Contract
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 MARCH __, 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-A6-
|
Void
After Expiration Date
(as
defined below)
|
WARRANT
TO
PURCHASE COMMON STOCK OF
Dated
March __, 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 March __, 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
$______ 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 March __, 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
2
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:
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.
3
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 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
4
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 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
5
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 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-6 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
MARCH __, 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
6
CHARGE
UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF
BUSINESS.
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.
7
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, 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: Xxxxxxx
X. Xxxxxx
Title: Chief
Executive Officer
Signature
Page to Warrant No. W-A6-1
WARRANT
HOLDER:
[ ]
By:
[
]
By:___________________________
Name:
Title:
Signature
Page to Warrant No. W-A6-1
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-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
