Exhibit 10.3
THESE SECURITIES HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR
SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES OR AN OPINION OF COUNSEL OR OTHER EVIDENCE ACCEPTABLE TO
THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
No.
09-
O MNI C OMM S YSTEMS , I NC .
COMMON STOCK PURCHASE
WARRANT
CLASS 2009
1. Issuance . In
consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by O
MNI C OMM S YSTEMS , I NC . , a
Delaware corporation (the “Company”),
or registered assigns (the “Holder”) is hereby granted
the right to purchase at any time, on or after the Issue Date (as
defined below) until 5:00 P.M., New York City time, on the
Expiration Date (as defined below),
( )
fully paid and nonassessable shares of the Company’s Common
Stock, $0.001 par value per share (the “Common Stock”),
at an initial exercise price per share (the “Exercise
Price”) of $0.275 per share, subject to further adjustment as
set forth herein. This Warrant is being issued pursuant to the
terms of that certain Securities Purchase Agreement, dated as of
August , 2009 (the “Securities
Purchase Agreement”), to which the Company and Holder (or
Holder’s predecessor in interest) are parties. Capitalized
terms not otherwise defined herein shall have the meanings ascribed
to them in the Securities Purchase Agreement. This Warrant was
originally issued to the Holder or the Holder’s predecessor
in interest on August , 2009 (the
“Issue Date”).
2. Exercise of Warrants
.
2.1 General .
(a) This Warrant is exercisable in
whole or in part at any time and from time to time commencing on
the Issue Date. Such exercise shall be effectuated by submitting to
the Company (either by delivery to the Company or by facsimile
transmission as provided in Section 8 hereof) a completed and
duly executed Notice of Exercise (substantially in the form
attached to this Warrant Certificate) as provided in the Notice of
Exercise (or revised by notice given by the Company as contemplated
by the Section headed “NOTICES” in the Securities
Purchase Agreement). The date such Notice of Exercise is faxed to
the Company shall be the “Exercise Date,” provided
that, if such exercise represents the full exercise of the
outstanding balance of the Warrant, the Holder of this Warrant
tenders this Warrant Certificate to the Company within five
(5) Trading Days thereafter. The Notice of Exercise shall be
executed by
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the Holder of this Warrant and shall indicate
(i) the number of shares then being purchased pursuant to such
exercise and (ii) whether the exercise is a cashless
exercise.
(b) If the Notice of Exercise form
elects a “cashless” exercise, the Holder shall thereby
be entitled to receive a number of shares of Common Stock equal to
(w) the excess of the Current Market Value (as defined below)
over the total cash exercise price of the portion of the Warrant
then being exercised, divided by (x) the Market Price of the
Common Stock. For the purposes of this Warrant, the terms
(y) “Current Market Value” shall mean an amount
equal to the Market Price of the Common Stock, multiplied by the
number of shares of Common Stock specified in the applicable Notice
of Exercise, and (z) “Market Price of the Common
Stock” shall mean the average Closing Price of the Common
Stock for the three (3) Trading Days ending on the Trading Day
immediately prior to the Exercise Date.
(c) If the Holder provides on the
Notice of Exercise form that the Holder has elected a
“cash” exercise (or if the cashless exercise referred
to in the immediately preceding paragraph (b) is not available
in accordance with its terms), the Exercise Price per share of
Common Stock for the shares then being exercised shall be payable,
at the election of the Holder, in cash or by certified or official
bank check or by wire transfer in accordance with instructions
provided by the Company at the request of the Holder.
(d) Upon the appropriate payment, if
any, of the Exercise Price for the shares of Common Stock
purchased, together with the surrender of this Warrant Certificate
(if required), the Holder shall be entitled to receive a
certificate or certificates for the shares of Common Stock so
purchased. The Company shall deliver such certificates representing
the Warrant Shares in accordance with the instructions of the
Holder as provided in the Notice of Exercise (the certificates
delivered in such manner, the “Warrant Share
Certificates”) within three (3) Trading Days (such third
Trading Day, a “Delivery Date”) of (i) with
respect to a “cashless exercise,” the Exercise Date or
the Automatic Exercise Date, as the case may be, or, (ii) with
respect to a “cash” exercise, the later of the Exercise
Date or the date the payment of the Exercise Price for the relevant
Warrant Shares is received by the Company.
(e) The Holder shall be deemed to be
the holder of the shares issuable to it in accordance with the
provisions of this Section 2.1 on the Exercise
Date.
2.2 Automatic Exercise . If
any portion of this Warrant remains unexercised as of the
Expiration Date and the Market Price of the Common Stock as of the
Expiration Date is greater than the applicable Exercise Price as of
the Expiration Date, then, without further action by the Holder,
this Warrant shall be deemed to have been exercised automatically
on the date (the “Automatic Exercise Date”) which is
the day immediately prior to the close of business on the
Expiration Date (or, in the event that the Expiration Date is not a
Business Day, the immediately preceding Business Day) as if the
Holder had duly given a Notice of Exercise for a
“cashless” exercise as contemplated by
Section 2.1(b) hereof, and the Holder (or such other person or
persons as directed by the Holder) shall be treated for all
purposes as the holder of record of such Warrant Shares as of the
close of business on such Automatic Exercise Date. This Warrant
shall be deemed to be surrendered to the Company on the Automatic
Exercise Date by virtue of this Section 2.2 without any action
by the Holder.
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2.3 Certain Definitions . As
used herein, the term “Expiration Date” means the date
which is the last calendar day of the month in which the fourth
anniversary of the Closing Date occurs.
3. Reservation of Shares .
The Company hereby agrees that, at all times during the term of
this Warrant, there shall be reserved for issuance upon exercise of
this Warrant, one hundred percent (100%) of the number of
shares of its Common Stock as shall be required for issuance of the
Warrant Shares for the then unexercised portion of this Warrant.
For the purposes of such calculations, the Company should assume
that the outstanding portion of this Warrants was exercisable in
full at any time, without regard to any restrictions which might
limit the Holder’s right to exercise all or any portion of
this Warrant held by the Holder.
4. Mutilation or Loss of
Warrant . Upon receipt by the Company of evidence satisfactory
to it of the loss, theft, destruction or mutilation of this
Warrant, and (in the case of loss, theft or destruction) receipt of
reasonably satisfactory indemnification, and (in the case of
mutilation) upon surrender and cancellation of this Warrant, the
Company will execute and deliver a new Warrant of like tenor and
date and any such lost, stolen, destroyed or mutilated Warrant
shall thereupon become void.
5. Rights of the Holder . The
Holder shall not, by virtue hereof, be entitled to any rights of a
stockholder in the Company, either at law or equity, and the rights
of the Holder are limited to those expressed in this Warrant and
are not enforceable against the Company except to the extent set
forth herein.
6. Protection Against Dilution
and Other Adjustments .
6.1 Adjustment Mechanism . If
an adjustment of the Exercise Price is required pursuant to this
Section 6 (other than pursuant to Section 6.4), the
Holder shall be entitled to purchase such number of shares of
Common Stock as will cause (i) (x) the total number of
shares of Common Stock Holder is entitled to purchase pursuant to
this Warrant following such adjustment, multiplied by
(y)&
