Exhibit 4.1
Pepper Hamilton LLP
Draft 6/17/04
NEITHER THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE
EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE
SECURITIES OR BLUE SKY LAWS. NOTWITHSTANDING THE FOREGOING, THESE SECURITIES AND
THE SECURITIES ISSUABLE UPON EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY SUCH SECURITIES.
Warrant No. WA - ___ Number of Shares: ________
(subject to adjustment)
Date of Issuance: June 17, 2004
MTI TECHNOLOGY CORPORATION
Common Stock Purchase Warrant
(Void after June 17, 2015)
MTI Technology Corporation., a Delaware corporation (the "Company"), for
value received, hereby certifies that _____________________________, or its
registered assigns (the "Registered Holder"), is entitled, subject to the terms
and conditions set forth below, to purchase from the Company, at any time or
from time to time on or after December 20, 2004 and on or before 5:00 p.m.
(Pacific time) on June 17, 2015, _____ shares of Common Stock, $0.001 par value
per share, of the Company ("Common Stock"). The purchase price shall be $3.10
per share. The shares purchasable upon exercise of this Warrant, and the
purchase price per share, each as adjusted from time to time pursuant to the
provisions of this Warrant, are hereinafter referred to as the "Warrant Shares"
and the "Purchase Price," respectively. For purposes of this Warrant, "Warrant
Issue Date" shall mean the date on which this Warrant was first issued,
regardless of any subsequent transfer or partial exercise of this Warrant that
may occur after such date.
1. Exercise
(a) Exercise for Cash. The Registered Holder may, at its option,
elect to exercise this Warrant, in whole or in part and at any time or
from time to time, by surrendering this Warrant, with the purchase form
appended hereto as Exhibit I duly executed by or on behalf of the
Registered Holder, at the principal office of the Company, or at such
other office or
agency as the Company may designate, accompanied by payment in full, in
lawful money of the United States, of the Purchase Price payable in
respect of the number of Warrant Shares purchased upon such exercise.
(b) Cashless Exercise
(i) The Registered Holder may, at its option, elect to
exercise this Warrant, in whole or in part from time to time, on a
cashless basis, by surrendering this Warrant, with the purchase form
appended hereto as Exhibit I duly executed by or on behalf of the
Registered Holder, at the principal office of the Company, or at
such other office or agency as the Company may designate, by
canceling a portion of this Warrant in payment of the Purchase Price
payable in respect of the number of Warrant Shares purchased upon
such exercise. In the event of an exercise pursuant to this
subsection 1(b), the number of Warrant Shares issued to the
Registered Holder shall be determined according to the following
formula:
X = Y(A-B)
-----
A
Where: X = the number of Warrant Shares that shall be
issued to the Registered Holder pursuant to the
cashless exercise;
Y = the number of Warrant Shares for which this
Warrant is being exercised (which shall include
both the number of Warrant Shares issued to the
Registered Holder and the number of Warrant Shares
subject to the portion of the Warrant being
cancelled in payment of the Purchase Price);
A = the Fair Market Value (as defined below) of one
share of Common Stock; and
B = the Purchase Price then in effect.
(ii) For purpose of this Warrant, "Fair Market Value" per
share of Common Stock shall be determined as follows:
(A) If the Common Stock is listed on a national
securities exchange, the Nasdaq SmallCap Market or another
nationally recognized trading system as of the Exercise Date,
the Fair Market Value per share of Common Stock shall be
deemed to be the average of the high and low reported sale
prices per share of Common Stock thereon on the twenty (20)
trading days immediately preceding (and not including) the
Exercise Date, provided that if no such price is reported on
such day, the Fair Market Value per share of Common Stock
shall be determined pursuant to clause (B) below.
(B) If the Common Stock is not listed on a national
securities exchange, the Nasdaq SmallCap Market or another
nationally recognized trading system as of the Exercise Date,
the Fair Market Value per share of Common Stock shall be
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deemed to be the amount most recently determined by the Board
of Directors of the Company (the "Board") to represent the
fair market value per share of the Common Stock (including a
determination for purposes of granting Common Stock options or
issuing Common Stock under any plan, agreement or arrangement
with employees of the Company); and, upon request of the
Registered Holder, such Board (or a representative thereof)
shall, as promptly as reasonably practicable but in any event
not later than 20 days after such request, notify the
Registered Holder of the Fair Market Value per share of Common
Stock and furnish the Registered Holder with reasonable
documentation of such Board's determination of such Fair
Market Value. Notwithstanding the foregoing, if the Board has
not made such a determination within the three-month period
prior to the Exercise Date, then (a) the Board shall make, and
shall provide or cause to be provided to the Registered Holder
notice of, a determination of the Fair Market Value per share
of the Common Stock within 15 days of a request by the
Registered Holder that it do so, and (b) the exercise of this
Warrant pursuant to this subsection 1(b) shall be delayed
until such determination is made and notice thereof is
provided to the Registered Holder.
(c) Exercise Date. Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the day
on which this Warrant shall have been surrendered to the Company as
provided in subsection 1(a) or 1(b) above (the "Exercise Date"). At such
time, the person or persons in whose name or names any certificates for
Warrant Shares shall be issuable upon such exercise as provided in
subsection 1(d) below shall be deemed to have become the holder or holders
of record of the Warrant Shares represented by such certificates. The
Company shall use all commercially reasonable efforts to deliver Warrant
Shares hereunder electronically through the Depository Trust & Clearing
Company or another established clearing Company performing similar
functions.
(d) Issuance of Certificates. As soon as practicable after the
exercise of this Warrant in whole or in part, and in any event within
three Trading Days (as defined below) thereafter, the Company, at its
expense, shall cause to be issued in the name of, and delivered to, the
Registered Holder, or as the Registered Holder (upon payment by the
Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of full Warrant
Shares to which the Registered Holder shall be entitled upon
such exercise plus, in lieu of any fractional share to which
the Registered Holder would otherwise be entitled, cash in an
amount determined pursuant to Section 3 below; and
(ii) in case such exercise is in part only, a new warrant or
warrants of like tenor, calling in the aggregate on the face
or faces thereof for the number of Warrant Shares equal
(without giving effect to any adjustment therein) to the
number of such shares called for on the face of this Warrant
minus the number of Warrant Shares for which this Warrant was
so exercised.
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For purposes of this Warrant, "Trading Day" shall mean (a) any day on
which the Common Stock is listed on the Nasdaq SmallCap Market or another
nationally recognized trading system on which the Common Stock is then
listed or quoted or (b) if the Common Stock is not then listed or quoted
on the Nasdaq SmallCap Market or another nationally recognized trading
system, then a day on which trading occurs on the New York Stock Exchange
(or any successor thereto).
2. Adjustments
(a) Adjustment for Stock Splits and Combinations. If the Company
shall at any time or from time to time after the Warrant Issue Date (i)
effect a subdivision of the outstanding Common Stock (whether by stock
split, stock dividend or otherwise), or (ii) combine the outstanding
shares of Common Stock (whether by reverse stock split or otherwise), the
Purchase Price in effect immediately before that subdivision or
combination shall be proportionately decreased. If the Company shall at
any time or from time to time after the Warrant Issue Date (x) combine the
outstanding shares of Common Stock (whether by reverse stock split or
otherwise), or (y) effect a subdivision of the outstanding shares of
Common Stock (whether by stock split, stock dividend or otherwise), the
Purchase Price in effect immediately before the combination or subdivision
shall be proportionately increased. Any adjustment under this paragraph
shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b) Adjustments for Dividends and Other Distributions. In the event
the Company at any time or from time to time after the Warrant Issue Date
shall make or issue, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution
payable in shares of Common Stock or other securities of the Company or in
cash or other property, then, and in each such event, the Registered
Holder shall receive upon exercise hereof, in addition to the number of
shares of Common Stock to be received upon such exercise, the kind and
amount of securities of the Company, cash or other property that they
would have been entitled to receive had this Warrant been exercised
(without use of the cashless exercise provisions) for shares of Common
Stock immediately prior to such event and had they thereafter, during the
period from the date of such event to and including the exercise date,
retained such securities, giving application to all adjustments called for
during such period under this paragraph with respect to the rights of the
Registered Holder.
(c) Adjustment for Merger or Reorganization, etc. If there shall
occur any reorganization, recapitalization, reclassification,
consolidation or merger involving the Company in which the Common Stock is
converted into or exchanged for securities, cash or other property (other
than a transaction covered by Subsections 2(a) or 2(b)), then, following
any such reorganization, recapitalization, reclassification, consolidation
or merger, this Warrant shall be exercisable into the kind and amount of
securities, cash or other property that a holder of the number of shares
of Common Stock of the Company issuable upon exercise of this Warrant
immediately prior to such reorganization, recapitalization,
reclassification, consolidation or merger would have been entitled to
receive pursuant to such transaction; and, in such case, appropriate
adjustment (as determined in good faith by the Board) shall be made in the
application of the provisions in
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this Warrant with respect to the rights and interests thereafter of the
Registered Holder, to the end that the provisions set forth in this
Warrant (including provisions with respect to changes in and other
adjustments of the Purchase Price) shall thereafter be applicable, as
nearly as reasonably may be, in relation to any securities or other
property thereafter deliverable upon the exercise of this Warrant.
(d) Rounding of Calculations. All calculations under this Warrant
shall be made to the nearest whole number of shares, with five tenths of a
share rounded up. The number of shares of Common Stock outstanding at any
given time shall not include shares owned or held by or for the account of
the Company, and the disposition of any such shares shall be considered an
issue or sale of Common Stock.
(e) Certificate as to Adjustments. Upon the occurrence of each
adjustment pursuant to this Warrant, the Company at its expense will
promptly compute such adjustment in accordance with the terms hereof and
prepare a certificate describing in reasonable detail such adjustment and
the transactions giving rise thereto, including all facts upon which such
adjustment is based. The Company will promptly deliver a copy of each such
certificate to the Registered Holder and to the Company's Transfer Agent.
The Company shall, as promptly as reasonably practicable after the written
request at any time of any Registered Holder (but in any event not later
than ten (10) days thereafter), furnish or cause to be furnished to such
Registered Holder a certificate setting forth (i) the Purchase Price then
in effect, and (ii) the number of shares of Common Stock and the amount,
if any, of other securities, cash or property that then would be received
upon the exercise of this Warrant.
(f) No Impairment. The Company shall at all times in good faith
assist in the carrying out of all terms and taking of all actions as may
be necessary or appropriate, pursuant to this Section 2, in order to
protect the rights of the Registered Holder against impairment.
3. Fractional Shares. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, but shall pay the value thereof
to the Registered Holder in cash on the basis of the Fair Market Value per share
of Common Stock.
4. Investment Representations. At the time of exercise of this Warrant,
the Registered Holder of this Warrant shall be required to represent and warrant
that: (a) it is an "accredited investor" as defined in Rule 501(a) under the
Securities Act of 1933, as amended; (b) it has made such inquiry concerning the
Company and its business and personnel as it has deemed appropriate; (c) it has
sufficient knowledge and experience in finance and business that it is capable
of evaluating the risks and merits of its investment in the Company and
protecting its own interests; and (d) if it is paying the Purchase Price in cash
pursuant to Subsection 1(a), it is acquiring the shares of Common Stock by
exercise hereof for investment and not with a view to the resale or distribution
of such shares or any interest therein. In addition, by reason of such exercise,
such holder shall become a party to the Investor Rights Agreement (dated the
Warrant Issue Date and among the Company and certain of its stockholders (the
"Investor Rights Agreement")), to the extent not already a party thereto, and
shall be entitled to all of the benefits and subject to all of the burdens of
such agreement.
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5. Transfers, etc.
(a) The Company shall maintain a register containing the name and
address of the Registered Holder of this Warrant. The Registered Holder
may change its address as shown on the warrant register by written notice
to the Company requesting such change.
(b) Subject to the provisions of this Section 5 and the Investor
Rights Agreement, this Warrant and all rights hereunder are transferable,
in whole or in part, upon surrender of this Warrant with a properly
executed assignment (in the form of Exhibit II hereto) at the principal
office of the Company (or, if another office or agency has been designated
by the Company for such purpose, then at such other office or agency).
6. Remedies. Nothing herein shall limit a Registered Holder's right to
pursue any other remedies available to it hereunder, at law or in equity,
including a decree of specific performance and/or injunctive relief with respect
to the Company's failure to timely deliver certificates representing shares of
Common Stock upon exercise of this Warrant as required pursuant to the terms
hereof.
7. Notices of Record Date, etc. In the event:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable
upon the exercise of this Warrant) for the purpose of
entitling or enabling them to receive any dividend or other
distribution, or to receive any right to subscribe for or
purchase any shares of stock of any class or any other
securities, or to receive any other right; or
(b) of any capital reorganization of the Company, any
reclassification of the Common Stock of the Company, any
consolidation or merger of the Company with or into another
Company (other than a consolidation or merger in which the
Company is the surviving entity and its Common Stock is not
converted into or exchanged for any other securities or
property), or any transfer of all or substantially all of the
assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
then, and in each such case, the Company will send or cause to be sent to the
Registered Holder a notice specifying, as the case may be, (i) the record date
for such dividend, distribution or right, and the amount and character of such
dividend, distribution or right, or (ii) the effective date on which such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up is to take place, and the time, if any is to be fixed,
as of which the holders of record of Common Stock (or such other stock or
securities at the time deliverable upon the exercise of this Warrant) shall be
entitled to exchange their shares of Common Stock (or such other stock or
securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be sent at least 10 days prior to
the record date or effective date for the event specified in such notice.
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8. Charges, Taxes and Expenses. The Company shall pay any and all issue
and other similar taxes that may be payable in respect of any issuance or
delivery of shares of Common Stock upon exercise of this Warrant. The Company
shall not, however, be required to pay any tax that may be payable in respect of
any transfer involved in the issuance and delivery of Warrant Shares or Warrants
in a name other than that in which this Warrant is registered.
9. Reservation of Stock. The Company shall at all times reserve and keep
available, solely for issuance and delivery upon the exercise of this Warrant,
such number of Warrant Shares and other securities, cash and/or property, as
from time to time shall be issuable upon the exercise of this Warrant. If the
number of shares of Common Stock so reserved is insufficient, in addition to any
other remedy available to the Registered Holder, the Company shall take any
corporate action that is necessary to make available a sufficient number of
authorized but unissued and otherwise unreserved shares of Common Stock within
60 days after the occurrence of such deficiency.
10. Obtaining Approvals and Listings. The Company will, at its own
expense, obtain and keep effective any and all permits, consents and approvals
of governmental agencies and authorities which may from time to time be required
of the Company in order to issue shares of Common Stock upon the exercise of the
Warrants and otherwise to perform its obligations hereunder, except, in each
case, for any such permits, consents and approvals (other than those relating to
blue sky laws) required as a result of the status of a Registered Holder of the
Warrants. The Company will, at its expense, obtain promptly and maintain the
approval for listing on the Nasdaq SmallCap Market or any successor thereto or
comparable system, upon official notice of issuance, the shares of Common Stock
issuable upon exercise of the then outstanding Warrants and maintain the listing
or quoting of such shares after their issuance so long as the Common Stock is so
listed or quoted; and the Company will also cause to be so listed or quoted,
will register under the Securities Exchange Act of 1934, as amended.
11. Exchange or Replacement of Warrants
(a) Upon the surrender by the Registered Holder, properly endorsed,
to the Company at the principal office of the Company, the Company shall,
subject to the provisions of Section 5 above, issue and deliver to or upon
the order of the Registered Holder, at the Company's expense, a new
Warrant or Warrants of like tenor, in the name of the Registered Holder or
as the Registered Holder (upon payment by the Registered Holder of any
applicable transfer taxes) may direct, calling in the aggregate on the
face or faces thereof for the number of shares of Common Stock (or other
securities, cash and/or property) then issuable upon exercise of this
Warrant.
(b) Upon receipt of evidence reasonably satisfactory to the Company
of the loss, theft, destruction or mutilation of this Warrant and (in the
case of loss, theft or destruction) upon delivery of an indemnity
agreement to the Company, or (in the case of mutilation) upon surrender
and cancellation of this Warrant, the Company will issue, in lieu thereof,
a new Warrant of like tenor.
12. Notices. All notices and other communications from the Company to the
Registered Holder in connection herewith shall be mailed by certified or
registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier service guaranteeing next business day
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delivery, to the address last furnished to the Company in writing by the
Registered Holder. All notices and other communications from the Registered
Holder to the Company in connection herewith shall be mailed by certified or
registered mail, postage prepaid, or sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery, to the Company at its
principal office. If the Company should at any time change the location of its
principal office to a place other than its current principal office, it shall
give prompt written notice to the Registered Holder and thereafter all
references in this Warrant to the location of its principal office at the
particular time shall be as so specified in such notice. All such notices and
communications shall be deemed delivered (a) two business days after being sent
by certified or registered mail, return receipt requested, postage prepaid, or
(b) one business day after being sent via a reputable nationwide overnight
courier service guaranteeing next business day delivery.
13. No Rights as Stockholder. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company. Notwithstanding the foregoing, in the event (a) the
Company effects a split of the Common Stock by means of a stock dividend and the
Purchase Price of and the number of Warrant Shares are adjusted as of the date
of the distribution of the dividend (rather than as of the record date for such
dividend) and (b) the Registered Holder exercises this Warrant between the
record date and the distribution date for such stock dividend, the Registered
Holder shall be entitled to receive, on the distribution date, the stock
dividend with respect to the shares of Common Stock acquired upon such exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.
14. Amendment. This Warrant may be amended only by a writing signed by
both the Company and the Registered Holder (or their respective successors or
assigns).
15. Construction. The section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties. The word "including" as used herein
shall not be construed so as to exclude any other thing not referred to or
described. In case any one or more of the provisions of this Warrant shall be
invalid or unenforceable in any respect, the validity and enforceability of the
remaining terms and provisions of this Warrant shall not in any way be affected
or impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
16. Governing Law; Waiver of Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Warrant shall be
governed by and construed and enforced in accordance with the internal laws of
the State of Delaware. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Warrant and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each of the Company and the Registered Holder
hereby waives all rights to a trial by jury.
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17. Facsimile Signature. This Warrant may be executed by facsimile
signature.
[signature page follows]
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Executed as of the Date of Issuance indicated above.
MTI TECHNOLOGY CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Attest:
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EXHIBIT I
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PURCHASE FORM
To: MTI Technology Corporation Dated: ____________
The undersigned is the Registered Holder of Warrant No. WA-____ (the
"Warrant") issued by MTI Technology Corporation, a Delaware corporation (the
"Company"). Capitalized terms used herein and not otherwise defined have the
respective meanings set forth in the Warrant.
a. The Warrant is currently exercisable to purchase a total of ________
Warrant Shares.
b. The undersigned Holder hereby exercises its right to purchase
_________________ Warrant Shares pursuant to the Warrant.
c. The Holder intends that payment of the Purchase Price shall be made
as (check one):
____ "Cash Exercise" under Subsection 1(a) of the Warrant
____ "Cashless Exercise" under Subsection 1(b) of the Warrant
d. If the holder has elected a Cash Exercise, the holder shall pay the
sum of $____________ to the Company in accordance with the terms of
the Warrant.
e. Pursuant to this exercise, the Company shall deliver to the
Registered Holder _______________ Warrant Shares in accordance with
the terms of the Warrant.
Following this exercise, the Warrant shall be exercisable to purchase a
total of ____________ shares. The undersigned represents and warrants to the
Company that: (a) it is an "accredited investor" as defined in Rule 501(a) under
the Securities Act of 1933, as amended; (b) it has made such inquiry concerning
the Company and its business and personnel as it has deemed appropriate; (c) it
has sufficient knowledge and experience in finance and business that it is
capable of evaluating the risks and merits of its investment in the Company; and
(d) if it is paying the Purchase Price by "Cash Exercise" pursuant to Subsection
1(a), it is acquiring the shares of Common Stock by exercise hereof for
investment and not with a view to the resale or distribution of such shares or
any interest therein. In addition, the undersigned agrees to be bound by the
terms and conditions of the Investor Rights Agreement with respect to all shares
received upon said exercise of the Warrant.
Dated: ____________, ____ Name of Holder:
(Print)
__________________________________
By:
______________________________________
Name:
_____________________________________
Title:
_____________________________________
(Signature must conform in all
respects to name of holder as
specified on the face of the
Warrant)
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EXHIBIT II
ASSIGNMENT FORM
For Value Received, _______________________________________ hereby sells,
assigns and transfers all of the rights of the undersigned under the attached
Warrant (No. ____) with respect to the number of shares of Common Stock of MTI
Technology Corporation. covered thereby set forth below, unto:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
Dated: Signature:
_________________________________ ____________________________
Signature Guaranteed:
By:
_________________________________
The signature should be
guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings
and loan associations and credit unions with
membership in an approved signature
guarantee medallion program) pursuant to
Rule 17Ad-15 under the Securities Exchange
Act of 1934.
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