AMENDMENT NO. 1 TO SERIES A WARRANT TO PURCHASE SHARES OF COMMON STOCK OF GLOWPOINT, INC.
AMENDMENT
NO. 1
TO
SERIES
A WARRANT TO PURCHASE
SHARES
OF COMMON STOCK OF
GLOWPOINT,
INC.
THIS
AMENDMENT NO. 1 TO SERIES A WARRANT TO PURCHASE SHARES OF COMMON STOCK OF
GLOWPOINT, INC. (this “Amendment”), dated as of September 21, 2007, is made by
and among Glowpoint, Inc., a Delaware corporation (the “Issuer”) and
___________________ (the “Holder”).
Preliminary
Statement
WHEREAS,
the Issuer is the issuer and the Holder is the holder of Series A Warrant No.
_______ to Purchase Common Stock of the Issuer (the “Warrant”); and
WHEREAS,
the Issuer and the Holder desire to amend certain provisions of the Warrant
as
described herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties, intending to be legally bound, hereby
agree as follows:
1. Capitalized
Terms.
Capitalized terms used, but not defined, herein, shall have the meanings
ascribed to such terms in the Warrant.
2. Amendments
to Warrant.
(a) Additional
Shares of Common Stock.
The
definition of “Additional Shares of Common Stock” in Section 8 of the Warrant is
hereby deleted in its entirety and the following new definition shall be
substituted in lieu thereof:
“
“Additional
Shares of Common Stock”
means
all shares of Common Stock issued by the Issuer after the Original Issue Date,
and all shares of Other Common, if any, issued by the Issuer after the Original
Issue Date, except: (i) securities issued (other than for cash) in connection
with a merger, acquisition, or consolidation, (ii) securities issued pursuant
to
the conversion or exercise of convertible or exercisable securities issued
or
outstanding on or prior to the date hereof (so long as the conversion or
exercise price in such securities are not amended to lower such price and/or
adversely affect the Holders) or
issued
pursuant to the Purchase Agreements, as amended, (iii) securities issued
pursuant to the terms of that certain Exchange Agreement, dated as of September
21, 2007, by and among the Maker and the holders signatory thereto, (iv) the
issuance of the Notes and the Warrants, (v) the shares of Common Stock issuable
upon the conversion of the Notes, (vi) the Warrant Stock, (vii) securities
issued in connection with bona fide strategic license agreements or other
partnering arrangements so long as such issuances are not for the purpose of
raising capital, (viii) Common Stock issued or the issuance or grants of options
to purchase Common Stock pursuant to Issuer’s stock option plans and employee
stock purchase plans approved by the Issuer’s board of directors, so long as
such issuances in the aggregate do not exceed the number of shares of Common
Stock (or options to purchase such number of shares of Common Stock) issuable
pursuant to such plans as they exist as of September 21, 2007, (ix) any warrants
issued to the placement agent and its designees for the transactions
contemplated by the Purchase Agreements, (x) the payment of any dividends on
the
Issuer’s Series B convertible preferred stock, (xi) securities issued pursuant
to a bona fide firm underwritten public offering of the Issuer’s securities,
(xii) the payment of liquidated damages pursuant to the Registration Rights
Agreement dated February 17, 2004 between the Issuer and the parties listed
therein and (xiii) the issuance of Common Stock upon the exercise or conversion
of any securities described in clauses (i) through (xii) above.”
(b) Notes.
The
definition of “Notes” in Section 8 of the Warrant is hereby deleted in its
entirety and the following new definition shall be substituted in lieu
thereof:
“
“Notes”
shall
mean collectively, each of the following, as the same may be amended from time
to time: (1) the senior secured convertible promissory notes issued pursuant
to
the Purchase Agreement, and that certain Note and Warrant Purchase Agreement,
dated as of April 12, 2006, by and among the Maker and the purchasers listed
therein (collectively with the Purchase Agreement, the “2006
Purchase Agreements”),
(2)
the additional senior secured convertible promissory notes in the aggregate
principal amount of up to $3,600,000 issued pursuant to that certain Note and
Warrant Purchase Agreement, dated as of September 21, 2007, by and among the
Maker and the purchasers listed therein (collectively with the 2006 Purchase
Agreements, the “Purchase
Agreements”),
and
(3) any additional senior secured convertible promissory notes issued from
time
to time as interest on the outstanding principal balance of the foregoing
promissory notes.”
(c) Warrants.
The
definition of “Warrants” in Section 8 of the Warrant is hereby deleted in its
entirety and the following new definition shall be substituted in lieu
thereof:
“
“Warrants”
shall
mean, collectively, each of the following, as the same may be amended from
time
to time: (A) the warrants to purchase shares of Common Stock issued pursuant
to
the Purchase Agreements (including, without limitation, this Warrant); (B)
the
warrants to purchase shares of Common Stock issued in connection with the
amendment of the senior secured convertible promissory notes issued pursuant
to
the 2006 Purchase Agreements; and (C) any other warrants of like tenor issued
in
substitution or exchange for any of the foregoing Warrants pursuant to the
provisions of Section 2(c), 2(d) or 2(e) thereof.”
(d) Notice
of Adjustments.
Section
5 of the Warrant is hereby deleted in its entirety and the following new Section
5 shall be substituted in lieu thereof:
“5. Notice
of Adjustments; Dispute Resolution.
Whenever the Warrant Price or Warrant Share Number shall be adjusted pursuant
to
Section 4 hereof (for purposes of this Section 5, each an "adjustment"),
the
Issuer shall cause its Chief Financial Officer to prepare and execute a
certificate setting forth, in reasonable detail, the event requiring the
adjustment, the amount of the adjustment, the method by which such adjustment
was calculated (including a description of the basis on which the Board made
any
determination hereunder), and the Warrant Price and Warrant Share Number after
giving effect to such adjustment, and shall cause copies of such certificate
to
be delivered to the Holder of this Warrant promptly after each adjustment.
Notwithstanding any dispute between the Issuer and the Holder of this Warrant
with respect to the matters set forth in such certificate, the Issuer shall
cause its transfer agent to promptly issue to the Holder the number of shares
of
Warrant Stock that is not disputed.”
(e) Certain
Other Distributions.
Section
4(c)(i) of the Warrant is hereby amended by deleting the parenthetical contained
therein.
(f) Notices
to the Company.
The
notices information for the Issuer in Section 12 of the Warrant is hereby
deleted in its entirety and the following new notices information be substituted
in lieu thereof:
“Glowpoint,
Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
Hillside,
New Jersey 07205
Attention:
Chief Executive Officer
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
and
General
Counsel
Glowpoint,
Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇
Hillside,
New Jersey 07205
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇ ▇ ▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copies (which copies
shall
not
constitute notice
to
the
Issuer) to:
▇▇▇▇▇▇▇
P.C.
One
Gateway Center
Newark,
New Jersey 07102
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Tel.
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇”
3. Ratification.
Except
as expressly amended hereby, all of the terms, provisions and conditions of
the
Warrant are hereby ratified and confirmed in all respects by each party hereto
and, except as expressly amended hereby, are, and hereafter shall continue,
in
full force and effect.
4. Entire
Agreement.
This
Amendment and the Warrant constitute the entire agreement of the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements and understandings, both written and oral, between the parties with
respect thereto.
5. Amendments.
No
amendment, supplement, modification or waiver of this Amendment shall be binding
unless executed in writing by all parties hereto.
6. Counterparts.
This
Amendment may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall constitute
but
one contract. Each party shall be entitled to rely on a facsimile signature
of
any other party hereunder as if it were an original.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws of the State of New York, without giving effect to any of the conflicts
of
law principles which would result in the application of the substantive law
of
another jurisdiction.
8. Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
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| [Holder] | ||
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Signature
Page to Amendment No. 1 to Warrant