EXHIBIT 10.26
AMENDMENT TO SERIES A WARRANTS
This AMENDMENT (the "Amendment") to the Warrants to Purchase Shares of
Common Stock dated as of July 20, 2001 (the "Warrants") issued to certain
purchasers (each of such purchasers together with any transferee of such
purchaser's Warrants, a "Holder" and collectively, the "Holders") of the Series
A Preferred Stock of Notify Technology Corporation, a California corporation
(the "Company"), pursuant to the Subscription Agreement made as of July 20, 2001
(the "Subscription Agreement") is made and entered into as of September 12,
2006. Capitalized terms used and not otherwise defined in this Amendment shall
have the meanings ascribed to them in the Warrants.
RECITALS
A. The Company has been required to record certain
accounting charges as a result of provisions in Section 10 of the Warrants, and
the Company has requested that the Holders agree to amend the Warrant in
accordance with Section 13 thereof to modify the provisions resulting in the
requirement that the Company recognize such accounting charges.
B. The undersigned Holders believe that the amendment is
in the best interests of the Company, the Holders, and other holders of the
Company's outstanding securities and therefore have agreed to amend the Warrants
as set forth herein.
C. Pursuant to Section 13 of the Warrants, the Warrants
may be amended by the Company, Commonwealth Associates, L.P., and a committee to
be designated by Commonwealth Associates, L.P.; provided that, no amendment
decreasing the number of Warrant Shares issuable upon exercise of the Warrants
shall be made without the consent in writing of the holders of not less than
fifty percent (50%) of the outstanding Series A Warrants (as defined in the
Warrants).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Holders,
holding not less than fifty percent (50%) of the currently outstanding Series A
Warrants, hereby agree as follows:
1. Amendment to Section 10. Section 10 of each of the Series A
Warrants is hereby amended to add the following as a new Section 10(c):
"(c) Notwithstanding any contrary provision of this Warrant or this
Section 10, the maximum number of additional Warrant Shares subject to
issuance as a result of penalties upon one or more defaults described
in this Section 10 shall equal that number of additional Warrant Shares
determined if the Company remained, with respect to its first default,
in such default for five consecutive thirty (30) day periods. For
purposes of calculating such aggregate maximum, the Warrants shall be
aggregated with the outstanding Commitment Warrant to Purchase 118,151
Shares of Common Stock issued on May 16, 2001 to ComVest Venture
Partners, L.P. and the warrants issuable upon exercise of the Unit
Purchase Options issued in July 2001 to purchasers of Series A
Preferred Stock pursuant to the Subscription Agreement, all of which
warrants contain comparable provisions to this Section 10 and all of
which shall be deemed one warrant for purposes of any calculation
pursuant hereto."
2. Continuing Agreement. Except as specifically amended hereby,
all of the terms of the Series A Warrants shall remain and continue in full
force and effect and are hereby confirmed in all respects.
3. Authority; Severability. The Company and the undersigned
Holders each warrant that the person(s) signing below is/are authorized to sign
this Amendment on its behalf and to bind it to the terms of this Amendment.
Should any provision of this Amendment be held by a court of competent
jurisdiction to be invalid or illegal, such invalidity or illegality shall not
invalidate the whole of this Amendment, but rather the Amendment shall be
construed as if it did not contain the invalid or illegal part, and the rights
and obligations of the parties shall be construed and enforced accordingly.
4. Counterparts. This Amendment may be executed in counterparts
and the signature pages may be combined to create a document binding on all of
the parties hereto.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of California,
without regard to the choice of law provisions thereof.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the Company and the undersigned have caused their
duly authorized representatives to execute this Amendment to the Series A
Warrants as of the date first written above.
"COMPANY" NOTIFY TECHNOLOGY CORPORATION
a California corporation
By: /s/ Paul DePond
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Paul F. DePond
President & Chief Executive Officer
"HOLDERS" COMMONWEALTH ASSOCIATES, L.P.
By: /s/ Robert A. O'Sullivan
-----------------------------------
Name: Robert A. O'Sullivan
Title: CEO & President
RMC CAPITAL, LLC
By: /s/ Michael Acks
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Name: Michael Acks
Title: President
SIAM PARTNERS II
By: /s/ Edmund H. Shea
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Name: Edmund H. Shea
Title: General Partner
TAHOE PARTNERSHIP
By: /s/ Peter O. Shea
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Name: Peter O. Shea
Title: Managing Partner
(Signature page to Notify Technology Corporation
Amendment to Series A Warrant)