock pursuant to Section 2.2(a)(iv) of that
certain Master Exchange Agreement, dated as of January 24, 2007, by and among
the Company and the purchasers referred to therein, but shall not, except as
specifically amended hereby or as set forth in the Holder’s Amendment and
Exchange Agreement, constitute a release, satisfaction or novation of any of the
obligations under the Original Warrant or any other Transaction Document (as
defined in the Amendment and Exchange Agreements). Except as
otherwise defined herein, capitalized terms in this Warrant shall have the
meanings set forth in the Amendment and Exchange Agreements.
1. EXERCISE OF
WARRANT.
(a) Mechanics of
Exercise. Subject to the terms and conditions hereof (including, without
limitation, the limitations set forth in Section 1(f)), this Warrant may be
exercised by the Holder on any day on or after the Original Issuance Date in
whole or in part, by (i) delivery of a written notice, in the form attached
hereto as Exhibit A (the
“Exercise Notice”), of
the Holder’s election to exercise this Warrant and (ii) (A) payment to
the Company of an amount equal to the applicable Exercise Price multiplied by
the number of Warrant Shares as to which this Warrant is being exercised (the
“Aggregate Exercise
Price”) in cash or by wire transfer of immediately available funds or
(B) by notifying the Company that this Warrant is being exercised pursuant
to a Cashless Exercise (as defined in Section 1(d)). The Holder shall not
be required to deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice with respect to less
than all of the Warrant Shares shall have the same effect as cancellation of the
original Warrant and issuance of a new Warrant evidencing the right to purchase
the remaining number of Warrant Shares. On or before the first Business Day
following the date on which the Company has received each of the Exercise Notice
and the Aggregate Exercise Price (or notice of a Cashless Exercise) (the “Exercise Delivery Documents”),
the Company shall transmit by facsimile an acknowledgment of confirmation of
receipt of the Exercise Delivery Documents to the Holder and the Company’s
transfer agent (the “Transfer
Agent”). On or before the third Business Day following the date on which
the Company has received all of the Exercise Delivery Documents (the “Share Delivery Date”), the
Company shall (X) provided that the Transfer Agent is participating in The
Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program, upon the request of the Holder, credit such
aggregate number of shares of Common Stock to which the Holder is entitled
pursuant to such exercise to the Holder’s or its designee’s balance account with
DTC through its Deposit Withdrawal Agent Commission system, or (Y) if the
Transfer Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and dispatch by overnight courier to the address as
specified in the Exercise Notice, a certificate, registered in the Company’s
share register in the name of the Holder or its designee, for the number of
shares of Common Stock to which the Holder is entitled pursuant to such
exercise. Upon delivery of the Exercise Delivery Documents or notification to
the Company of a Cashless Exercise referred to in Section 1(d), the Holder
shall be deemed for all corporate purposes to have become the holder of record
of the Warrant Shares in respect of which this Warrant has been exercised,
irrespective of the date of delivery of the certificates evidencing such Warrant
Shares. If this Warrant is submitted in connection with any exercise pursuant to
this Section 1(a) and the number of Warrant Shares represented by this
Warrant submitted for exercise is greater than the number of Warrant Shares
being acquired upon an exercise, then the Company shall as soon as practicable
and in no event later than three (3) Business Days after any exercise and
at its own expense, issue a new Warrant (in accordance with Section 7(d))
representing the right to purchase the number of Warrant Shares purchasable
immediately prior to such exercise under this Warrant, less the number of
Warrant Shares in respect of which this Warrant is exercised. No fractional
shares of Common Stock are to be issued upon the exercise of this Warrant, but
rather the Company shall in lieu thereof make payment to the Holder of cash in
the amount of such fraction multiplied by the Closing Sale Price of one (1)
share of Common Stock on the date of exercise. The Company shall pay any and all
taxes, including without limitation, all documentary stamp, transfer or similar
taxes, or other incidental expense that may be payable with respect to the
issuance and delivery of Warrant Shares upon exercise of this
Warrant.
(b) Exercise Price. For
purposes of this Warrant, “Exercise Price” means Seven
Dollars ($7.00), subject to any and all adjustment as expressly provided
herein.
(c) Company’s Failure to Timely
Deliver Securities. If within three (3) Trading Days after the
Company’s receipt of the facsimile copy of Exercise Delivery Documents, the
Company fails to issue and deliver a certificate for that number of shares of
Common Stock to which the Holder is entitled and register such shares of Common
Stock on the Company’s share register or credit the Holder’s balance account
with DTC for the number of shares of Common Stock to which the Holder is
entitled upon such Holder’s exercise hereunder, and if on or after such Trading
Day the Holder purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder of shares of
Common Stock issuable upon such exercise that the Holder anticipated receiving
from the Company (a “Buy-In”), then the Company
shall, within three (3) Business Days after the Holder’s request and in the
Holder’s discretion, either (i) pay cash to the Holder in an amount equal
to the Holder’s total purchase price (including brokerage commissions, if any)
for the shares of Common Stock so purchased (the “Buy-In Price”), at which point
the Company’s obligation to deliver such certificate (and to issue such shares
of Common Stock) shall terminate, or (ii) promptly honor its obligation to
deliver to the Holder a certificate or certificates representing such shares of
Common Stock and pay cash to the Holder in an amount equal to the excess (if
any) of the Buy-In Price over the product of (A) such number of shares of
Common Stock, times (B) the Closing Bid Price on the date of
exercise.
(d) Cashless Exercise.
Notwithstanding anything contained herein to the contrary, the Holder may, in
its sole discretion, exercise this Warrant in whole or in part and, in lieu of
making the cash payment otherwise contemplated to be made to the Company upon
such exercise in payment of the Aggregate Exercise Price, elect instead to
receive upon such exercise the “Net Number” of shares of Common Stock determined
according to the following formula (a “Cashless
Exercise”):
|
Net
Number = (A x B) - (A x
C)
|
|
B
|
For
purposes of the foregoing formula:
A = the
total number of shares in respect of which this Warrant is then being
exercised.
B = the
Closing Sale Price of the shares of Common Stock (as reported by Bloomberg) on
the date immediately preceding the date of the Exercise Notice.
C = the
Exercise Price then in effect for the applicable Warrant Shares at the time of
such exercise.
(e) Disputes. In the case
of a dispute as to the determination of the Exercise Price or the arithmetic
calculation of the Warrant Shares, the Company shall promptly issue to the
Holder the number of Warrant Shares that are not disputed and resolve such
dispute in accordance with Section 12.
(f) Beneficial Ownership;
Limitations on Exercises. The Company shall not effect the exercise of
this Warrant, and the Holder shall not have the right to exercise this Warrant,
to the extent that after giving effect to such exercise, such Person (together
with such Person’s affiliates) would beneficially own in excess of 4.99% (the
“Maximum Percentage”) of
the number of shares of Common Stock outstanding immediately after giving effect
to such exercise. For purposes of the foregoing sentence, the aggregate number
of shares of Common Stock beneficially owned by such Person and its affiliates
shall include the number of shares of Common Stock issuable upon exercise of
this Warrant with respect to which the determination of such sentence is being
made, but shall exclude the number of shares of Common Stock which would be
issuable upon (i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by such Person and its affiliates and
(ii) exercise or conversion of the unexercised or unconverted portion of
any other securities of the Company beneficially owned by such Person and its
affiliates (including, without limitation, any convertible notes or convertible
preferred stock or warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein. Except as set forth in the
preceding sentence, for purposes of this paragraph, beneficial ownership shall
be calculated in accordance with Section 13(d) of the Securities Exchange
Act of 1934, as amended. For purposes of this Warrant, in determining
the number of outstanding shares of Common Stock, the Holder may rely on the
number of outstanding shares of Common Stock as reflected in (1) the
Company’s most recent Form 10-KSB or 10-K, as applicable, Form 10-QSB or 10-Q,
as applicable, Current Report on Form 8-K or other public filing with the
Securities and Exchange Commission, as the case may be, (2) a more recent
public announcement by the Company or (3) any other notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock
outstanding. For any reason at any time, upon the written or oral request of the
Holder, the Company shall within one Business Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after
giving effect to the conversion or exercise of securities of the Company,
including the Exchanged CAP Notes (as defined in the Amendment and Exchange
Agreements) and the Exchanged CAP Warrants, by the Holder and its affiliates
since the date as of which such number of outstanding shares of Common Stock was
reported. By written notice to the Company, the Holder may from time to time
increase or decrease the Maximum Percentage to any other percentage not in
excess of 9.99% specified in such notice; provided that (i) any such
increase will not be effective until the sixty-first (61st) day
after such notice is delivered to the Company, and (ii) any such increase
or decrease will apply only to the Holder and not to any other holder of
Exchanged CAP Warrants.
(g) Insufficient Authorized
Shares. If at any time while any of the Exchanged CAP Warrants remain
outstanding the Company does not have a sufficient number of authorized and
unreserved shares of Common Stock to satisfy its obligation to reserve for
issuance upon exercise of the Exchanged CAP Warrants at least a number of shares
of Common Stock equal to 130% of the number of shares of Common Stock as shall
from time to time be necessary to effect the exercise of all of the Exchanged
CAP Warrants then outstanding (the “Required Reserve Amount”) (an
“Authorized Share
Failure”), then the Company shall immediately take all action necessary
to increase the Company’s authorized shares of Common Stock to an amount
sufficient to allow the Company to reserve the Required Reserve Amount for the
Exchanged CAP Warrants then outstanding. Without limiting the generality of the
foregoing sentence, as soon as practicable after the date of the occurrence of
an Authorized Share Failure, but in no event later than sixty (60) days
after the occurrence of such Authorized Share Failure, the Company shall hold a
meeting of its stockholders for the approval of an increase in the number of
authorized shares of Common Stock. In connection with such meeting, the Company
shall provide each stockholder with a proxy statement and shall use its best
efforts to solicit its stockholders’ approval of such increase in authorized
shares of Common Stock and to cause its board of directors to recommend to the
stockholders that they approve such proposal.
2. ADJUSTMENT OF EXERCISE PRICE
AND NUMBER OF WARRANT SHARES.
The
Exercise Price and the number of Warrant Shares shall be adjusted from time to
time as follows:
(a) Adjustment upon Issuance of
Shares of Common Stock. If and whenever on or after the Original Issuance
Date the Company issues or sells, or in accordance with this Section 2 is deemed
to have issued or sold, any shares of Common Stock (including the issuance or
sale of shares of Common Stock owned or held by or for the account of the
Company, but excluding any Excluded Securities and shares of Common Stock issued
or deemed to have been issued by the Company in connection with any Excluded
Securities) for a consideration per share less than a price (the “Applicable Price”) equal to
the Exercise Price in effect immediately prior to such issue or sale or deemed
issuance or sale (the foregoing a “Dilutive Issuance”), then
immediately after such Dilutive Issuance, the Exercise Price then in effect
shall be reduced to an amount equal to the product of (A) the Exercise
Price in effect immediately prior to such Dilutive Issuance and (B) the
quotient determined by dividing (1) the sum of (I) the product derived
by multiplying the Exercise Price in effect immediately prior to such Dilutive
Issuance and the number of shares of Common Stock Deemed Outstanding immediately
prior to such Dilutive Issuance plus (II) the consideration, if any,
received by the Company upon such Dilutive Issuance, by (2) the product
derived by multiplying (I) the Exercise Price in effect immediately prior
to such Dilutive Issuance by (II) the number of shares of Common Stock Deemed
Outstanding immediately after such Dilutive Issuance. Upon each such adjustment
of the Exercise Price hereunder, the number of Warrant Shares shall be adjusted
to the number of shares of Common Stock determined by multiplying the Exercise
Price in effect immediately prior to such adjustment by the number of Warrant
Shares acquirable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment. For purposes of determining the adjusted Exercise Price under
this Section 2(a), the following shall be applicable:
(i) Issuance of Options.
If the Company in any manner grants any Options and the lowest price per share
for which one share of Common Stock is issuable upon the exercise of any such
Option or upon conversion, exercise or exchange of any Convertible Securities
issuable upon exercise of any such Option is less than the Applicable Price,
then such share of Common Stock shall be deemed to be outstanding and to have
been issued and sold by the Company at the time of the granting or sale of such
Option for such price per share. For purposes of this Section 2(a)(i), the
“lowest price per share for which one share of Common Stock is issuable upon the
exercise of any such Options or upon conversion, exercise or exchange of any
Convertible Securities issuable upon exercise of any such Option” shall be equal
to the sum of the lowest amounts of consideration (if any) received or
receivable by the Company with respect to any one share of Common Stock upon the
granting or sale of the Option, upon exercise of the Option and upon conversion,
exercise or exchange of any Convertible Security issuable upon exercise of such
Option. No further adjustment of the Exercise Price or number of Warrant Shares
shall be made upon the actual issuance of such shares of Common Stock or of such
Convertible Securities upon the exercise of such Options or upon the actual
issuance of such shares of Common Stock upon conversion, exercise or exchange of
such Convertible Securities.
(ii) Issuance of Convertible
Securities. If the Company in any manner issues or sells any Convertible
Securities and the lowest price per share for which one share of Common Stock is
issuable upon the conversion, exercise or exchange thereof is less than the
Applicable Price, then such share of Common Stock shall be deemed to be
outstanding and to have been issued and sold by the Company at the time of the
issuance or sale of such Convertible Securities for such price per share. For
the purposes of this Section 2(a)(ii), the “lowest price per share for
which one share of Common Stock is issuable upon the conversion, exercise or
exchange thereof” shall be equal to the sum of the lowest amounts of
consideration (if any) received or receivable by the Company with respect to one
share of Common Stock upon the issuance or sale of the Convertible Security
and upon conversion, exercise or exchange of such Convertible
Security. No further adjustment of the Exercise Price or number of Warrant
Shares shall be made upon the actual issuance of such shares of Common Stock
upon conversion, exercise or exchange of such Convertible Securities, and if any
such issue or sale of such Convertible Securities is made upon exercise of any
Options for which adjustment of this Warrant has been or is to be made pursuant
to other provisions of this Section 2(a), no further adjustment of the
Exercise Price or number of Warrant Shares shall be made by reason of such issue
or sale.
(iii) Change in Option Price or
Rate of Conversion. If the purchase price provided for in any Options,
the additional consideration, if any, payable upon the issue, conversion,
exercise or exchange of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exercisable or exchangeable for
shares of Common Stock increases or decreases at any time, the Exercise Price
and the number of Warrant Shares in effect at the time of such increase or
decrease shall be adjusted to the Exercise Price and the number of Warrant
Shares which would have been in effect at such time had such Options or
Convertible Securities provided for such increased or decreased purchase price,
additional consideration or increased or decreased conversion rate, as the case
may be, at the time initially granted, issued or sold. For purposes of this
Section 2(a)(iii), if the terms of any Option or Convertible Security that
was outstanding as of the date of issuance of this Warrant are increased or
decreased in the manner described in the immediately preceding sentence, then
such Option or Convertible Security and the shares of Common Stock deemed
issuable upon exercise, conversion or exchange thereof shall be deemed to have
been issued as of the date of such increase or decrease. No adjustment pursuant
to this Section 2(a) shall be made if such adjustment would result in an
increase of the Exercise Price then in effect or a decrease in the number of
Warrant Shares.
(iv) Calculation of Consideration
Received. In case any Option is issued in connection with the issue or
sale of other securities of the Company, together comprising one integrated
transaction in which no specific consideration is allocated to such Options by
the parties thereto, the Options will be deemed to have been issued for a
consideration of $0.01. If any shares of Common Stock, Options or Convertible
Securities are issued or sold or deemed to have been issued or sold for cash,
the consideration received therefor will be deemed to be the net amount received
by the Company therefor. If any shares of Common Stock, Options or Convertible
Securities are issued or sold for a consideration other than cash, the amount of
such consideration received by the Company will be the fair value of such
consideration, except where such consideration consists of securities, in which
case the amount of consideration received by the Company will be the Closing
Sale Price of such security on the date of receipt. If any shares of Common
Stock, Options or Convertible Securities are issued to the owners of the
non-surviving entity in connection with any merger in which the Company is the
surviving entity, the amount of consideration therefor will be deemed to be the
fair value of such portion of the net assets and business of the non-surviving
entity as is attributable to such shares of Common Stock, Options or Convertible
Securities, as the case may be. The fair value of any consideration other than
cash or securities will be determined jointly by the Company and the Required
Holders. If such parties are unable to reach agreement within
ten (10) days after the occurrence of an event requiring valuation (the
“Valuation Event”), the
fair value of such consideration will be determined within five (5)
Business Days after the tenth day following the Valuation Event by an
independent, reputable appraiser jointly selected by the Company and the
Required Holders. The determination of such appraiser shall be final and binding
upon all parties absent manifest error and the fees and expenses of such
appraiser shall be borne by the Company.
(v) Record Date. If the
Company takes a record of the holders of shares of Common Stock for the purpose
of entitling them (A) to receive a dividend or other distribution payable
in shares of Common Stock, Options or in Convertible Securities or (B) to
subscribe for or purchase shares of Common Stock, Options or Convertible
Securities, then such record date will be deemed to be the date of the issue or
sale of the shares of Common Stock deemed to have been issued or sold upon the
declaration of such dividend or the making of such other distribution or the
date of the granting of such right of subscription or purchase, as the case may
be.
(b) Adjustment upon Subdivision
or Combination of Common Stock. If the Company at any time on or after
the Original Issuance Date subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Exercise Price in effect
immediately prior to such subdivision will be proportionately reduced and the
number of Warrant Shares will be proportionately increased. If the Company at
any time on or after the Original Issuance Date combines (by combination,
reverse stock split or otherwise) one or more classes of its outstanding shares
of Common Stock into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination will be proportionately increased and the
number of Warrant Shares will be proportionately decreased. Any adjustment under
this Section 2(b) shall become effective at the close of business on the
date the subdivision or combination becomes effective.
(c) Adjustment upon Tender
Offer. In case the Company or any of its Subsidiaries shall
purchase any shares of the Company’s Common Stock by means of a tender offer,
then, effective immediately prior to the opening of business on the day after
the last date (the “Tender
Offer Expiration Date”) tenders could have been made pursuant to such
tender offer (as it may be amended) (the last time at which such tenders could
have been made on the Tender Offer Expiration Date is hereinafter sometimes
called the “Tender Offer
Expiration Time”):
(i) the
Exercise Price shall be adjusted so that the same shall equal the price
determined by multiplying the Exercise Price in effect immediately prior to the
close of business on the Tender Offer Expiration Date by a fraction of which:
(A) the numerator shall be the product of the number of shares of Common
Stock outstanding (including Purchased Shares but excluding any shares held in
the treasury of the Company) immediately prior to the Tender Offer Expiration
Time multiplied by the Current Market Price per share of the Common Stock; and
(B) the denominator shall be the sum of (x) the aggregate
consideration (determined as set forth below) payable to stockholders of the
Company based on the acceptance (up to any maximum specified in the terms of the
tender offer) of all shares validly tendered and not withdrawn as of the Tender
Offer Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the “Purchased Shares”) and
(y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares and excluding any shares held in the treasury of the
Company) immediately prior to the Tender Offer Expiration Time and the Current
Market Price per share of Common Stock; and
(ii) the
number of Warrant shares shall be adjusted so that the same shall equal the
number of Warrant Shares in effect immediately prior to the closing of business
on the Tender Offer Expiration Date multiplied by the reciprocal of the fraction
described in the preceding paragraph (i).
For purposes of this clause (c) of
Section 2, the aggregate consideration in any such tender offer shall equal
the sum of the aggregate amount of cash consideration and the aggregate fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive evidence thereof and which shall be evidenced by an Officers’
Certificate delivered to Holder) of any other consideration payable in such
tender offer. In the event that the Company is obligated to purchase shares
pursuant to any such tender offer, but the Company is permanently prevented by
applicable law from effecting any or all such purchases or any or all such
purchases are rescinded, the Exercise Price and number of Warrant Shares shall
again be adjusted to be the Exercise Price and number of Warrant Shares which
would have been in effect based upon the number of shares actually purchased. If
the application of this clause (c) of Section 2 to any tender offer
would result in an increase in the Exercise Price or a decrease in the number of
Warrant Shares, no adjustment shall be made for such tender offer under this
Section 2. For purposes of this clause (c) of Section 2, the term
“tender offer” shall mean and include both tender offers and exchange offers,
all references to “purchases” of shares in tender offers (and all similar
references) shall mean and include both the purchase of shares in tender offers
and the acquisition of shares pursuant to exchange offers, and all references to
“tendered shares” (and all similar references) shall mean and include shares
tendered in both tender offers and exchange offers.
(d) Other Events. If any
event occurs of the type contemplated by the provisions of this Section 2
but not expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom stock rights or
other rights with equity features), then the Company’s Board of Directors will
make an appropriate adjustment in the Exercise Price and the number of Warrant
Shares so as to protect the rights of the Holder; provided that no such
adjustment pursuant to this Section 2(c) will increase the Exercise Price
or decrease the number of Warrant Shares as otherwise determined pursuant to
this Section 2.
3. RIGHTS UPON DISTRIBUTION OF
ASSETS.
If the
Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common Stock, by way
of return of capital or otherwise (including, without limitation, any
distribution of cash, stock or other securities, property or options by way of a
dividend, spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a “Distribution”), at any time
after the issuance of this Warrant, then, in each such case:
(a) any
Exercise Price in effect immediately prior to the close of business on the
record date fixed for the determination of holders of shares of Common Stock
entitled to receive the Distribution shall be reduced, effective as of the close
of business on such record date, to a price determined by multiplying such
Exercise Price by a fraction of which (i) the numerator shall be the
Closing Bid Price of the shares of Common Stock on the Trading Day immediately
preceding such record date minus the value of the Distribution (as determined in
good faith by the Company’s Board of Directors) applicable to one share of
Common Stock, and (ii) the denominator shall be the Closing Bid Price of
the shares of Common Stock on the trading day immediately preceding such record
date; and
(b) the
number of Warrant Shares shall be increased to a number of shares equal to the
number of shares of Common Stock obtainable immediately prior to the close of
business on the record date fixed for the determination of holders of shares of
Common Stock entitled to receive the Distribution multiplied by the reciprocal
of the fraction set forth in the immediately preceding paragraph (a);
provided that in the event that the Distribution is of shares of Common Stock
(or common stock) (“Other
Shares of Common Stock”) of a company whose common shares are traded on a
national securities exchange or a national automated quotation system, then the
Holder may elect to receive a warrant to purchase Other Shares of Common Stock
in lieu of an increase in the number of Warrant Shares, the terms of which shall
be identical to those of this Warrant, except that such warrant shall be
exercisable into the number of shares of Other Shares of Common Stock that would
have been payable to the Holder pursuant to the Distribution had the Holder
exercised this Warrant immediately prior to such record date and with an
aggregate exercise price equal to the product of the amount by which the
exercise price of this Warrant was decreased with respect to the Distribution
pursuant to the terms of the immediately preceding paragraph (a) and the
number of Warrant Shares calculated in accordance with the first part of this
paragraph (b).
4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS
(a) Purchase Rights. In
addition to any adjustments pursuant to Section 2 above, if at any time the
Company grants, issues or sells any Options, Convertible Securities or rights to
purchase stock, warrants, securities or other property pro rata to the record
holders of any class of shares of Common Stock (the “Purchase Rights”), then the
Holder will be entitled to acquire, upon the terms applicable to such Purchase
Rights, the aggregate Purchase Rights which the Holder could have acquired if
the Holder had held the number of shares of Common Stock acquirable upon
complete exercise of this Warrant (without regard to any limitations on the
exercise of this Warrant) immediately before the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record
is taken, the date as of which the record holders of shares of Common Stock are
to be determined for the grant, issue or sale of such Purchase
Rights.
(b) Fundamental
Transactions. If, at any time while this Warrant is
outstanding there is a Fundamental Transaction, then the Holder shall have the
right thereafter to receive, upon exercise of this Warrant, the same amount and
kind of securities, cash or property as it would have been entitled to receive
upon the occurrence of such Fundamental Transaction if it had been, immediately
prior to such Fundamental Transaction, the holder of the number of Warrant
Shares then issuable upon exercise in full of this Warrant (the “Alternate Consideration”). For
purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the
amount of Alternate Consideration issuable in respect of one share of Common
Stock in such Fundamental Transaction, and the Company shall apportion the
Exercise Price among the Alternate Consideration in a reasonable manner
reflecting the relative value of any different components of the Alternate
Consideration. If holders of Common Stock are given any choice as to the
securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it
receives upon any exercise of this Warrant following such Fundamental
Transaction. At the Holder’s option and request made prior to the consummation
of a Fundamental Transaction, any successor to the Company or surviving entity
in such Fundamental Transaction shall, either (1) issue to the Holder a new
warrant substantially in the form of this Warrant and consistent with the
foregoing provisions and evidencing the Holder’s right to purchase the Alternate
Consideration for the aggregate Exercise Price upon exercise thereof, or
(2) purchase the Warrant from the Holder for a purchase price, payable in
cash within five Trading Days after such request (or, if later, on the effective
date of the Fundamental Transaction), equal to the Black Scholes Value of the
remaining unexercised portion of this Warrant on the date of such request. The
terms of any agreement pursuant to which a Fundamental Transaction is effected
shall include terms requiring any such successor or surviving entity to comply
with the provisions of this paragraph (b) and insuring that the Warrant (or
any such replacement security) will be similarly adjusted upon any subsequent
transaction analogous to a Fundamental Transaction.
5. NONCIRCUMVENTION.
The
Company hereby covenants and agrees that the Company will not, by amendment of
its Certificate of Incorporation, Bylaws or through any reorganization, transfer
of assets, consolidation, merger, scheme of arrangement, 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 of this Warrant, and will at all
times in good faith carry out all the provisions of this Warrant and take all
action as may be reasonably required to protect the rights of the Holder.
Without limiting the generality of the foregoing, the Company (i) shall not
increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the Exercise Price then in effect,
(ii) shall take all such actions as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon the exercise of this Warrant, and
(iii) shall, so long as any of the Exchanged CAP Warrants are outstanding,
take all action necessary to reserve and keep available out of its authorized
and unissued shares of Common Stock, solely for the purpose of effecting the
exercise of the Exchanged CAP Warrants, 130% of the number of shares of Common
Stock as shall from time to time be necessary to effect the exercise of the
Exchanged CAP Warrants then outstanding (without regard to any limitations on
exercise).
6. WARRANT HOLDER NOT DEEMED A
STOCKHOLDER.
Except
as otherwise specifically provided herein, the Holder, solely in such
Person’s capacity as a holder of this Warrant, shall not be entitled to vote or
receive dividends or be deemed the holder of share capital of the Company for
any purpose, nor shall anything contained in this Warrant be construed to confer
upon the Holder, solely in such Person’s capacity as the Holder of this Warrant,
any of the rights of a stockholder of the Company or any right to vote, give or
withhold consent to any corporate action (whether any reorganization, issue of
stock, reclassification of stock, consolidation, merger, conveyance or
otherwise), receive notice of meetings, receive dividends or subscription
rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares
which such Person is then entitled to receive upon the due exercise of this
Warrant. In addition, nothing contained in this Warrant shall be construed as
imposing any liabilities on the Holder to purchase any securities (upon exercise
of this Warrant or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company.
Notwithstanding this Section 6, the Company shall provide the Holder with
copies of the same notices and other information given to the stockholders of
the Company generally, contemporaneously with the giving thereof to the
stockholders.
7. REISSUANCE OF
WARRANTS.
(a) Transfer of Warrant.
If this Warrant is to be transferred, the Holder shall surrender this Warrant to
the Company, whereupon the Company will forthwith issue and deliver upon the
order of the Holder a new Warrant (in accordance with Section 7(d)),
registered as the Holder may request, representing the right to purchase the
number of Warrant Shares being transferred by the Holder and, if less then the
total number of Warrant Shares then underlying this Warrant is being
transferred, a new Warrant (in accordance with Section 7(d)) to the Holder
representing the right to purchase the number of Warrant Shares not being
transferred.
(b) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant,
and, in the case of loss, theft or destruction, of any indemnification
undertaking by the Holder to the Company in customary form and, in the case of
mutilation, upon surrender and cancellation of this Warrant, the Company shall
execute and deliver to the Holder a new Warrant (in accordance with
Section 7(d)) representing the right to purchase the Warrant Shares then
underlying this Warrant.
(c) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon the surrender hereof by the
Holder at the principal office of the Company, for a new Warrant or Warrants (in
accordance with Section 7(d)) representing in the aggregate the right to
purchase the number of Warrant Shares then underlying this Warrant, and each
such new Warrant will represent the right to purchase such portion of such
Warrant Shares as is designated by the Holder at the time of such surrender;
provided, however, that no Warrants for fractional shares of Common Stock shall
be given.
(d) Issuance of New
Warrants. Whenever the Company is required to issue a new Warrant
pursuant to the terms of this Warrant, such new Warrant (i) shall be of
like tenor with this Warrant, (ii) shall represent, as indicated on the
face of such new Warrant, the right to purchase the Warrant Shares then
underlying this Warrant (or in the case of a new Warrant being issued pursuant
to Section 7(a) or Section 7(c), the Warrant Shares designated by the
Holder which, when added to the number of shares of Common Stock underlying the
other new Warrants issued in connection with such issuance, does not exceed the
number of Warrant Shares then underlying this Warrant), (iii) shall have an
original issuance date, as indicated on the face of such new Warrant which is
the same as the Original Issuance Date (iv) shall have an amendment
date, as indicated on the face of such new Warrant which is the same as the
Amendment Date, and (v) shall have the same rights and conditions as this
Warrant.
8. NOTICES.
Whenever
notice is required to be given under this Warrant, unless otherwise provided
herein, such notice shall be given pursuant to the notice provisions of the
Amendment and Exchange Agreements. The Company shall provide the Holder with
prompt written notice of all actions taken pursuant to this Warrant, including
in reasonable detail a description of such action and the reason therefor.
Without limiting the generality of the foregoing, the Company will give written
notice to the Holder (i) immediately upon any adjustment of the Exercise
Price, setting forth in reasonable detail, and certifying, the calculation of
such adjustment and (ii) at least fifteen (15) days prior to the date
on which the Company closes its books or takes a record (A) with respect to
any dividend or distribution upon the shares of Common Stock, (B) with
respect to any grants, issuances or sales of any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property to holders
of shares of Common Stock, other than any grant, issuance or sale of any
Excluded Securities (C) for determining rights to vote with respect to any
Fundamental Transaction, dissolution or liquidation, provided in each case that
such information shall be made known to the public prior to or in conjunction
with such notice being provided to the Holder.
9. AMENDMENT AND
WAIVER.
Except as
otherwise provided herein, the provisions of this Warrant may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Required Holders; provided that no such action may increase the
exercise price of any Exchanged CAP Warrant or decrease the number of shares or
class of stock obtainable upon exercise of any Exchanged CAP Warrant without the
written consent of the Holder. No such amendment shall be effective
to the extent that it applies to less than all of the holders of the Exchanged
CAP Warrants then outstanding.
10. GOVERNING
LAW.
This
Warrant shall be governed by and construed and enforced in accordance with, and
all questions concerning the construction, validity, interpretation and
performance of this Warrant shall be governed by, the internal laws of the State
of New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of New York.
11. CONSTRUCTION;
HEADINGS.
This
Warrant shall be deemed to be jointly drafted by the Company and all the
Purchasers and shall not be construed against any Person as the drafter hereof.
The headings of this Warrant are for convenience of reference and shall not form
part of, or affect the interpretation of, this Warrant.
12. DISPUTE
RESOLUTION.
In
the case of a dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall submit the
disputed determinations or arithmetic calculations via facsimile within two
Business Days of receipt of the Exercise Notice giving rise to such dispute, as
the case may be, to the Holder. If the Holder and the Company are unable to
agree upon such determination or calculation of the Exercise Price or the
Warrant Shares within three Business Days of such disputed determination or
arithmetic calculation being submitted to the Holder, then the Company shall,
within two (2) Business Days submit via facsimile (a) the disputed
determination of the Exercise Price to an independent, reputable investment bank
selected by the Company and approved by the Holder or (b) the disputed
arithmetic calculation of the Warrant Shares to the Company’s independent,
outside accountant. The Company shall cause at its expense the investment bank
or the accountant, as the case may be, to perform the determinations or
calculations and notify the Company and the Holder of the results no later than
ten Business Days from the time it receives the disputed determinations or
calculations. Such investment bank’s or accountant’s determination or
calculation, as the case may be, shall be binding upon all parties absent
demonstrable error.
13. REMEDIES, OTHER OBLIGATIONS,
BREACHES AND INJUNCTIVE RELIEF.
The
remedies provided in this Warrant shall be cumulative and in addition to all
other remedies available under this Warrant and the other Transaction Documents
or held at law or in equity (including a decree of specific performance and/or
other injunctive relief), and nothing herein shall limit the right of the Holder
right to pursue actual damages for any failure by the Company to comply with the
terms of this Warrant. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Holder and that the
remedy at law for any such breach may be inadequate. The Company therefore
agrees that, in the event of any such breach or threatened breach, the holder of
this Warrant shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach, without the necessity of showing economic
loss and without any bond or other security being required.
14. TRANSFER.
This
Warrant may be offered for sale, sold, transferred or assigned without the
consent of the Company, except as may otherwise be required by the Amendment and
Exchange Agreements.
15. CERTAIN
DEFINITIONS.
For
purposes of this Warrant, the following terms shall have the following
meanings:
(a) “Approved Stock Plan” means any
equity incentive plan or arrangement which has been approved by the Board of
Directors of the Company, pursuant to which the Company’s securities may be
issued to employees, officers, directors or consultants for services provided to
the Company or any Subsidiaries thereof.
(b) “Black Scholes Value” means the
value of this Warrant based on the Black and Scholes Option Pricing Model
obtained from the “OV” function on Bloomberg determined as of the day
immediately following the public announcement of the applicable Fundamental
Transaction and reflecting (i) a risk-free interest rate corresponding to
the U.S. Treasury rate for a period equal to the remaining term of this Warrant
as of such date of request and (ii) an expected volatility equal to the
greater of 60% and the 100 day volatility obtained from the HVT function on
Bloomberg.
(c) “Bloomberg” means Bloomberg
Financial Markets.
(d) “Business Day” means any day
other than Saturday, Sunday or other day on which commercial banks in The City
of New York are authorized or required by law to remain closed.
(e) “Closing Bid Price” and “Closing Sale Price” means, for
any security as of any date, the last closing bid price and last closing trade
price, respectively, for such security on the Principal Market, as reported by
Bloomberg, or, if the Principal Market begins to operate on an extended hours
basis and does not designate the closing bid price or the closing trade price,
as the case may be, then the last bid price or last trade price, respectively,
of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg,
or, if the Principal Market is not the principal securities exchange or trading
market for such security, the last closing bid price or last trade price,
respectively, of such security on the principal securities exchange or trading
market where such security is listed or traded as reported by Bloomberg, or if
the foregoing do not apply, the last closing bid price or last trade price,
respectively, of such security in the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg, or, if no closing bid
price or last trade price, respectively, is reported for such security by
Bloomberg, the average of the bid prices, or the ask prices, respectively, of
any market makers for such security as reported in the “pink sheets” by Pink
Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Bid
Price or the Closing Sale Price cannot be calculated for a security on a
particular date on any of the foregoing bases, the Closing Bid Price or the
Closing Sale Price, as the case may be, of such security on such date shall be
the fair market value as mutually determined by the Company and the Holder. If
the Company and the Holder are unable to agree upon the fair market value of
such security, then such dispute shall be resolved pursuant to Section 12.
All such determinations to be appropriately adjusted for any stock dividend,
stock split, stock combination or other similar transaction during the
applicable calculation period.
(f) “Common Stock” means
(i) the Company’s shares of Common Stock, par value $0.001 per share, and
(ii) any share capital into which such Common Stock shall have been changed
or any share capital resulting from a reclassification of such Common
Stock.
(g) “Common Stock Deemed
Outstanding” means, at any given time, the number of shares of Common
Stock actually outstanding at such time, plus the number of shares of Common
Stock deemed to be outstanding pursuant to Sections 2(a)(i) and 2(a)(ii)
hereof regardless of whether the Options or Convertible Securities are actually
exercisable at such time, but excluding any shares of Common Stock owned or held
by or for the account of the Company or issuable upon conversion of the
Exchanged CAP Notes and exercise of the Exchanged CAP Warrants.
(h) “Common Stock Equivalents”
means any Convertible Securities and Options.
(i) “Convertible Securities” means
any stock or securities (other than Options) directly or indirectly convertible
into or exercisable or exchangeable for shares of Common Stock.
(j) “Current Market Price” means,
on any date, the average of the daily Closing Sale Price per Share for the
ten (10) consecutive Trading Days commencing on the record date in respect
of distributions, issuances or other events requiring such
computation.
(k) “Excluded Securities” means any
Common Stock issued or issuable: (i) pursuant to any Approved Stock Plan; (ii)
pursuant to an underwritten public offering with a nationally recognized
underwriter which generates gross proceeds to the Company in excess of
$10,000,000 (other than an “at-the-market offering” as defined in
Rule 415(a)(4) under the Securities Act of 1933 and “equity lines”); (iii)
in connection with any acquisition by the Company, whether through an
acquisition of stock or a merger of any business, assets or technologies the
primary purpose of which is not to raise equity capital, (iv) pursuant to
the Amendment and Exchange Agreements; (v) pursuant to the July Financing (as
defined in the Exchanged CAP Notes); (vi) upon exercise of the Exchanged CAP
Warrants; (vii) pursuant to any CWC Common Stock Distribution (as defined in the
Exchanged CAP Notes); (viii) upon exercise of any Common Stock Equivalents which
are outstanding on the day immediately preceding the Amendment Date; provided
that the terms of such Common Stock Equivalents are not amended or modified in
any manner after the date hereof; (ix) pursuant to the Common Stock Purchase
Agreement by and between the Company and FP Tech Holdings, LLC dated as of the
Amendment Date, not to exceed 1,071,429 shares of Common Stock issued at a price
of $1.40 per share (as adjusted to reflect any stock dividend, stock split,
combination, recapitalization and other similar event with respect to each such
share); (x) upon conversion of the Exchanged CAP Notes; (xi) upon the conversion
of all principal and interest outstanding as of the Amendment Date under that
certain Equipment Lease Agreement between the Company and FP Tech Holdings, LLC
dated February 11, 2008 at a conversion price of $1.40 per share (as
adjusted to reflect any stock dividend, stock split, combination,
recapitalization and other similar event with respect to each such share); (xii)
upon exchange of the sum of (A) $336,000 in aggregate principal amount and (B)
any accrued and unpaid interest thereon of those certain Second CAP Notes (as
defined in the Amendment and Exchange Agreement) held by FP Tech Holdings, LLC
or its affiliates for Common Stock of the Company at a price of $1.40 per share
(as adjusted to reflect any stock dividend, stock split, combination,
recapitalization and other similar event with respect to each such share),
(xiii) upon conversion of up to $2 million of the Exchanged CAP Notes and
Exchanged Bridge Notes (as defined in the Amendment and Exchange Agreements)
into shares of Common Stock at a conversion price of $2.00 (as adjusted to
reflect any stock dividend, stock split, combination, recapitalization and other
similar event with respect to each such share) on the Closing Date (as defined
in the Amendment and Exchange Agreements); and (xiv) in connection with a
Subsequent Placement (as defined in the Exchanged CAP Notes) in which the Net
Cash Proceeds (as defined in the Exchanged CAP Notes) are used to either (A) pay
off the Senior Notes and the Subordinated Notes (as defined in the Exchanged CAP
Notes) or (B) pay down at least $1,000,000 in the aggregate of the Senior Notes
and/or Subordinated Notes.
(l) “Expiration Date” means January
23, 2014; provided that if such
date falls on a day other than a Business Day or on which trading does not take
place on the Principal Market (a “Holiday”), the next date that
is not a Holiday.
(m) “Fundamental Transaction” means
that the Company shall, directly or indirectly, in one or more related
transactions, (i) consolidate or merge with or into (whether or not the Company
is the surviving corporation) another Person, or (ii) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties or
assets of the Company to another Person, or (iii) allow another Person or
Persons to make a purchase, tender or exchange offer that is accepted by the
holders of more than the 50% of the outstanding shares of Voting Stock (not
including any shares of Voting Stock held by the Person or Persons making or
party to, or associated or affiliated with the Person or Persons making or party
to, such purchase, tender or exchange offer), or (iv) consummate a stock
purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person whereby such other Person acquires more than the 50% of the
outstanding shares of Voting Stock (not including any shares of Voting Stock
held by the other Person or other Persons making or party to, or associated or
affiliated with the other Persons making or party to, such stock purchase
agreement or other business combination), or (v) reorganize, recapitalize or
reclassify its Common Stock, (vi) any “person” or “group” (as these terms are
used for purposes of Sections 13(d) and 15(d) of the Exchange Act) is or
shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 50% of the issued and outstanding Common Stock
or the aggregate ordinary voting power represented by issued and outstanding
Common Stock, or (vii) consummate a going-private transaction with any Person,
whether pursuant to Rule 13e-3 of the Exchange Act or otherwise; provided,
however, that none of the foregoing transactions shall constitute a Fundamental
Transaction if the transaction involves the CWC Transaction (as defined in the
Exchanged CAP Notes), the July Financing (as defined in the Exchanged CAP Notes)
or otherwise is a transaction in which FP Tech Holdings, LLC or its affiliates
is the “Person,” “person” or “group” referenced above.
(n) “Options” means any rights,
warrants or options to subscribe for or purchase shares of Common Stock or
Convertible Securities.
(o) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity and a government or any
department or agency thereof.
(p) “Principal Market” means the
OTC Bulletin Board.
(q) “Required Holders” means the
holders of the Exchanged CAP Warrants representing at least a majority of shares
of Common Stock underlying the Exchanged CAP Warrants then
outstanding.
(r) “Trading Day” means (a) if
the applicable security is listed or admitted for trading on the New York Stock
Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market or another
national security exchange, a day on which the New York Stock Exchange, The
NASDAQ Global Select Market, The NASDAQ Global Market or such other national
security exchange is open for business, (b) if the applicable security is
quoted on the American Stock Exchange, a day during which trades may be made
thereon or (c) if the applicable security is not so listed, admitted for
trading or quoted, any Business Day.
(s) “Voting Stock” of a Person
means capital stock of such Person of the class or classes pursuant to which the
holders thereof have the general voting power to elect, or the general power to
appoint, at least a majority of the board of directors, managers or trustees of
such Person (irrespective of whether or not at the time capital stock of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
[Signature
Page Follows]
IN WITNESS WHEREOF, the
Company has caused this Amended and Restated Warrant to Purchase Common Stock to
be duly executed as of the Amendment Date set out above.
By:
Name: Xxxxxxx Xxxxx
Title: Chief Financial
Officer
EXHIBIT
A
EXERCISE
NOTICE
TO
BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
AMENDED
AND RESTATED WARRANT TO PURCHASE COMMON STOCK
The
undersigned holder hereby exercises the right to purchase ___________________ of
the shares of Common Stock (“Warrant Shares”) of Firepond,
Inc., a Delaware corporation (the “Company”), evidenced by the
attached Amended and Restated Warrant to Purchase Common Stock (the “Warrant”). Capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Warrant.
1. Form
of Exercise Price. The Holder intends that payment of the Exercise Price shall
be made as:
|
|
__________
|
a
“Cash
Exercise” in respect of __________ Warrant Shares;
and/or
|
|
|
__________
|
a
“Cashless
Exercise” in respect of __________ Warrant
Shares.
|
2. Payment
of Exercise Price. In the event that the holder has elected a Cash Exercise in
respect of some or all of the Warrant Shares to be issued pursuant hereto, the
holder shall pay the Aggregate Exercise Price in the sum of
$____________________ to the Company in accordance with the terms of the
Warrant.
3. Delivery
of Warrant Shares. The Company shall deliver to the holder Warrant Shares in
accordance with the terms of the Warrant.
Date:
__________________
__,
Name
of Registered Holder
By:
Name:
Title:
ACKNOWLEDGMENT
The
Company hereby acknowledges this Exercise Notice and hereby directs Corporate
Stock Transfer to issue the above indicated number of shares of Common Stock in
accordance with the Transfer Agent Instructions dated ____________________ from
the Company and acknowledged and agreed to by Corporate Stock
Transfer.
By:
Name:
Title:
