THIS WARRANT AND THE SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE HEREOF HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD,
TRANSFERRED
OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT
AND UNDER
APPLICABLE STATE SECURITIES LAWS OR THE ISSUER SHALL HAVE RECEIVED
AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT REGISTRATION OF
SUCH
SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF
APPLICABLE STATE
SECURITIES LAWS IS NOT REQUIRED.
SERIES E-7 WARRANT TO PURCHASE
SHARES OF COMMON STOCK
OF
REMOTE DYNAMICS, INC.
Expires December 4, 2013
No.: W-E-7-06- __
Number of Shares: ___________
Date of Issuance: December 4, 2006
FOR VALUE
RECEIVED, the undersigned, Remote Dynamics, Inc., a Delaware
corporation (together with its successors and assigns, the
"Issuer"), hereby
certifies that _______________________________ or its registered
assigns is
entitled to subscribe for and purchase, during the Term (as
hereinafter
defined), up to ____________________________________
(_____________) shares
(subject to adjustment as hereinafter provided) of the duly
authorized, validly
issued, fully paid and non-assessable Common Stock of the Issuer,
at an exercise
price per share equal to the Warrant Price then in effect, subject,
however, to
the provisions and upon the terms and conditions hereinafter set
forth.
Capitalized terms used in this Warrant and not otherwise defined
herein shall
have the respective meanings specified in Section 9 hereof.
1. Term.
The term of this Warrant shall commence on December 4, 2006 and
shall expire at 5:00 p.m., Eastern Time, on December 4, 2013 (such
period being
the "Term").
2. Method
of Exercise; Payment; Issuance of New Warrant; Transfer and
Exchange.
(a) Time of
Exercise. The purchase rights represented by this Warrant may
be exercised in whole or in part during the Term.
(b) Method
of Exercise. The Holder hereof may exercise this Warrant, in
whole or in part, by the surrender of this Warrant (with the
exercise form
attached hereto duly executed) at the principal office of the
Issuer, and by the
payment to the Issuer of an amount of consideration therefor equal
to the
Warrant Price in effect on the date of such exercise multiplied by
the number of
shares of Warrant Stock with respect to which this Warrant is then
being
exercised, payable at such Holder's election (i) by certified or
official bank
check or by wire transfer to an account designated by the Issuer,
(ii) by
"cashless exercise" in accordance with the provisions of subsection
(c) of this
Section 2, but only when a registration statement under the
Securities Act
providing for the resale of the Warrant Stock is not then in
effect, or (iii) by
a combination of the foregoing methods of payment selected by the
Holder of this
Warrant.
<PAGE>
(c)
Cashless Exercise. Notwithstanding any provisions herein to the
contrary and commencing one (1) year following the Original Issue
Date if (i)
the Per Share Market Value of one share of Common Stock is greater
than the
Warrant Price (at the date of calculation as set forth below) and
(ii) a
registration statement under the Securities Act providing for the
resale of the
Warrant Stock is not then in effect by the date such registration
statement is
required to be effective pursuant to the Registration Rights
Agreement (as
defined in the Purchase Agreement) or not effective at any time
during the
Effectiveness Period (as defined in the Registration Rights
Agreement) in
accordance with the terms of the Registration Rights Agreement, in
lieu of
exercising this Warrant by payment of cash, the Holder may exercise
this Warrant
by a cashless exercise and shall receive the number of shares of
Common Stock
equal to an amount (as determined below) by surrender of this
Warrant at the
principal office of the Issuer together with the properly endorsed
Notice of
Exercise in which event the Issuer shall issue to the Holder a
number of shares
of Common Stock computed using the following formula:
X = Y - (A)(Y)
------
B
Where
X =
the number of shares of Common Stock to be issued to
the Holder.
Y =
the number of shares of Common Stock purchasable
upon exercise of all of the Warrant or, if only a
portion of the Warrant is being exercised, the
portion of the Warrant being exercised.
A =
the Warrant Price.
B = the Per Share Market Value of one share of Common Stock.
(d)
Issuance of Stock Certificates. In the event of any exercise of
this
Warrant in accordance with and subject to the terms and conditions
hereof, (i)
certificates for the shares of Warrant Stock so purchased shall be
dated the
date of such exercise and delivered to the Holder hereof within a
reasonable
time, not exceeding three (3) Trading Days after such exercise (the
"Delivery
Date") or, at the request of the Holder (provided that a
registration statement
under the Securities Act providing for the resale of the Warrant
Stock is then
in effect), issued and delivered to the Depository Trust Company
("DTC") account
on the Holder's behalf via the Deposit Withdrawal Agent Commission
System
("DWAC") within a reasonable time, not exceeding three (3) Trading
Days after
such exercise, and the Holder hereof shall be deemed for all
purposes to be the
holder of the shares of Warrant Stock so purchased as of the date
of such
exercise and (ii) unless this Warrant has expired, a new Warrant
representing
the number of shares of Warrant Stock, if any, with respect to
which this
Warrant shall not then have been exercised (less any amount thereof
which shall
have been canceled in payment or partial payment of the Warrant
Price as
hereinabove provided) shall also be issued to the Holder hereof at
the Issuer's
expense within such time.
2
<PAGE>
(e)
Compensation for Buy-In on Failure to Timely Deliver Certificates
Upon
Exercise. In addition to any other rights available to the Holder,
if the Issuer
fails to cause its transfer agent to transmit to the Holder a
certificate or
certificates representing the Warrant Stock pursuant to an exercise
on or before
the Delivery Date, and if after such date the Holder is required by
its broker
to purchase (in an open market transaction or otherwise) shares of
Common Stock
to deliver in satisfaction of a sale by the Holder of the Warrant
Stock which
the Holder anticipated receiving upon such exercise (a "Buy-In"),
then the
Issuer shall (1) pay in cash to the Holder the amount by which (x)
the Holder's
total purchase price (including brokerage commissions, if any) for
the shares of
Common Stock so purchased exceeds (y) the amount obtained by
multiplying (A) the
number of shares of Warrant Stock that the Issuer was required to
deliver to the
Holder in connection with the exercise at issue times (B) the price
at which the
sell order giving rise to such purchase obligation was executed,
and (2) at the
option of the Holder, either reinstate the portion of the Warrant
and equivalent
number of shares of Warrant Stock for which such exercise was not
honored or
deliver to the Holder the number of shares of Common Stock that
would have been
issued had the Issuer timely complied with its exercise and
delivery obligations
hereunder. For example, if the Holder purchases Common Stock having
a total
purchase price of $11,000 to cover a Buy-In with respect to an
attempted
exercise of shares of Common Stock with an aggregate sale price
giving rise to
such purchase obligation of $10,000, under clause (1) of the
immediately
preceding sentence the Issuer shall be required to pay the Holder
$1,000. The
Holder shall provide the Issuer written notice indicating the
amounts payable to
the Holder in respect of the Buy-In, together with applicable
confirmations and
other evidence reasonably requested by the Issuer. Nothing herein
shall limit a
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 Issuer's failure to timely
deliver
certificates representing shares of Common Stock upon exercise of
this Warrant
as required pursuant to the terms hereof.
(f)
Transferability of Warrant. Subject to Section 2(h), this Warrant
may
be transferred by a Holder without the consent of the Issuer. If
transferred
pursuant to this paragraph, this Warrant may be transferred on the
books of the
Issuer by the Holder hereof in person or by duly authorized
attorney, upon
surrender of this Warrant at the principal office of the Issuer,
properly
endorsed (by the Holder executing an assignment in the form
attached hereto) and
upon payment of any necessary transfer tax or other governmental
charge imposed
upon such transfer. This Warrant is exchangeable at the principal
office of the
Issuer for Warrants to purchase the same aggregate number of shares
of Warrant
Stock, each new Warrant to represent the right to purchase such
number of shares
of Warrant Stock as the Holder hereof shall designate at the time
of such
exchange. All Warrants issued on transfers or exchanges shall be
dated the
Original Issue Date and shall be identical with this Warrant except
as to the
number of shares of Warrant Stock issuable pursuant thereto.
(g)
Continuing Rights of Holder. The Issuer will, at the time of or at
any
time after each exercise of this Warrant, upon the request of the
Holder hereof,
acknowledge in writing the extent, if any, of its continuing
obligation to
afford to such Holder all rights to which such Holder shall
continue to be
entitled after such exercise in accordance with the terms of this
Warrant,
provided that if any such Holder shall fail to make any such
request, the
failure shall not affect the continuing obligation of the Issuer to
afford such
rights to such Holder.
3
<PAGE>
(h)
Compliance with Securities Laws.
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges
that this
Warrant and the shares of Warrant Stock to be issued upon
exercise
hereof are being acquired solely for the Holder's own account
and
not as a nominee for
any other party, and for investment, and that the
Holder
will not offer, sell or otherwise dispose of this Warrant or
any
shares of
Warrant Stock to be issued upon exercise hereof except pursuant
to an
effective registration statement, or an exemption from
registration,
under the
Securities Act and any applicable state securities laws.
(ii) Except as provided in paragraph (iii) below, this Warrant
and
all
certificates representing shares of Warrant Stock issued upon
exercise
hereof
shall be stamped or imprinted with a legend in substantially
the
following
form:
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON
EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS AND
MAY
NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED
UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES
LAWS
OR THE ISSUER SHALL HAVE RECEIVED AN OPINION OF COUNSEL
REASONABLY
SATISFACTORY TO THE ISSUER THAT REGISTRATION OF SUCH SECURITIES
UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE
STATE SECURITIES LAWS IS NOT REQUIRED.
(iii) The Issuer agrees to reissue this Warrant or certificates
representing any of the Warrant Stock, without the legend set forth
above
if at such
time, prior to making any transfer of any such securities, the
Holder
shall give written notice to the Issuer describing the manner
and
terms of
such transfer. Such proposed transfer will not be effected
until:
(a) either
(i) the Issuer has received an opinion of counsel reasonably
satisfactory to the Issuer, to the effect that the registration of
such
securities
under the Securities Act is not required in connection with
such
proposed transfer, (ii) a registration statement under the
Securities
Act
covering such proposed disposition has been filed by the Issuer
with
the
Securities and Exchange Commission and has become effective under
the
Securities
Act, (iii) the Issuer has received other evidence reasonably
satisfactory to the Issuer that such registration and qualification
under
the
Securities Act and state securities laws are not required (which
may
include an
opinion of counsel provided by the Issuer), or (iv) the Holder
provides
the Issuer with reasonable assurances that such security can be
sold
pursuant to Rule 144 under the Securities Act (which may include
an
opinion of
counsel provided by the Issuer); and (b) either (i) the Issuer
has
received an opinion of counsel reasonably satisfactory to the
Issuer,
to the
effect that registration or qualification under the securities
or
"blue sky"
laws of any state is not required in connection with such
proposed
disposition, or (ii) compliance with applicable state
securities
or "blue sky" laws has
been effected or a valid exemption exists with
respect
thereto (which may include an opinion of counsel provided by
the
Issuer).
The Issuer will respond to any such notice from a holder within
three (3)
business days. In the case of any proposed transfer under this
Section
2(h), the Issuer will use reasonable efforts to comply with any
such
applicable state securities or "blue sky" laws, but shall in no
event
be
required, (x) to qualify to do business in any state where it is
not
then
qualified, (y) to take any action that would subject it to tax or
to
the
general service of process in any state where it is not then
subject,
or (z) to
comply with state securities or "blue sky" laws of any state
for
which
registration by coordination is unavailable to the Issuer. The
restrictions on transfer contained in this Section 2(h) shall be
in
addition
to, and not by way of limitation of, any other restrictions on
transfer
contained in any other section of this Warrant. Whenever a
certificate representing the Warrant Stock is required to be issued
to a
the Holder
without a legend, in lieu of delivering physical certificates
representing the Warrant Stock, provided the Issuer's transfer
agent is
participating in the DTC Fast Automated Securities Transfer
program, the
Issuer
shall use its reasonable best efforts to cause its transfer
agent
to
electronically transmit the Warrant Stock to the Holder by
crediting
the
account of the Holder's Prime Broker with DTC through its DWAC
system
(to the
extent not inconsistent with any provisions of this Warrant or
the
Purchase
Agreement).
4
<PAGE>
(i)
Accredited Investor Status. In no event may the Holder exercise
this
Warrant in whole or in part unless the Holder is an "accredited
investor" as
defined in Regulation D under the Securities Act.
3. Stock
Fully Paid; Reservation and Listing of Shares; Covenants.
(a) Stock
Fully Paid. The Issuer represents, warrants, covenants and
agrees that all shares of Warrant Stock which may be issued upon
the exercise of
this Warrant or otherwise hereunder will, when issued in accordance
with the
terms of this Warrant, be duly authorized, validly issued, fully
paid and
non-assessable and free from all taxes, liens and charges created
by or through
the Issuer. The Issuer further covenants and agrees that during the
period
within which this Warrant may be exercised, the Issuer will at all
times have
authorized and reserved for the purpose of the issuance upon
exercise of this
Warrant such number of shares of Common Stock that are not issued
or reserved
for issuance as of the Original Issue Date; provided, however, upon
the Issuer
filing the Charter Amendment (as defined in the Purchase
Agreement), the Issuer
shall take all action necessary to at all times have authorized,
and reserved
for the purpose of issuance, free of preemptive rights and other
similar
contractual rights of stockholders, a number of shares of Common
Stock equal to
one hundred twenty percent (120%) of the number of shares of Common
Stock as
shall from time to time be sufficient to provide for the exercise
of this
Warrant.
5
<PAGE>
(b)
Reservation. If any shares of Common Stock required to be reserved
for
issuance upon exercise of this Warrant or as otherwise provided
hereunder
require registration or qualification with any Governmental
Authority under any
federal or state law before such shares may be so issued, the
Issuer will use
its reasonable best efforts as expeditiously as possible at its
expense to cause
such shares to be duly registered or qualified. If the Issuer shall
list any
shares of Common Stock on any securities exchange or market it
will, at its
expense, list thereon, maintain and increase when necessary such
listing, of,
all shares of Warrant Stock from time to time issued upon exercise
of this
Warrant or as otherwise provided hereunder (provided that such
Warrant Stock has
been registered pursuant to a registration statement under the
Securities Act
then in effect), and, to the extent permissible under the
applicable securities
exchange rules, all unissued shares of Warrant Stock which are at
any time
issuable hereunder, so long as any shares of Common Stock shall be
so listed.
The Issuer will also so list on each securities exchange or market,
and will
maintain such listing of, any other securities which the Holder of
this Warrant
shall be entitled to receive upon the exercise of this Warrant if
at the time
any securities of the same class shall be listed on such securities
exchange or
market by the Issuer.
(c)
Covenants. The Issuer shall not by any action including,
without
limitation, amending the Certificate of Incorporation or the
by-laws of the
Issuer, or through any reorganization, transfer of assets,
consolidation,
merger, dissolution, issue or sale of securities or any other
action, avoid or
seek to avoid the observance or performance of any of the terms of
this Warrant,
but will at all times in good faith assist in the carrying out of
all such terms
and in the taking of all such actions as may be necessary or
appropriate to
protect the rights of the Holder hereof against dilution (to the
extent
specifically provided herein) or impairment. Without limiting the
generality of
the foregoing, the Issuer will (i) not permit the par value, if
any, of its
Common Stock to exceed the then effective Warrant Price, (ii) not
amend or
modify any provision of the Certificate of Incorporation or by-laws
of the
Issuer in any manner that would adversely affect the rights of the
Holders of
the Warrants, (iii) take all such action as may be reasonably
necessary in order
that the Issuer may validly and legally issue fully paid and
nonassessable
shares of Common Stock, free and clear of any liens, claims,
encumbrances and
restrictions (other than as provided herein) created by the Issuer
upon the
exercise of this Warrant, and (iv) use its reasonable best efforts
to obtain all
such authorizations, exemptions or consents from any public
regulatory body
having jurisdiction thereof as may be reasonably necessary to
enable the Issuer
to perform its obligations under this Warrant.
(d) Loss,
Theft, Destruction of Warrants. Upon receipt of evidence
satisfactory to the Issuer of the ownership of and the loss, theft,
destruction
or mutilation of any Warrant and, in the case of any such loss,
theft or
destruction, upon receipt of indemnity or security satisfactory to
the Issuer
or, in the case of any such mutilation, upon surrender and
cancellation of such
Warrant, the Issuer will make and deliver, in lieu of such lost,
stolen,
destroyed or mutilated Warrant, a new Warrant of like tenor and
representing the
right to purchase the same number of shares of Common Stock.
(e)
Payment of Taxes. The Issuer will pay any documentary stamp
taxes
attributable to the initial issuance of the Warrant Stock issuable
upon exercise
of this Warrant; provided, however, that the Issuer shall not be
required to pay
any tax or taxes which may be payable in respect of any transfer
involved in the
issuance or delivery of any certificates representing Warrant Stock
in a name
other than that of the Holder in respect to which such shares are
issued.
6
<PAGE>
4.
Adjustment of Warrant Price. The price at which such shares of
Warrant
Stock may be purchased upon exercise of this Warrant shall be
subject to
adjustment from time to time as set forth in this Section 4. The
Issuer shall
give the Holder notice of any event described below which requires
an adjustment
pursuant to this Section 4 in accordance with the notice provisions
set forth in
Section 5.
(a) Recapitalization,
Reorganization, Reclassification, Consolidation,
Merger or Sale.
(i) In case the Issuer after the Original Issue Date shall do any
of
the
following (each, a "Triggering Event"): (a) consolidate or merge
with
or into
any other Person and the Issuer shall not be the continuing or
surviving
corporation of such consolidation or merger, or (b) permit any
other
Person to consolidate with or merge into the Issuer and the
Issuer
shall be
the continuing or surviving Person but, in connection with such
consolidation or merger, any Capital Stock of the Issuer shall be
changed
into or
exchanged for Securities of any other Person or cash or any
other
property,
or (c) transfer all or substantially all of its properties or
assets to
any other Person, or (d) effect a capital reorganization or
reclassification of its Capital Stock, then, and in the case of
each such
Triggering
Event, proper provision shall be made so that, upon the basis
and the
terms and in the manner provided in this Warrant, the Holder of
this
Warrant shall be entitled upon the exercise hereof at any time
after
the
consummation of such Triggering Event, to the extent this Warrant
is
not
exercised prior to such Triggering Event, to receive at the
Warrant
Price in
effect at the time immediately prior to the consummation of
such
Triggering
Event in lieu of the Common Stock issuable upon such exercise
of this
Warrant prior to such Triggering Event, the Securities, cash
and
property
to which such Holder would have been entitled upon the
consummation of such Triggering Event if such Holder had exercised
the
rights
represented by this Warrant immediately prior thereto
(including
the right
of a shareholder to elect the type of consideration it will
receive
upon a Triggering Event), subject to adjustments (subsequent to
such
corporate action) as nearly equivalent as possible to the
adjustments
provided
for elsewhere in this Section 4. Notwithstanding the foregoing
to
the
contrary, this Section 4(a)(i) shall only apply if the
surviving
entity
pursuant to any such Triggering Event is a company has a class
of
equity
securities registered pursuant to the Securities Exchange Act
of
1934, as
amended, and its common stock is listed or quoted on a national
securities
exchange, national automated quotation system or the OTC
Bulletin
Board. In the event that the surviving entity pursuant to any
such
Triggering Event is not a company that has a class of equity
securities
registered pursuant to the Securities Exchange Act of 1934, as
amended,
or its common stock is not listed or quoted on a national
securities
exchange, national automated quotation system or the OTC
Bulletin
Board, then the Holder shall have the right to demand that the
Issuer pay
to the Holder an amount equal to the value of this Warrant
according
to the Black-Scholes formula.
7
<PAGE>
(ii) Notwithstanding anything contained in this Warrant to the
contrary
and so long as the surviving entity pursuant to any Triggering
Event is a
company that has a class of equity securities registered
pursuant
to the Securities Exchange Act of 1934, as amended, and its
common
stock is listed or quoted on a national securities exchange,
national
automated quotation system or the OTC Bulletin Board, a
Triggering
Event shall not be deemed to have occurred if, prior to the
consummation thereof, each Person (other than the Issuer) which may
be
required
to deliver any Securities, cash or property upon the exercise
of
this
Warrant as provided herein shall assume, by written instrument
delivered
to, and reasonably satisfactory to, the Holder of this Warrant,
(A) the
obligations of the Issuer under this Warrant (and if the Issuer
shall
survive the consummation of such Triggering Event, such
assumption
shall be
in addition to, and shall not release the Issuer from, any
continuing
obligations of the Issuer under this Warrant) and (B) the
obligation
to deliver to such Holder such Securities, cash or property as,
in
accordance with the foregoing provisions of this subsection (a),
such
Holder
shall be entitled to receive, and such Person shall have
similarly
delivered
to such Holder an opinion of counsel for such Person, which
counsel
shall be reasonably satisfactory to such Holder, or in the
alternative, a written acknowledgement executed by the President or
Chief
Financial
Officer of the Issuer, stating that this Warrant shall
thereafter
continue in full force and effect and the terms hereof
(including, without limitation, all of the provisions of this
subsection
(a)) shall
be applicable to the Securities, cash or property which such
Person may
be required to deliver upon any exercise of this Warrant or the
exercise
of any rights pursuant hereto.
(b) Stock
Dividends, Subdivisions and Combinations. If at any time the
Issuer shall:
(i) make or issue or set a record date for the holders of the
Common Stock for the purpose of entitling them to receive a
dividend
payable in, or other distribution of, shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock, or
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares of Common Stock,
then (1) the number of shares of Common Stock for which this
Warrant is
exercisable immediately after the occurrence of any such event
shall be adjusted
to equal the number of shares of Common Stock which a record holder
of the same
number of shares of Common Stock for which this Warrant is
exercisable
immediately prior to the occurrence of such event would own or be
entitled to
receive after the happening of such event, and (2) the Warrant
Price then in
effect shall be adjusted to equal (A) the Warrant Price then in
effect
multiplied by the number of shares of Common Stock for which this
Warrant is
exercisable immediately prior to the adjustment divided by (B) the
number of
shares of Common Stock for which this Warrant is exercisable
immediately after
such adjustment.
(c)
Certain Other Distributions. If at any time the Issuer shall make
or
issue or set a record date for the holders of the Common Stock for
the purpose
of entitling them to receive any dividend or other distribution
of:
8
<PAGE>
(i) cash (other than a cash dividend payable out of earnings
or earned surplus legally available for the payment of
dividends
under the laws of the jurisdiction of incorporation of the
Issuer),
(ii) any evidences of its indebtedness, any shares of stock of
any class or any other securities or property of any nature
whatsoever (other than cash, Common Stock Equivalents or
Additional
Shares of Common Stock), or
(iii) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any shares of stock
of
any class or any other securities or property of any nature
whatsoever (other than cash, Common St
