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Exhibit 99.2
Execution
Version
NEITHER THESE SECURITIES NOR THE
SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS.
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT
OR (B) 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 OR BLUE SKY
LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY OR (II) UNLESS SOLD PURSUANT TO RULE
144 UNDER SAID ACT.
PINNACLE DATA SYSTEMS,
INC.
WARRANT TO PURCHASE COMMON
STOCK
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| Warrant No.
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Original Issue Date: December 20, 2007 |
PINNACLE DATA SYSTEMS, INC.,
an Ohio corporation (the “ Company ”), hereby
certifies that, for value received,
or its permitted registered assigns (the “ Holder
”), is entitled to purchase from the Company up to a total of
[Holder’s pro-rata share of 375,000] shares of common
stock, no par value per share (the “ Common Stock
”), of the Company (each such share, a “ Warrant
Share ” and all such shares, the “ Warrant
Shares ”) at a per-share exercise price equal to the
greater of (i) $2.30 or (ii) in the event where such
exercise price will require shareholder approval under
Section 713 of the American Stock Exchange Company Guide, the
amount that is 10% higher than the closing price of the
Company’s common stock on the last Trading Day immediately
prior to the Closing Date (as adjusted from time to time as
provided in Section 9 , the “ Exercise
Price ”), at any time and from time to time after the six
month anniversary of the Original Issue Date and through and
including 5:00 P.M., eastern time, on the five year anniversary of
the Original Issue Date (the “ Expiration Date
”), subject to the following terms and conditions:
This Warrant (this “
Warrant ”) is one of a series of similar warrants
issued pursuant to that certain Securities Purchase Agreement,
dated December 20, 2007, by and among the Company and the
Purchasers identified therein (the “ Purchase
Agreement ”). All such warrants are referred to herein,
collectively, as the “ Warrants .”
1. Definitions . In
addition to the terms defined elsewhere in this Warrant,
capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Purchase Agreement.
2. Registration of
Warrants . The Company shall register this Warrant, upon
records to be maintained by the Company for that purpose (the
“ Warrant Register ”), in the name of the record
Holder (which shall include the initial Holder or, as the case may
be, any registered assignee to which this Warrant is permissibly
assigned hereunder) from time to time. The
Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for
the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, absent actual notice to the
contrary.
3. Registration of
Transfers . Subject to the restrictions on transfer set forth
in Section 4.1 of the Purchase Agreement and compliance
with all applicable securities laws, the Company shall register the
transfer of all or any portion of this Warrant in the Warrant
Register, upon (i) surrender of this Warrant, with the Form of
Assignment attached as Schedule 2 hereto duly completed and
signed, to the Company at its address specified in the Purchase
Agreement and (ii) if the Registration Statement is not
effective, (x) delivery, at the request of the Company, of an
opinion of counsel reasonably satisfactory to the Company to the
effect that the transfer of such portion of this Warrant may be
made pursuant to an available exemption from the registration
requirements of the Securities Act and all applicable state
securities or blue sky laws and (y) delivery by the transferee
of a written statement to the Company certifying that the
transferee is an “accredited investor” as defined in
Rule 501(a) under the Securities Act and making the representations
and certifications set forth in Section 3.2(b),
(c) and (d) of the Purchase Agreement, to the
Company at its address specified in the Purchase Agreement. Upon
any such registration or transfer, a new warrant to purchase Common
Stock in substantially the form of this Warrant (any such new
warrant, a “ New Warrant ”) evidencing the
portion of this Warrant so transferred shall be issued to the
transferee, and a New Warrant evidencing the remaining portion of
this Warrant not so transferred, if any, shall be issued to the
transferring Holder. The acceptance of the New Warrant by the
transferee thereof shall be deemed the acceptance by such
transferee of all of the rights and obligations of a Holder of a
Warrant. Notwithstanding the foregoing, this Warrant may not be
transferred in increments of less than 10,000 Warrant Shares unless
the entire remaining Warrant is transferred.
4. Exercise and Duration
of Warrants .
(a) All or any part of this
Warrant shall be exercisable, in whole or in part, by the
registered Holder at any time and from time to time from and after
the six month anniversary of the Original Issue Date and through
and including 5:00 P.M., eastern time, on the Expiration Date. At
5:00 P.M., eastern time, on the Expiration Date, the portion of
this Warrant not exercised prior thereto shall be and become void
and of no value and this Warrant shall be terminated and no longer
outstanding.
(b) The Holder may
exercise this Warrant by delivering to the Company (i) an
exercise notice, in the form attached as Schedule 1 hereto
(the “ Exercise Notice ”), appropriately
completed and duly signed and (ii) payment of the Exercise
Price for the number of Warrant Shares as to which this Warrant is
being exercised (which may take the form of a “cashless
exercise” if so indicated in the Exercise Notice and if a
“cashless exercise” may occur at such time pursuant to
Section 10 below), and the date such items are
delivered to the Company (as determined in accordance with the
notice provisions hereof) is an “ Exercise Date
.” The delivery by (or on behalf of) the Holder of the
Exercise Notice and the applicable Exercise Price as provided above
shall constitute the Holder’s certification to the Company
that its representations contained in Section 3.2(b),
(c) and (d) of the Purchase Agreement are true and
correct as of the Exercise Date as if remade in their entirety (or,
in the case of any transferee
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Holder that is not a party to the
Purchase Agreement, such transferee Holder’s certification to
the Company that such representations are true and correct as to
such assignee Holder as of the Exercise Date). 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
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.
5. Delivery of Warrant
Shares .
(a) Upon exercise of this
Warrant, the Company shall promptly (but in no event later than
five Trading Days after the Exercise Date) issue or cause to be
issued and cause to be delivered to or upon the written order of
the Holder and in such name or names as the Holder may designate
(provided that, if the Registration Statement is not effective and
the Holder directs the Company to register the Warrant Shares in a
name other than that of the Holder, it shall deliver to the Company
on the Exercise Date an opinion of counsel reasonably satisfactory
to the Company to the effect that the issuance of such Warrant
Shares in such other name may be made pursuant to an available
exemption from the registration requirements of the Securities Act
and all applicable state securities or blue sky laws), a
certificate for the Warrant Shares issuable upon such exercise,
free of restrictive legends, unless a registration statement
covering the resale of the Warrant Shares and naming the Holder as
a selling shareholder thereunder is not then effective or the
Warrant Shares are not freely transferable without volume
restrictions pursuant to Rule 144(k) under the Securities Act. The
Holder, or any Person permissibly so designated by the Holder to
receive Warrant Shares, shall be deemed to have become the holder
of record of such Warrant Shares as of the Exercise
Date.
(b) To the extent permitted
by law, the Company’s obligations to issue and deliver
Warrant Shares in accordance with the terms hereof are absolute and
unconditional, irrespective of any action or inaction by the Holder
to enforce the same, any waiver or consent with respect to any
provision hereof, the recovery of any judgment against any Person
or any action to enforce the same, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the
Company or any violation or alleged violation of law by the Holder
or any other Person, and irrespective of any other circumstance
which might otherwise limit such obligation of the Company to the
Holder in connection with the issuance of Warrant Shares. Nothing
herein shall limit the Holder’s right to pursue any other
remedies available to it hereunder, at law or in equity including,
without limitation, a decree of specific performance and/or
injunctive relief with respect to the Company’s failure to
timely deliver Common Stock upon exercise of this Warrant as
required pursuant to the terms hereof.
6. Charges, Taxes and
Expenses . Issuance and delivery of certificates for shares of
Common Stock upon exercise of this Warrant shall be made without
charge to the Holder for any issue or transfer tax, transfer agent
fee or other incidental tax or expense in respect of the issuance
of such certificates, all of which taxes and expenses shall be paid
by the Company; provided , however , that the Company
shall not be required to pay any tax which may be payable in
respect of any transfer involved in the registration of any
certificates for Warrant Shares or Warrants in a name other than
that of the Holder or an Affiliate thereof. The Holder shall be
responsible for all other tax liability that may arise as a result
of holding or transferring this Warrant or receiving Warrant Shares
upon exercise hereof.
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7. Replacement of
Warrant . If this Warrant is mutilated, lost, stolen or
destroyed, the Company shall issue or cause to be issued in
exchange and substitution for and upon cancellation hereof, or in
lieu of and substitution for this Warrant, a New Warrant, but only
upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction (in such case) and, in each case, a
customary and reasonable indemnity (which shall not include a
surety bond), if requested. Applicants for a New Warrant under such
circumstances shall also comply with such other reasonable
regulations and procedures and pay such other reasonable
third-party costs as the Company may prescribe. If a New Warrant is
requested as a result of a mutilation of this Warrant, then the
Holder shall deliver such mutilated Warrant to the Company as a
condition precedent to the Company’s obligation to issue the
New Warrant.
8. Reservation of Warrant
Shares . The Company covenants that it will reserve and keep
available out of the aggregate of its authorized but unissued and
otherwise unreserved Common Stock, solely for the purpose of
enabling it to issue Warrant Shares upon exercise of this Warrant
as herein provided, one hundred percent (100%) of the number
of Warrant Shares which are initially issuable and deliverable upon
the exercise of this entire Warrant, free from preemptive rights or
any other contingent purchase rights of persons other than the
Holder (taking into account the adjustments and restrictions of
Section 9 ). The Company covenants that all Warrant
Shares so issuable and deliverable shall, upon issuance and the
payment of the applicable Exercise Price in accordance with the
terms hereof, be duly and validly authorized, issued and fully paid
and nonassessable.
9. Certain Adjustments
. The Exercise Price and number of Warrant Shares issuable upon
exercise of this Warrant are subject to adjustment from time to
time as set forth in this Section 9 .
(a) Stock Dividends and
Splits . If the Company, at any time while this Warrant is
ou
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