EXHIBIT 10.44
NEITHER THIS WARRANT, NOR THE COMMON STOCK TO BE ISSUED UPON EXERCISE OF THIS
WARRANT, HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR QUALIFIED UNDER THE APPLICABLE SECURITIES LAWS OF ANY OTHER
JURISDICTION (THE "LAW"), AND THIS WARRANT HAS BEEN, AND THE COMMON STOCK TO BE
ISSUED UPON EXERCISE OF THIS WARRANT WILL BE, ACQUIRED FOR INVESTMENT AND NOT
WITH A VIEW TO, OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION OF THE
WARRANT OR COMMON STOCK AS APPLICABLE. SUCH SECURITIES MAY NOT BE SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED OR THE SUBJECT OF ANY OTHER DISPOSITION WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND QUALIFICATION UNDER ANY
APPLICABLE LAW OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY (AS THAT
TERM IS DEFINED BELOW) AND ITS COUNSEL, THAT THE REGISTRATION AND QUALIFICATION
ARE NOT REQUIRED UNDER THE ACT AND LAW, RESPECTIVELY.
No. W-01A Warrant to Purchase 10,500
Shares of Common Stock
WARRANT TO PURCHASE COMMON STOCK
OF
MTI TECHNOLOGY CORPORATION
VOID AFTER DECEMBER 31, 2001
This certifies that, for value received, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or registered
assigns (the "Holder"), is entitled, subject to the terms set forth below, to
purchase from MTI Technology Corporation (the "Company"), a corporation
organized under the laws of the State of Delaware, 10,500 shares of the Common
Stock of the Company, $.001 value per share (the "Common Stock"), as constituted
on the date hereof (the "Warrant Issue Date"), upon surrender hereof, at the
principal office of the Company referred to below, with the subscription form
attached hereto duly executed, and simultaneous payment therefor in lawful money
of the United States or otherwise as hereinafter provided, at the Exercise Price
as set forth in Section 2 below. The number, character and Exercise Price of
such shares of Common Stock are subject to adjustment as provided below. The
term "Warrant" as used herein shall include this Warrant, and any warrants
delivered in substitution or exchange therefor as provided herein.
1. Term of Warrant. Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part, beginning on May
27, 2001, the Warrant Issue Date and ending at 5:00 p.m., Pacific standard time,
on December 31, 2001, and shall be void thereafter.
2. Exercise Price. The Exercise Price at which this Warrant may be
exercised shall be $3.00 per share of Common Stock, as adjusted from time to
time pursuant to Section 11 hereof.
3. Exercise of Warrant.
(a) The purchase rights represented by this Warrant are exercisable
by the Holder in whole or in part, but not for less than one thousand (1,000)
shares at any time, or from time to time during the term hereof as described in
Section 1 above, by the surrender of this Warrant and the Notice of Exercise
annexed hereto as Exhibit "A" duly completed and executed on behalf of the
Holder, at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder at the address of
the Holder appearing on the books of the Company), upon payment (i) in cash or
by check acceptable to the Company, (ii) by cancellation by the Holder of
indebtedness of the Company to the Holder, (iii) by net issue exercise pursuant
to Section 3(c) or (iv) by a combination of (i), (ii) and (iii) equal to the
aggregate Exercise Price of the shares to be purchased.
(b) This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person entitled to receive the shares of Common Stock
issuable upon such exercise shall be treated for all purposes as the holder of
record of such shares as of the close of business on such date. As promptly as
practicable on or after such date and in any event within ten (10) days
thereafter, the Company at its expense shall issue and deliver to the person or
persons entitled to receive the same a certificate or certificates for the
number of shares issuable upon such exercise. In the event that this Warrant is
exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of shares for which this
Warrant may then be exercised.
(c) Net Issue Exercise. In lieu of paying the aggregate Exercise
Price for the Common Stock by one of the payment methods specified in Section
3(a) above, the Holder may elect to receive shares of Common Stock equal to the
value of this Warrant (or the portion thereof being canceled) by surrender of
this Warrant at the principal office of the Company together with notice of such
election, in which event the Company shall issue to the Holder a number of
shares of the Company's Common Stock computed using the following formula:
Y(A-B)
X = -------------
A
Where X = the number of shares of Common Stock to be issued to Holder.
Y = the number of shares of Common Stock purchasable under this Warrant
or, if only a portion of this Warrant is being exercised, the portion
of the Warrant being canceled (at the date of such calculation).
A = the fair market value of one share of the Company's Common Stock (at
the date of such calculation).
B = Exercise Price (as adjusted to the date of such calculation).
For the purposes of the above calculation, the fair market value of the
Common Stock shall mean with respect to each share of Common Stock:
(i) the average of the closing bid and asked prices of the Company's
Common Stock quoted in the Over-The-Counter Market Summary or the closing price
quoted on the Nasdaq National Market or any exchange on which the Common Stock
is listed, whichever is applicable, as published in the Western Edition of The
Wall Street Journal for the ten (10) trading days prior to the date of
determination of fair market value; or
(ii) if the Company's Common Stock is not traded Over-The-Counter or
on an exchange, fair market value of each share of the Common Stock shall be
determined in good faith by the Company's Board of Directors. Receipt and
acknowledgment of this Warrant by the Holder shall be deemed to be an
acknowledgment and acceptance of any such fair market value determination by the
Company's Board of Directors as the final and binding determination of such
value for purposes of this Section 3(c).
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4. No Fractional Shares or Scrip. No fractional shares or scrip
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
5. Replacement of Warrant. On 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, on delivery of an
indemnity agreement reasonably satisfactory in form and substance to the Company
or, in the case of mutilation, on surrender and cancellation of this Warrant,
the Company at its expense shall execute and deliver, in lieu of this Warrant, a
new warrant of like tenor and amount.
6. Rights of Stockholders. Subject to Sections 9 and 11 of this Warrant,
the Holder shall not be entitled to vote or receive dividends or be deemed the
holder of Common Stock or any other securities of the Company that may at any
time be issuable on the exercise hereof for any purpose, nor shall anything
contained herein be construed to confer upon the Holder, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action (whether upon any
recapitalization, issuance of stock, reclassification of stock, change of par
value, or change of stock to no par value, consolidation, merger, conveyance, or
otherwise) or to receive notice of meetings, or to receive dividends or
otherwise until the Warrant shall have been exercised as provided herein.
7. Transfer of Warrant.
(a) The Company will maintain a register (the "Warrant Register")
containing the names and addresses of the Holder and its transferees. Any Holder
of this Warrant or any portion thereof may change his address as shown on the
Warrant Register by written notice to the Company requesting such change. Any
notice or written communication required or permitted to be given to the Holder
may be delivered or given by mail to such Holder as shown on the Warrant
Register and at the address shown on the Warrant Register. Until this Warrant is
transferred on the Warrant Register of the Company, the Company may treat the
Holder as shown on the Warrant Register as the absolute owner of this Warrant
for all purposes, notwithstanding any notice to the contrary.
(b) The Company may, by written notice to the Holder, appoint an
agent for the purpose of maintaining the Warrant Register referred to in Section
7(a) above, issuing the Common Stock or other securities then issuable upon the
exercise of this Warrant, exchanging this Warrant, replacing this Warrant, or
any or all of the foregoing. Thereafter, any such registration, issuance,
exchange, or replacement, as the case may be, shall be made at the office of
such agent.
(c) This Warrant may not be transferred or assigned in whole or in
part without compliance with all applicable federal and state securities laws by
the transferor and the transferee (including the delivery of investment
representation letters and, if this Warrant is sold, pledged or hypothecated in
whole or in part, legal opinions reasonably satisfactory to the Company and its
counsel, if such are requested by the Company). Subject to the provisions of
this Warrant with respect to compliance with the Securities Act of 1933, as
amended (the "Act"), title to this Warrant may be transferred by endorsement (by
the Holder executing the Assignment Form annexed hereto) and delivery in the
same manner as a negotiable instrument transferable by endorsement and delivery.
(d) On surrender of this Warrant for exchange, properly endorsed on
the Assignment Form and subject to the provisions of this Warrant with respect
to compliance with the Act and with the limitations on assignments and transfers
and contained in this Section 7, the Company at its expense
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shall issue to or on the order of the Holder a new warrant or warrants of like
tenor, in the name of the Holder or as the Holder (on payment by the Holder of
any applicable transfer taxes) may direct, for the number of shares issuable
upon exercise hereof.
(e) Compliance with securities laws; Holder representations:
(i) The Holder of this Warrant, by acceptance hereof,
acknowledges that this Warrant and the shares of Common Stock to be issued upon
exercise hereof, if the issuance or resale thereof is unregistered under the
Act, 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 Common Stock to be
issued upon exercise hereof except under circumstances that will not result in a
violation of the Act or any applicable state securities laws. Upon exercise of
this Warrant, the Holder shall, if requested by the Company, confirm in writing,
in a form satisfactory to the Company, that Holder has such investment intent as
is required under the Act, if any.
(ii) The Holder represents and warrants that (i) either it is an
"accredited investor" within the meaning of Rule 501 promulgated under the Act,
or, if requested by the Company will deliver an opinion in a form reasonably
satisfactory to the Company that the issuance of this Warrant and the issuance
of shares of Common Stock upon the exercise of this Warrant are and will be
transactions exempt from the registration and/or qualification requirements of
the Act or any applicable state securities laws; and (ii) that it has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the Warrant and the shares
of Common Stock to be issued upon the exercise of the Warrant and has the
ability to bear the economic risks of its investment in the Warrant and the
shares of Common Stock to be issued upon the exercise of the Warrant.
(iii) This Warrant and all shares of Common Stock issued upon
exercise hereof that are not registered under the Act shall be stamped or
imprinted with a legend in substantially the following form (in addition to any
legend required by state securities laws):
THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT AND
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
SUCH SECURITIES AND ANY SECURITIES OR SHARES ISSUED HEREUNDER OR
THEREUNDER MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SECURITIES AND RESTRICTING
THEIR TRANSFER OR SALE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST
MADE BY THE HOLDER OF RECORD HEREOF TO THE SECRETARY OF THE COMPANY AT
THE PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
8. Reservation of Stock. The Company covenants that during the period
this Warrant is exercisable, the Company will reserve and keep available from
its authorized and unissued Common Stock a sufficient number of shares to
provide for the issuance of all Common Stock issuable upon the exercise of this
Warrant and, from time to time, will take all steps necessary to amend its
Certificate of Incorporation (the "Certificate") to provide sufficient reserves
of shares of Common Stock issuable upon exercise of this Warrant. The Company
further covenants that all shares that may be issued upon the exercise of rights
represented by this Warrant and payment of the Exercise Price, all as set forth
herein, will be duly and validly issued and fully paid and nonassessable, not
subject to preemptive rights, free from all taxes, liens and charges in respect
of the issue thereof (other than taxes in respect of any transfer occurring
contemporaneously or otherwise specified herein). The Company agrees that its
issuance of
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this Warrant shall constitute full authority to its officers who are charged
with the duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock upon the exercise of this Warrant.
Before taking any action which would cause an adjustment reducing the
current Exercise Price below the then par value, if any, of the shares of Common
Stock issuable upon exercise of this Warrant, the Company shall take any
corporate action which may be necessary in order that the Company may validly
and legally issue fully paid and nonassessable shares of such Common Stock at
such adjusted Exercise Price.
Before taking any action which would result in an adjustment in the
number of shares of Common Stock for which this Warrant is exercisable or in the
current Exercise Price, the Company shall obtain all such authorizations or
exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
9. Notices.
(a) Whenever the Exercise Price or number of shares purchasable
hereunder shall be adjusted pursuant to Section 11 hereof, the Company shall
issue a certificate signed by its Chief Financial Officer setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Exercise
Price and number of shares purchasable hereunder after giving effect to such
adjustment, and shall cause a copy of such certificate to be mailed (by
first-class mail, postage prepaid) to the Holder of this Warrant.
(b) In case:
(i) the Company shall take a record of the holders of its
Common Stock for the purpose of entitling them to receive any
dividend or other distribution, or 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
(ii) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another
corporation, or any conveyance of all or substantially all of the
assets of the Company to another corporation, or
(iii) of any voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
then, and in each such case, the Company will mail or cause to be
mailed to the Holder a notice specifying, as the case may be, (A) the
date on which a record is to be taken for the purpose of such
dividend, distribution or right, and stating the amount and character
of such dividend, distribution or right, or (B) the date on which
such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding-up is to take place,
and the time, if any is to be fixed, as of which the holder of record
of Common Stock (or such stock or securities at the time receivable
upon the exercise of this Warrant) shall be entitled to exchange
their shares (or such other stock or securities) for securities or
other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution,
liquidation or winding-up. Such notice shall be mailed at least
fifteen (15) days prior to the date therein specified.
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(c) All such notices, advices and communications shall be deemed to
have been received (i) in the case of personal delivery, on the date of such
delivery, and (ii) in the case of mailing, on the third business day following
the date of such mailing.
10. Amendments.
(a) Any term of this Warrant may be amended with the written consent
of the Company and the Holder. Any amendment effected in accordance with this
Section 10 shall be binding upon the Holder, each future holder of all rights
pursuant to this Warrant, and the Company.
(b) No waivers of, or exceptions to, any term, condition or
provision of this Warrant, in any one or more instances, shall be deemed to be,
or construed as, a further or continuing waiver of any such term, condition or
provision.
11. Adjustments. The Exercise Price and the number of shares of Common
Stock purchasable hereunder are subject to adjustment from time to time as
follows:
(a) If at any time while this Warrant, or any portion thereof, is
outstanding and unexpired there shall be (i) a reorganization (other than a
combination, reclassification, exchange or subdivision of shares otherwise
provided for herein), (ii) a merger or consolidation of the Company with or into
another corporation in which the Company is not the surviving entity, or a
reverse triangular merger in which the Company is the surviving entity but the
shares of the Company's capital stock outstanding immediately prior to the
merger are converted by virtue of the merger into other property, whether in the
form of securities, cash, or otherwise, (iii) an offering of Common Stock or any
other securities pro rata among the shareholders, or (iv) a sale or transfer of
the Company's properties and assets as, or substantially as, an entirety to any
other person, then, as a part of such reorganization, merger, consolidation,
sale or transfer, lawful provision shall be made so that the Holder of this
Warrant shall thereafter be entitled to receive upon exercise of this Warrant,
during the period specified herein and upon payment of the Exercise Price then
in effect, the number of shares of stock or other securities or property of the
successor corporation resulting from such reorganization, merger, consolidation,
sale or transfer that a Holder of the shares deliverable upon exercise of this
Warrant would have been entitled to receive in such reorganization,
consolidation, merger, sale or transfer if this Warrant had been exercised
immediately before such reorganization, merger, consolidation, sale or transfer,
all subject to further adjustment as provided in this Section 11. The foregoing
provisions of this Section 11(a) shall similarly apply to successive
reorganizations, consolidations, mergers, sales and transfers and to the stock
or securities of any other corporation that are at the time receivable upon the
exercise of this Warrant. If the per-share consideration payable to the Holder
hereof for shares in connection with any such transaction is in a form other
than cash or marketable securities, then the value of such consideration shall
be determined in good faith by the independent members of the Company's Board of
Directors. In all events, appropriate adjustment (as determined in good faith by
the independent members of the Company's Board of Directors) shall be made in
the application of the provisions of this Warrant with respect to the rights and
interests of the Holder after the transaction, to the end that the provisions of
this Warrant shall be applicable after that event, as near as reasonably may be,
in relation to any shares or other property deliverable after that event upon
exercise of this Warrant.
(b) If the Company, at any time while this Warrant, or any portion
thereof, remains outstanding and unexpired, by reclassification of securities or
otherwise, shall change any of the securities as to which purchase rights under
this Warrant exist into the same or a different number of securities of any
other class or classes, this Warrant shall thereafter represent the right to
acquire such number and kind of securities as would have been issuable as the
result of such change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such
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reclassification or other change and the Exercise Price therefor shall be
appropriately adjusted, all subject to further adjustment as provided in this
Section 11.
(c) If the Company at any time while this Warrant, or any portion
thereof, remains outstanding and unexpired, shall split, subdivide or combine
the securities as to which purchase rights under this Warrant exist, into a
different number of securities of the same class, the Exercise Price for such
securities shall be proportionately decreased in the case of a split or
subdivision or proportionately increased in the case of a combination.
(d) If while this Warrant, or any portion thereof, remains
outstanding and unexpired, the holders of the securities as to which purchase
rights under this Warrant exist at the time shall have received, or, on or after
the record date fixed for the determination of eligible Stockholders, shall have
become entitled to receive, without payment therefor, other or additional stock
or other securities or property (other than cash) of the Company by way of
dividend, then and in each case, this Warrant shall represent the right to
acquire, in addition to the number of shares of the security receivable upon
exercise of this Warrant, and without payment of any additional consideration
therefor, the amount of such other or additional stock or other securities or
property (other than cash) of the Company that such holder would hold on the
date of such exercise had it been the holder of record of the security
receivable upon exercise of this Warrant on the date hereof and had thereafter,
during the period from the date hereof to and including the date of such
exercise, retained such shares and/or all other additional stock available by it
as aforesaid during such period, giving effect to all adjustments called for
during such period by the provisions of this Section 11.
(e) Upon the occurrence of each adjustment or readjustment pursuant
to this Section 11, the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to
each Holder of this Warrant a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon the written request, at any time,
of any such Holder, furnish or cause to be furnished to such Holder a like
certificate setting forth: (i) such adjustments and readjustments; (ii) the
Exercise Price at the time in effect; and (iii) the number of shares and the
amount, if any, of other property that at the time would be received upon the
exercise of the Warrant.
(f) The Company will not, by any voluntary action, avoid or seek to
avoid the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in the carrying out of all the provisions of this Section 11 and in the taking
of all such actions as may be necessary or appropriate in order to protect the
rights of the Holders of this Warrant against impairment.
12. Limitation of Liability. No provision hereof, in the absence of
affirmative action by the Holder to purchase shares of Common Stock, and no
enumeration herein of the rights or privileges of the Holder hereof, shall give
rise to any liability of such Holder for the purchase price of any Common Stock
or as a stockholder of the Company, whether such liability is asserted by the
Company or by creditors of the Company.
13. Standard Provisions.
(a) Notice. Except as otherwise expressly provided herein, all
notices referred to in this Warrant will be in writing and will be delivered
personally or by registered or certified mail, return receipt requested, postage
prepaid and will be deemed to have been given when so personally delivered or on
the date of receipt appearing on the return receipt requested or, if refused, on
the date of refusal,
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(i) To the Company: With a copy to:
MTI Technology Corporation ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, Esq.
(ii) To the Holder:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(b) Construction and Titles. This Warrant has been negotiated
between the parties hereto, and the language hereof shall not be construed for
or against any party. The titles and subtitles used in this Warrant are used for
convenience only and are not to be considered in construing or interpreting this
Warrant. A reference herein to any Section shall be deemed to include a
reference to every subsection thereof. All pronouns contained herein, and any
variations thereof, shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as to the identity of the parties hereto may
require.
(c) Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to the Holder under this Warrant, upon any breach or
default of the Company under this Warrant, shall impair any such right, power or
remedy of the Holder nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of Holder, or any waiver on the part of Holder, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Warrant or by law or otherwise afforded
to Holder shall be cumulative and not alternative.
(d) Successors and Assigns. The terms and conditions of this Warrant
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties, except as expressly limited in this Warrant. Nothing in
this Warrant, express or implied, is intended to confer upon any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Warrant, except
as expressly provided in this Warrant.
(e) Severability. If any provisions of this Warrant is held to be
unenforceable under applicable law, it shall be interpreted, to the extent
possible, to enhance its enforceability in order to achieve the intent of the
parties to this Warrant. But if no feasible construction would save the
provision, the parties agree to renegotiate such provision in good faith. In the
event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, its invalidity, illegality or unenforceability
shall not affect any other provision of this Warrant; rather this Warrant shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein; provided, however, no such severability shall be
effective if it materially changes the economic benefit of this Warrant to any
party. The invalidity of any provision of this Warrant as applied to certain
circumstances shall not affect the validity or enforceability of such provision
as applied to other circumstances or any other provisions of this Warrant.
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(f) Governing Law. This Warrant and all acts and transactions
pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of
California as applied to agreements among California residents entered into and
to be performed entirely in California.
(g) Attorneys' Fees. If any action at law or in equity (including
arbitration) is instituted to enforce or interpret the terms of the Warrants,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
IN WITNESS WHEREOF, the Company has caused this Warrant to be
executed by its officers thereunto duly authorized.
Dated as of October 23, 2001 MTI TECHNOLOGY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Title: President, CEO
---------------------------
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EXHIBIT A
NOTICE OF EXERCISE
NOTICE OF EXERCISE
To: MTI Technology Corporation
(1) The undersigned hereby elects to purchase ________ shares of
Common Stock of MTI Technology Corporation, pursuant to the
terms of the attached Warrant.
(2) The undersigned Holder elects to exercise the Warrant for such
shares of Common Stock in the following manner:
[ ] in cash or by the enclosed check in a form acceptable
to the Company, made payable to the Company in the
amount of $ __________;
[ ] by cancellation of indebtedness of the Company in the
amount of $__________;
[ ] by net issue exercise pursuant to Section 3(c) of the
Warrant; or
[ ] by the combination of the foregoing indicated above.
(3) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired
solely for the account of the undersigned and not as a nominee
for any other party, and for investment, and that the
undersigned will not offer, sell or otherwise dispose of any
such shares of Common Stock except under circumstances that will
not result in a violation of the Securities Act of 1933, as
amended (the "Act");
(4) In exercising this Warrant, the undersigned hereby represents
and warrants that (i) either it is an "accredited investor"
within the meaning of Rule 501 promulgated under the Act, or, if
requested by the Company, will deliver an opinion in a form
reasonably satisfactory to the Company that the issuance of this
Warrant and the issuance of shares of Common Stock upon the
exercise of this Warrant are and will be transactions exempt
from the registration and/or qualification requirements of the
Act or any applicable state securities laws; and (ii) that it
has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of
its investment in the Warrant and the shares of Common Stock to
be issued upon the exercise of the Warrant and has the ability
to bear the economic risks of its investment in the Warrant and
the shares of Common Stock to be issued upon the exercise of the
Warrant.
(5) Please issue a certificate or certificates representing said
shares of Common Stock in the name of the undersigned or in such
other name as is specified below:
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(Name)
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(Name)
(6) Please issue a new Warrant for the unexercised portion of the
attached Warrant in the name of the undersigned or in such other
name as is specified below:
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(Name)
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(Name)