THIS WARRANT AND THE SHARES OF PREFERRED STOCK WHICH MAY BE
PURCHASED PURSUANT TO THE EXERCISE OF THIS WARRANT (AND THE SHARES
OF COMMON STOCK WHICH MAY BE ISSUED UPON CONVERSION OF SUCH SHARES
OF PREFERRED STOCK) 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.
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.
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No. W-P[ ]
|
Void After Expiration Date
(as defined below)
|
WARRANT
TO PURCHASE PREFERRED STOCK OF
MTM TECHNOLOGIES, INC.
Dated
June 16, 2008
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 the next series of preferred stock, $0.001 par
value, per share of the Company, to be designated by the
Company after the date hereof, (“ Preferred
Stock ”), as further described and defined
below.
Section
1.
Number of
Shares . The maximum number of shares of
Preferred Stock which may be purchased upon the exercise of
this Warrant is [ ]. This Warrant shall not
be exercised prior to the date upon which the Company
designates the next series of preferred stock.
Section
2.
Exercise
Price . The price per share at which the
Holder may purchase the Shares shall be $ 0.3875 per share
(the “ Exercise
Price ”).
Section
3.
Expiration
Date . This Warrant shall expire at 5:00
p.m. New York Time on June 16, 2012 (the
“ Expiration
Date ”). On the Expiration Date, all
rights of the Holder to purchase Preferred 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 principal office of the
Company. Thereupon, the Company shall issue to the
Holder such number of shares of Preferred Stock as is computed
using the following formula:
X
= Y
(A-B)
A
Where
|
|
X
=
|
the
number of shares of Preferred Stock to be issued to the Holder
pursuant to this Section 4.2
.
|
|
|
Y
=
|
the
number of shares of Preferred 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 Preferred Stock, as determined by
the board of directors of the Company (the “ Board of
Directors ”), 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 Preferred 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 Preferred 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
Preferred 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 Preferred Stock to provide for the
exercise of this Warrant.
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 Preferred Stock . If the
number of shares of Preferred Stock outstanding at any time is
increased by a stock dividend payable in shares of Preferred
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
Preferred Stock issuable upon exercise of this Warrant shall
be increased in proportion to such increase of outstanding
shares of Preferred Stock.
Section
6.2
Adjustments for
Combinations Preferred Stock . If the number
of shares of Preferred Stock outstanding at any time is
decreased by a combination of the outstanding shares of
Preferred 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
Preferred Stock issuable upon exercise of this Warrant shall
be decreased in proportion to such decrease in outstanding
shares of Preferred Stock.
Section
6.3
Adjustments for
Reclassification, Exchange and Substitution
. Upon a Notice Event (as defined below), if the
Preferred 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 Preferred 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 Preferred 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 and/or
Preferred 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
and/or Preferred Stock evidences of indebtedness or assets or
other securities; (c) of any capital reorganization or
reclassification of Common Stock and/or Preferred Stock, other
than a subdivision or combination of the outstanding Common
Stock and/or Preferred Stock and other than a change in par
value of the Common Stock and/or Preferred 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 and/or Preferred 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 Preferred 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 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 and/or Preferred Stock of
record will
