Exhibit 4.5
[EXECUTION COPY]
STOCK PURCHASE AGREEMENT
BETWEEN
THE A CONSULTING TEAM, INC.
AND EACH OF
XXXXXXX X. XXXXXXXXX 12/18/80 TRUST
AND
XXXXXXX X. XXXXXXXXX 4/8/71 TRUST
Dated as of June 14, 2000
STOCK PURCHASE AGREEMENT dated as of June 14, 2000 (this "Agreement")
between (i) THE A CONSULTING TEAM, INC., a New York corporation (the "Company"),
and (ii) EACH OF XXXXXXX X. XXXXXXXXX 12/18/80 TRUST AND XXXXXXX X. XXXXXXXXX
4/8/71 TRUST (collectively, the "Investors", and, individually, an "Investor").
The parties agree as follows:
Article I Authorization. The Company has authorized the issuance and sale, upon
the terms and set forth in this Agreement, of (i) the shares of the Company's
Common Stock, $.01 par value (the "Common Stock"), referred to below, (ii) the
Warrants referred to below in the form attached hereto as Exhibit A
(collectively, the "Warrants", and, individually, a "Warrant"), and (iii) the
shares of Common Stock issuable upon exercise of the Warrants (the "Warrant
Shares").
Article II Purchase and Sale of the Shares and the Warrants.
Section 2.1 Each Investor hereby purchases from the Company, and the
Company hereby issues and sells to such Investor, the shares of Common Stock
(collectively, the "Shares") and Warrants set forth for such Investor in
Schedule 2.1.1 (the "Sold Securities"), for the purchase price set forth for
such Investor in such Schedule (the "Purchase Price"). Each Investor agrees that
payment for the Purchase Price shall be made pursuant to a wire transfer of
immediately available funds in accordance with the wire transfer instructions
set forth in Schedule 2.1.2 hereto.
Section 2.2 Upon receipt of the Purchase Price, the Company shall prepare
for delivery to the Investors and will deliver within a reasonable time after
receipt of the Purchase Price (i) certified copies of all requisite corporate
actions taken by the Board of Directors of the Company to authorize the
execution and delivery of this Agreement and the Warrants by the Company and its
consummation of the transactions contemplated thereby, (ii) such other corporate
documents and other papers as the Investors or their counsel may reasonably
request, (iii) the certificates for the Shares, duly registered in the
Investors' names, against payment in full by the Investors of the Purchase Price
and (iv) the Warrants.
Section 2.3 Subject to and in accordance with the terms of the Warrants,
the Investors shall have the option, exercisable by notice from the Investors to
the Company at any time commencing 120 days after the date hereof but prior to
the second anniversary of the date hereof to purchase from the Company up to an
aggregate of 125,000 shares of Common Stock at a purchase price of $13.00 per
share, subject to antidilution adjustment.
Article III Representations and Warranties of Company.
The Company hereby represents and warrants to the Investors as follows
except as set forth in the schedules hereto with respect to specific Sections
below:
Section 3.1 Organization.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York and has all requisite corporate
power and authority to
own, lease and operate the assets used in its business, to carry on its
business as presently conducted and as proposed to be conducted, to enter into
the Documents (as hereinafter defined), to perform its obligations thereunder,
and to consummate the transactions contemplated by the Documents. "Documents"
means (a) this Agreement and (b) each Warrant. The Company has made available
to any Investor who has made a request therefor copies of its Certificate of
Incorporation, as amended (the "Certificate of Incorporation") and By-laws, as
amended; said copies are true, correct and complete and contain all amendments
through the date hereof.
Section 3.2 Qualification; Good Standing.
The Company is duly qualified to do business and is in good standing as a
foreign corporation in the States of New Jersey, Georgia, Illinois and
Connecticut. The Company is not required to be qualified in any other
jurisdiction where the failure to qualify would have a material adverse effect
on the Company. The Company is not and, upon consummation of the transactions
contemplated by the Documents will not be, an "investment company" or a company
controlled by an investment company within the meaning of the Investment Company
Act of 1940, as amended.
Section 3.3 Corporate Authorization; Enforceability, Etc.
The Company has taken all corporate action, including all action required
of its Board of Directors and stockholders, necessary to authorize its execution
and delivery of the Documents, its performance of its obligations thereunder,
and its consummation of the transactions contemplated thereby. The Documents
have been executed and delivered by an officer of the Company in accordance with
such authorization. Each Document constitutes a valid and binding obligation of
the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, and similar laws affecting
creditors' rights generally and to general principles of equity. The Shares have
been duly authorized and validly issued, and upon payment of the Purchase Price
will be fully paid and nonassessable and will be free of any liens or
encumbrances other than any liens or encumbrances created by any of the
Investors outside of this Agreement; provided, however, that the Shares are
subject to the restrictions on transfer under "blue-sky", state and/or Federal
securities laws and pursuant to this Agreement. The Warrant Shares have been
duly authorized and when issued in compliance with the provisions of the
Warrants, will be validly issued, fully paid and nonassessable, and will be free
of any liens or encumbrances other than any liens or encumbrances created by any
of the Investors outside of the Documents; provided, however, that the Warrant
Shares are subject to the restrictions on transfer under "blue-sky", state
and/or Federal securities laws and pursuant to this Agreement and the Warrants.
The Shares and the Warrant Shares shall not be subject to any preemptive rights
or rights of first offer or refusal except as set forth herein.
Section 3.4 No Conflict.
The execution and delivery by the Company of the Documents, its
consummation of the transactions contemplated thereby, and its compliance with
the provisions thereof, will not in any material respect (a) violate or conflict
with its Certificate of Incorporation or By-laws, (b) violate, conflict with, or
give rise to any right of termination, cancellation, rescission or acceleration
under any agreement, lease, security, license, permit, or instrument to which
the
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Company is a party, or to which it or any of its assets is subject, (c)
result in the imposition of any Encumbrance (as hereinafter defined) on any
asset of the Company, (d) violate or conflict with any Laws (as hereinafter
defined), or (e) require any consent, approval or other action of, notice to, or
filing with any entity or person (governmental or private), except for those
that have been obtained or made or will be made in a timely manner.
"Encumbrance" means any security interest, mortgage, lien, pledge, charge,
easement, reservation, restriction, or similar right of any third party; and
"Laws" means all laws, rules, regulations, ordinances, orders, judgments,
injunctions, decrees and other legislative, administrative or judicial
restrictions.
Section 3.5 Capitalization.
The authorized capital stock of the Company consists of 10,000,000 shares
of Common Stock, $.01 par value (the "Common Stock"), and 2,000,000 shares of
Preferred Stock, $.01 par value (the "Preferred Stock"), of which (A) no shares
of Preferred Stock are outstanding and (B) 6,949,281 shares of Common Stock are
issued and outstanding (assuming the issuance of 607,142 shares of Common Stock
pursuant to the exercise of certain outstanding warrants dated as of March 19,
2000). Except (i) as set forth in the preceding sentence, (ii) for an aggregate
of 900,000 shares of Common Stock reserved for issuance under the Company's
Stock Option Plan(s), (iii) for an aggregate of 1,000,000 shares of Common
Stock, subject to antidilution adjustment, issuable pursuant to outstanding
warrants dated as of March 19, 2000, (iv) for 178,570 shares of Common Stock
issuable, subject to antidilution adjustment, pursuant to a warrant dated as of
June 5, 2000 held by Eurocom Communications Ltd. ("Eurocom"), (v) for 142,857
shares of Common Stock issuable, subject to antidilution adjustment, pursuant to
a warrant dated as of June 5, 2000 held by Poalim Capital Markets Technologies,
Ltd. ("Poalim"), (vi) for 142,857 shares of Common Stock issuable, subject to
antidilution adjustment, pursuant to a warrant dated as of June 5, 2000 held by
Koonras Technologies Ltd. ("Koonras"), and (vii) for the shares of Common Stock
issued or issuable in accordance with this Agreement and the Warrants,
immediately after the date hereof, there will be no outstanding (1) securities
convertible into or exchangeable for shares of capital stock or other securities
of the Company, (2) options, warrants, or other rights to purchase or otherwise
acquire from the Company shares of such capital stock, or securities convertible
into or exchangeable for shares of such capital stock, or (3) contracts,
agreements or commitments relating to the issuance by the Company of any shares
of such capital stock, any such convertible or exchangeable securities, or any
such options, warrants or other rights. There are no voting trusts, voting
agreements, proxies or other agreements, instruments or understandings with
respect to the voting of the capital stock of the Company. Except (i) as set
forth herein, (ii) for the Company's obligation to register on Form S-3 an
aggregate of 1,999,997 shares of Common Stock held by certain parties and
issuable to certain parties pursuant to warrants held by such parties pursuant
to a certain Stock Purchase Agreement dated as of March 19, 2000 between the
Company and such parties, (iii) for the Company's obligation to register on Form
S-3 an aggregate of 357,140 shares of Common Stock issued and sold as of June 5,
2000 by the Company to Eurocom and issuable pursuant to a warrant issued and
sold as of June 5, 2000 by the Company to Eurocom pursuant to a Stock Purchase
Agreement dated as of June 5, 2000 between the Company and Eurocom, (iv) for the
Company's obligation to register on Form S-3 an aggregate of 285,714 shares of
Common Stock issued and sold as of June 5, 2000 by the Company to Poalim and
issuable pursuant to a warrant issued and sold as of June 5, 2000 by the Company
to Poalim pursuant to a Stock Purchase Agreement dated as of June 5, 2000
between the Company and Poalim, and (v) for the
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Company's obligation to register on Form S-3 an aggregate of 285,714 shares of
Common Stock issued and sold as of June 5, 2000 by the Company to Koonras and
issuable pursuant to a warrant issued and sold as of June 5, 2000 by the
Company to Koonras pursuant to a Stock Purchase Agreement dated as of June 5,
2000 between the Company and Koonras, there are no agreements or
understandings granting to any person or entity any right to cause the Company
to effect the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of any shares of its capital stock.
Section 3.6 Securities Laws.
Subject to and based in part upon the truth and accuracy of the
representations and warranties of the Investor contained herein, the offering
and sale of the Shares, the Warrants and the Warrant Shares contemplated hereby
are not subject to the registration requirements of the Securities Act pursuant
to an exemption thereunder and are, or following the date hereof will be, exempt
from registration or will be qualified as and when required under all applicable
state securities or "blue-sky" laws.
Section 3.7 Financial Statements; SEC Documents.
(a) Since March 31, 1999, the Company has filed with the
Securities and Exchange Commission (the "SEC") all forms, reports, schedules,
statements and other documents, and amendments thereto, required to be filed by
it through the date hereof, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (such forms, reports, schedules, statements,
amendments and other documents, to the extent filed and publicly available prior
to the date of this Agreement, other than preliminary filings, are referred to
as the "SEC Reports").
(b) The Company is subject to Section 13 of the Exchange Act
and is in compliance with its reporting obligations thereunder, satisfies the
current public information requirement of Rule 144(c)(1) under the Securities
Act (and is current in such reporting obligations) and is currently eligible to
file a registration statement on Form S-3 under the Securities Act.
(c) On the date of filing of each of the SEC Reports, such
Report, (a) did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading and (b) complied as to form in all material respects with
the applicable requirements of the Exchange Act.
(d) The financial statements for the Company filed with the
SEC in its Form 10-K for the year ended December 31, 1999 present fairly the
financial condition and the results of operations of the Company as of the dates
and for the periods indicated, and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis ("GAAP").
The unaudited financial statements for the Company filed with the SEC in its
Form 10-Q for the quarter ended March 31, 2000, as amended by the Company's
Amendment on Form 10-Q/A to its Form 10-Q for the quarter ended March 31, 2000,
present fairly the financial condition and the results of operations of the
Company as of the date and for the period
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indicated, and have been prepared in
accordance with GAAP (subject to year-end audit adjustments not in the aggregate
material and except for the absence of footnotes required by GAAP). The
statement of income included in the unaudited financial statements does not
contain any items of extraordinary or nonrecurring income except as expressly
stated therein, and the Company's balance sheet does not reflect any write-up or
revaluation increasing the book value of any assets.
(e) Since March 31, 2000, except as disclosed in Schedule
3.7.5 hereto, (a) the Company has conducted its business only in the ordinary
course, and has not incurred any (i) liabilities or obligations (except such as
were incurred in the ordinary course of the Company's business consistent with
past practice and which do not exceed $100,000 in the aggregate) and (ii)
indebtedness for money borrowed (whether absolute, accrued, contingent or
otherwise), (b) no event has occurred or circumstance or state of facts exist,
whether or not in the ordinary course of business, which has had or could
reasonably be expected to have a material adverse effect on the business,
operations, condition (financial or otherwise) or properties of the Company and
(c) the Company has not set aside, declared or paid any dividend or other
distribution to any of its securityholders.
(f) Except as disclosed in the SEC Reports or in Schedule
3.7.6 attached hereto, the Company is not subject to any actual or, to the
Company's knowledge, reasonably foreseeable potential material claims or
liabilities (whether absolute, accrued, contingent or otherwise), including,
without limitation, any tax, environmental, ERISA or employment material claims
or liabilities, or any other material debts, liabilities, obligations, claims or
potential material claims.
(g) All taxes, including, without limitation, income,
property, sales, use, franchise, added value, employees' income withholding and
social security taxes, imposed by the United States or by any foreign country or
by any state, municipality, subdivision or instrumentality of the United States
or of any foreign country, or by any other taxing authority, which are due or
payable by the Company, and all interest and penalties thereon, whether disputed
or not, have been paid in full, all tax returns required to be filed in
connection therewith have been accurately prepared and duly and timely filed and
all deposits required by law to be made by the Company with respect to
employees' withholding taxes have been duly made. The Company has not been
delinquent in the payment of any foreign or domestic tax, assessment or
governmental charge or deposit and has no tax deficiency or claim outstanding,
proposed or assessed against it, and there is no basis for any such deficiency
or claim.
Section 3.8 Subsidiaries; Real Property.
Except as set forth on Schedule 3.8, the Company does not own, directly or
indirectly, any capital stock or other proprietary interest in any other
corporation, partnership, or other entity. The Company does not own or hold,
directly or indirectly, any real property.
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Section 3.9 Compliance with Laws; Governmental Authorizations.
The Company is in compliance with all Laws, except for such noncompliance
as would not have a material adverse effect on its assets, business condition
(financial or otherwise), or property. The Company is not required to hold or
maintain any material governmental authorizations, licenses or permits in the
conduct of its business as presently conducted and as proposed to be conducted
(other than any thereof which it holds on the date hereof).
Section 3.10 Litigation.
Except as set forth on Schedule 3.10 hereto, there are no (a) actions,
suits, claims, investigations or other proceedings by or before any governmental
authority or arbitrator pending or, to the knowledge of the Company, threatened
against the Company, or (b) judgments, decrees, injunctions or orders of any
governmental authority or arbitrator against the Company.
Section 3.11 Brokers and Finders.
No person or entity acting on behalf or under the authority of the Company
is or will be entitled to any broker's, finder's, or similar fee or commission
in connection with the issuance of the Shares or the consummation of any of the
transactions contemplated by the Documents.
Section 3.12 Disclosure.
3.12.1 No representation or warranty of the Company contained in
this Agreement or the Schedules hereto, when read together,
contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under
which they were made, not misleading.
3.12.2 The representations and warranties contained in this
Agreement shall not be affected or deemed waived by reason of the
fact that Investor or its representatives knew or should have
known that any such representation or warranty is or might be
inaccurate in any respect.
3.12.3 Except as otherwise provided herein, the representations and
warranties in this Agreement shall survive for all claims made
prior to June 14, 2001.
Article IV Representations and Warranties of the Investor.
Each Investor represents and warrants severally and not jointly to the
Company as follows:
Section 4.1 Organization.
Such Investor is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has all requisite
corporate or partnership power and authority to enter into this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby.
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Section 4.2 Authorization.
Such Investor has taken all action necessary to authorize its execution
and delivery of this Agreement, its performance of its obligations hereunder,
and its consummation of the transactions contemplated hereby and this Agreement
has been executed and delivered by an officer or other authorized representative
of such Investor in accordance with such authorization. This Agreement
constitutes a valid and binding obligation of such Investor, enforceable in
accordance with its terms, subject to bankruptcy, reorganization, insolvency,
moratorium, and similar laws affecting creditors' rights generally and to
general principles of equity.
Section 4.3 Investment Representations and Warranties.
(a) The Shares, the Warrant and any Warrant Shares which are
acquired by such Investor hereunder will be acquired by it hereunder for its own
account, for investment and not with a view to the distribution thereof, nor
with any present intention of distributing the same. Such Investor further
understands the transfer restrictions on the Shares, the Warrant and the Warrant
Shares hereof in the event the Investor desires to transfer any of its Shares,
the Warrant or any Warrant Shares.
(b) Such Investor understands that, except as provided in
Section 5 hereof, any Shares and the Warrant acquired by it hereunder have not
been, and the Warrant Shares will not be, registered under the Securities Act or
registered or qualified under any state securities or "blue-sky" laws, by reason
of their issuance in a transaction exempt from the registration and/or
qualification requirements thereof, and that they must be held indefinitely
unless a subsequent disposition thereof is registered under the Securities Act
or registered or qualified under any applicable state securities or "blue-sky"
laws or is exempt from registration and/or qualification.
(c) Such Investor understands that the exemption from
registration afforded by Rule 144 (the provisions of which are known to the
Investor) promulgated under the Securities Act depends on the satisfaction of
various conditions and that, if applicable, Rule 144 may only afford the basis
for sales under certain circumstances and only in limited amounts.
(d) Such Investor acknowledges that such Investor has met with
representatives of the Company and has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of the
Shares, the Warrant and the Warrant Shares, and to obtain any additional
information which the Company possessed or could acquire without unreasonable
effort or expense, and has generally such knowledge and experience in business
and financial matters and with respect to such investments as to enable the
Investor to understand and evaluate the risks of such investment and form an
investment decision with respect thereto.
(e) Such Investor has no need for liquidity in its investment
in the Company, and is able to bear the economic risk of such investment for an
indefinite period and to afford a complete loss thereof.
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(f) Such Investor is an "accredited investor" as such term is
defined in Rule 501 (the provisions of which are known to the Investor)
promulgated under the Securities Act.
(g) Such Investor has not been formed solely for the purpose
of effecting its investment hereunder.
(h) Such Investor acknowledges that the securities laws and
state fiduciary laws impose certain obligations on persons who trade on or
divulge material non-public information of publicly traded companies.
Section 4.4 Brokers and Finders.
No person or entity acting on behalf or under the authority of such
Investor is or will be entitled to any broker's, finder's, or similar fee or
commission in connection with the transactions contemplated hereby.
Section 4.5 1934 Act Filings.
Such Investor will make all filings (if any) required to be made by such
Investor under Sections 13 and 16 of the Securities Exchange Act of 1934, as
amended, and all regulations thereunder, in connection with the transactions
contemplated hereby.
Article V Registration Rights.
Section 5.1 On or before August 1, 2000, the Company shall file a
registration statement on Form S-3 (or on such other form as may be available to
the Company) (the "Registration Statement") with the SEC for the public sale of
the Shares and the Warrant Shares. For the purpose of certainty, no Investor
shall be obligated to exercise any Warrant in order for the Registration
Statement to cover the Warrant Shares.
Section 5.2 The Company shall use its best efforts to cause such
Registration Statement to become effective not later than 50 days after the date
of filing, and to remain effective until the Warrant Shares are eligible for
sale under Rule 144(k) of the Securities Act. The Investors each acknowledge
that the occurrence of material events may require that the Registration
Statement be amended before further sales are permitted thereunder, in which
case the Company will promptly effect such amendment.
Section 5.3 The Registration Statement shall be accompanied by blue
sky clearances in such states as the Investor may reasonably request, provided,
however, the Company shall not be required to execute any general consent to
service of process in order to obtain such blue sky clearance, except in a
jurisdiction where the Company is already subject to such process.
Section 5.4 The Company shall pay all expenses associated with the
registration of the Shares and the Warrant Shares including reasonable fees of
one law firm which represents the Investors and all due diligence costs, up to
an amount not in excess of $15,000 for the aggregate of such fees and costs, but
the Company shall not pay the Investors'
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brokerage commissions and underwriting discounts or the expense of any advisors
retained by the Investors (other than one law firm as provided above).
Section 5.5 The Company shall supply to each Investor a reasonable
number of copies of all registration materials and prospectuses relating to the
registration of the Shares and the Warrant Shares. The Company and each Investor
shall execute and deliver to each other indemnity agreements that are
conventional in transactions of this type. Each Investor shall cooperate with
the Company in the preparation and filing of the Registration Statement and
appropriate amendments thereto.
Section 5.6 Notwithstanding the effectiveness of any Registration
Statement, no Investor will prior to October 1, 2000 sell any of the Company's
stock covered by the Registration Statement in a public offering or on any
exchange which such stock is traded.
Section 5.7 The Company shall at all times file such public reports
as shall be required to satisfy the current public information requirements
contained in Rule 144 of the Securities Act, shall not hinder or delay any sales
under such Rule, or permit or suffer its counsel to hinder or delay any such
sales. The Company shall pay the fees and expenses of its counsel in connection
with any such sales.
Section 5.8 Time is of the essence for purposes of this Section 5.
Article VI Legend.
The Shares and any Warrant Shares issued shall bear the legend set forth
on Exhibit B hereof (the "Legend"). The Company will promptly, upon request and
receipt from each Investor of reasonable and customary written representations,
opinions and brokers letters for sales under Rule 144, remove the Legend (i) in
connection with any transfer of securities that is registered under the
Securities Act or made in compliance with Rule 144 or (ii) when it is otherwise
no longer required by applicable provisions of the Securities Act.
Article VII Right of First Offer
(a) If any Investor proposes to sell (which term shall include any
disposition) any Shares or any Warrant Shares (the "Securities") in a Covered
Sale (as hereinafter defined), such Investor will give written notice to the
Company (the "Transfer Notice") of the number of Securities such Investor
proposes to sell in Covered Sales during the 90-day period (the "Notice Period")
commencing on the date of such Investor's delivery of the Transfer Notice (the
"Delivery Date") and the price per share at which such Investor proposes to sell
such Securities. The Company shall have the right, during the 10-day period
commencing on the Delivery Date, to purchase all, but not less than all, of the
Securities described in the Transfer Notice at the price per share set forth in
the Transfer Notice by delivery to such Investor of (i) the Company's written
irrevocable agreement to purchase all of such Securities at such price per share
and (ii) payment in immediately available funds of the aggregate purchase price
for such Securities to such account or accounts as shall be designated by such
Investor. The right described in the preceding sentence shall terminate if the
agreement and purchase price described in the preceding sentence are not
received by such Investor prior to 4:00 p.m. New York City time on the 10th day
immediately following the Delivery Date. If the Company does not exercise its
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right as hereinabove set forth within such 10-day period, such Investor may sell
all or any portion of the Securities described in the Transfer Notice to any
purchaser for a price per share equal to or in excess of the price set forth in
the Transfer Notice. If, at the end of the Notice Period, such Investor has not
completed such sales, such Investor shall no longer be permitted to sell such
Securities in a Covered Transaction without again complying with all of the
provisions of this Section. Notwithstanding the foregoing, such Investor may at
any time amend, supplement or revise any information set forth in any previously
delivered Transfer Notice by delivering an amended Transfer Notice to the
Company, in which event the 10- and 90- day periods described above shall
recommence from the date of Investor's delivery of such amended Transfer Notice
to the Company.
(b) As used in this Section, "Covered Sale" shall mean any sale of
Securities by such Investor other than (i) a sale to an Affiliate of the
Investor or (ii) a transfer that is registered under the Securities Act or
effected pursuant to Rule 144 under the Securities Act.
(c) Notwithstanding anything in the Documents, the provisions of this
Section shall terminate and be of no further effect on the second anniversary of
the date hereof.
Article VIII Indemnification.
Section 8.1 The Company shall indemnify, defend and hold each
Investor harmless against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including reasonable legal fees
and expenses), relating to or arising from the untruth, inaccuracy or breach of
any of the representations, warranties or agreements of the Company contained in
the Documents.
Section 8.2 Each Investor, severally and not jointly, shall
indemnify and hold the Company harmless against all liability, loss or damage,
together with all reasonable costs and expenses related thereto (including
reasonable legal fees and expenses), relating to or arising from the untruth,
inaccuracy or breach of any of the representations, warranties or agreements of
such Investor contained in the Documents.
Article IX Fees and Expenses.
Each party hereto shall bear its own costs and expenses incurred on its
behalf in connection with the preparation, negotiation, execution, and delivery
of the Documents and the preparation for and consummation of the transactions
contemplated thereby and therein; provided, however, that the Company shall pay
the reasonable fees and expenses of one law firm representing the Investors up
to an amount not in excess of $15,000.
Article X Entire Agreement.
This Agreement (including the Exhibits and Schedules hereto) contain the
entire understanding of the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings among the parties with
respect to such subject matter, including, without limitation, any oral or
written communications made by an officer, employee, agent or affiliate of the
Company in connection therewith.
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Article XI Notices.
All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or if sent by nationally-recognized overnight
courier, by telecopy, or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
if to the Company:
The A Consulting Team, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx XxxXxx, Chairman & Chief Executive Officer
if to either of the Investors:
c/o Xxxxxxx X. Xxxxxxxxx
000 Xxxx Xxxxxx , Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Tel: (000) 000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of an
internationally-recognized overnight courier, on the next business day after the
date when sent, (c) in the case of telecopy transmission with confirmation of
its receipt, and (d) in the case of mailing, on the third business day following
that on which the piece of mail containing such communication is posted.
Article XII Amendments.
The terms and provisions of this Agreement may only be modified or
amended, or the performance thereof waived, pursuant to an instrument signed by
(a) the Company and each Investor or (b) the party against whom enforcement of
such modification, amendment or waiver is sought.
Article XIII Counterparts.
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
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Article XIV Headings.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Article XV Governing Law.
This Agreement shall be governed by and construed in accordance with the
domestic laws of the State of New York, without giving effect to any law or rule
that would cause the laws of any jurisdiction other than the State of New York
to be applied.
Article XVI Successors and Assigns.
Except as otherwise provided herein, the provisions hereof shall inure to
the benefit of, and be binding upon, the successors and permitted assigns of the
parties hereto. No assignment of the Documents (or delegation of the Company's
obligations thereunder) may be made by the Company at any time, whether or not
by operation of law, without the Investors' prior written consent; provided,
however, that this sentence shall not be interpreted to require a separate
consent of the holders of the Warrants in connection with any acquisition,
business combination, or similar transaction where all or substantially all of
the assets or securities of the Company are acquired by a third party. No
Investor may assign its rights or delegate its duties hereunder without the
Company's prior consent, except that any Investor may assign any or all of its
rights under this Agreement to an Affiliate of such Investor without the
Company's consent provided that such Affiliate delivers to the Company an
agreement reasonably satisfactory to the Company in which such Affiliate assumes
all of the Investor's payment and other obligations under this Agreement and
makes the representations made by the Investor hereunder.
Article XVII Delays or Omissions.
Except as expressly provided herein, no delay or omission to exercise any
right, power or remedy accruing to the Company or such Investor upon any breach
or default of any party under any Document shall impair any such right, power or
remedy of the Company or such Investor 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 the Company or such Investor of any breach
or default under any Document, or any waiver on the part of any such party of
any provisions or conditions of any Document, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under the Documents or by law or otherwise afforded to the
Company or such Investor, shall be cumulative and not alternative.
Article XVIII Stock Certificates.
Upon surrender of any certificate representing Securities for exchange at
the office of the Company, the Company at its expense will cause to be issued in
exchange therefor new certificates in such denomination or denominations as may
be requested for the same aggregate
12
number of Securities represented by the certificate so surrendered and
registered as such holder may request. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
any certificate evidencing any of the Securities and (in case of loss, theft or
destruction) of indemnity reasonably satisfactory to it, and upon reimbursement
to the Company of all reasonable expenses incidental thereto, and upon surrender
and cancellation of such certificate, if mutilated, the Company will make and
deliver in lieu of such certificate a new certificate of like tenor and for the
number of Securities evidenced by such certificate which remain outstanding.
Article XIX Specific Enforcement.
The Company acknowledges and agrees that irreparable damage would be
suffered by the Investors in the event that any of the Company's covenants
contained in the Documents were not performed in accordance with their specific
terms or were otherwise breached, and that money damages are an inadequate
remedy for breach thereof because of the difficulty of ascertaining and
quantifying the amount of damage that will be suffered by the Investors in the
event that such covenants are not performed in accordance with their terms or
are otherwise breached. It is accordingly agreed that the Investors shall be
entitled to an injunction or injunctions to prevent breaches of the covenants
referred to in the immediately preceding sentence and to enforce specifically
the terms and provisions of the Documents in any court having jurisdiction, this
being in addition to any other rights and remedies to which the Investors may be
entitled at law or equity.
[Remainder of page intentionally left blank]
13
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
on the date first above written.
THE A CONSULTING TEAM, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CFO
XXXXXXX X. XXXXXXXXX 12/18/80 TRUST
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
XXXXXXX X. XXXXXXXXX 4/8/71 TRUST
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
Schedule 2.1.1
-----------------------------------------------------------------------------
Investor Purchase Shares Warrant Shares Warrant
Price Exercise Price
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx $700,000 87,500 87,500 $1,137,500
12/18/80 Trust
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx $300,000 37,500 37,500 $487,500
4/8/71 Trust
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Total $1,000,000 125,000 125,000 $1,625,000
-----------------------------------------------------------------------------
Schedule 2.1.2
The A Consulting Team, Inc.
Citibank N.A.
Branch #00
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
ABA#000000000
Account #00000000
Schedule 3.7.5
The Company has a credit line from Citibank N.A., of which $1,500,000 was
outstanding on the date hereof.
Schedule 3.7.6
None
Schedule 3.8
T3 Media, Inc.
XxxxxXX.xxx
Schedule 3.10
Litigation
None
EXHIBIT A
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SUCH ACT.
June 14, 2000
THE A CONSULTING TEAM, INC.
WARRANT
THIS CERTIFIES that, for value received, [XXXXXXX X. XXXXXXXXX
12/18/80 TRUST/XXXXXXX X. XXXXXXXXX 4/8/71 TRUST], or assigns, is entitled to
subscribe for and purchase from THE A CONSULTING TEAM, INC., a New York
corporation (the "Company"), up to [87,500/37,500] shares (the "Warrant Shares")
of Common Stock, $.01 par value (the "Common Stock") of the Company at a
purchase price of $13.00 per share (the "Warrant Price") at any time or times
commencing 120 days after the date hereof and ending on the second anniversary
of the date of this Warrant (the "Exercise Period"). The shares of capital stock
of the Company issuable upon exercise or exchange of this Warrant are sometimes
hereinafter referred to as the "Warrant Shares," and, in connection therewith,
all references herein to Warrant Shares shall mean Common Stock.
1. Exercise of Warrant.
The rights represented by this Warrant may be exercised by the
holder hereof, in whole or in part, at any time and from time to time during the
Exercise Period, by the surrender of this Warrant (together with the Form of
Exercise attached hereto duly executed) at the office of the Company, or at such
other agency or office of the Company in the United States of America as the
Company may designate by notice in writing to the holder hereof at the address
of such holder appearing on the books of the Company, and by payment to the
Company of the Warrant Price in cash, by certified check, by wire transfer or by
bank draft payable to the order of the Company for each share being purchased.
In the event of the exercise of the rights represented by this Warrant, a
certificate or certificates for the Warrant Shares so purchased, registered in
the name of the holder, and if such Warrant Exercise shall not have been for all
Warrant Shares, a new Warrant, registered in the name of the holder hereof, of
like tenor to this Warrant, shall be delivered to the holder hereof within a
reasonable time, not exceeding ten days, after the rights represented by this
Warrant shall have been so exercised. The person in whose name any certificate
for Warrant Shares is issued upon exercise of this Warrant shall for all
purposes be deemed to have become the holder of record of such shares on the
date on which the Warrant was surrendered and payment of the Warrant Price was
made, irrespective of the date of delivery of such certificate, except that, if
the date of such surrender and payment is a date when
A-1
the stock transfer books of the Company are closed, such person shall be deemed
to have become the holder of such shares at the close of business on the next
succeeding date on which the stock transfer books are open.
2. Adjustment of Warrant Price.
If, at any time during the Exercise Period, the number of
outstanding shares of Common Stock is (i) increased by a stock dividend payable
in shares of such class of capital stock or by a subdivision or split-up of
shares of such class of capital stock, or (ii) decreased by a combination of
shares of such class of capital stock, then, following the record date fixed for
the determination of holders of such class of capital stock entitled to receive
the benefits of such stock dividend, subdivision, split-up, or combination, the
Warrant Price shall be adjusted to a new amount equal to the product of (A) the
Warrant Price in effect on such record date and (B) the quotient obtained by
dividing (x) the number of shares of such class of capital stock outstanding on
such record date (without giving effect to the event referred to in the
foregoing clause (i) or (ii)), by (y) the number of shares of such class of
capital stock which would be outstanding immediately after the event referred to
in the foregoing clause (i) or (ii), if such event had occurred immediately
following such record date.
3. Adjustment of Warrant Shares.
Upon each adjustment of the Warrant Price as provided in Section 2,
the holder hereof shall thereafter be entitled to subscribe for and purchase, at
the Warrant Price resulting from such adjustment, the number of Warrant Shares
equal to the product of (i) the number of Warrant Shares purchaseable prior to
such adjustment and (ii) the quotient obtained by dividing (A) the Warrant Price
existing prior to such adjustment by (B) the new Warrant Price resulting from
such adjustment. No fractional shares of capital stock of the Company shall be
issued as a result of any exercise or conversion of the Warrant. If a fractional
share interest arises upon any exercise or conversion of the Warrant, the
Company shall eliminate such fractional share interest by paying the holder an
amount computed by multiplying the fractional interest by the Fair Market Value
of a full share. For purposes of this Section 3, "Fair Market Value" of the
Warrant Shares shall mean:
(i) the closing price of shares of the Company's Common Stock
quoted on the Nasdaq National Market or the closing price quoted on
any exchange on which such shares are listed, whichever is
applicable, on the trading day immediately preceding the date of
delivery of the notice pursuant to Section 1, or
(ii) if the Common Stock is not listed on the Nasdaq National
Market or on an exchange, the fair market value of one share of
Common Stock as determined in good faith by the Company's Board of
Directors.
4. Covenants as to Stock.
The Company covenants and agrees that all shares of Common Stock
which may be issued upon the exercise of the rights represented by this Warrant
will, upon receipt by the
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Company of the Warrant Price therefor and upon issuance, be duly authorized,
validly issued, fully paid and non-assessable and free from all taxes, liens
and charges with respect to the issue thereof. The Company shall pay all taxes
and any and all United States federal, state and local taxes and other charges
that may be payable in connection with the preparation, issuance and delivery
of the certificates representing Warrant Shares hereunder. The Company further
covenants and agrees that the Company will from time to time take all such
action as may be requisite to assure that the stated or par value per share of
the Common Stock is at all times equal to or less than the then effective
Warrant Price per share of the Common Stock issuable upon exercise of this
Warrant. The Company further covenants and agrees that the Company will at all
times have authorized and reserved, free from preemptive rights, a sufficient
number of shares of its Common Stock to provide for the exercise of the rights
represented by this Warrant. The Company further covenants and agrees that if
any shares of capital stock to be reserved for the purpose of the issuance of
shares of capital stock upon the exercise of this Warrant require registration
with or approval of any governmental authority under any Federal or state law
before such shares may be validly issued or delivered upon exercise, then the
Company will in good faith and expeditiously as possible endeavor to secure
such registration or approval, as the case may be. If and so long as any
capital stock of the Company is listed on any national securities or the
NASDAQ Stock Market, the Company will, if permitted by the rules of such
exchange, list and keep listed on such exchange, upon official notice of
issuance, all shares of such capital stock issuable upon exercise of this
Warrant.
5. No Shareholder Rights.
This Warrant shall not entitle the holder hereof to any voting
rights or other rights as a shareholder of the Company.
6. Restrictions on Transfer; Etc.
(i) The Company may deem and treat the person in whose name
this Warrant is registered as the holder and owner hereof for all purposes and
shall not be affected by any notice to the contrary. The holder of this Warrant
by acceptance hereof agrees that the transfer of the Warrant Shares is subject
to the provisions set forth in this Section 6 and the conditions, including a
right of first offer, specified in the Stock Purchase Agreement (as defined
herein). The Warrant Shares issuable upon exercise of this Warrant shall be
entitled to all rights and benefits accorded thereto in the Stock Purchase
Agreement between the Company and the other parties thereto of even date
herewith (the "Stock Purchase Agreement"), and the applicable provisions of the
Stock Purchase Agreement are hereby incorporated herein by reference.
(ii) Each certificate representing Warrant Shares shall
(unless otherwise permitted by the provisions of paragraph (c) and (d) below) be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE
A-3
OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH
ACT. ADDITIONALLY, UNTIL JUNE 14, 2002, THE TRANSFER OF THESE
SECURITIES IS SUBJECT TO THE CONDITIONS, INCLUDING A RIGHT OF FIRST
OFFER, SPECIFIED IN THE STOCK PURCHASE AGREEMENT DATED AS OF JUNE
14, 2000, BETWEEN THE A CONSULTING TEAM, INC. AND THE OTHER PARTIES
THERETO, AND NO TRANSFER OF THESE SECURITIES SHALL BE VALID OR
EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. UPON THE
FULFILLMENT OF CERTAIN OF SUCH CONDITIONS, THE A CONSULTING TEAM,
INC. HAS AGREED TO DELIVER TO THE HOLDER HEREOF A NEW CERTIFICATE,
NOT BEARING THIS LEGEND, FOR THE SECURITIES REPRESENTED HEREBY
REGISTERED IN THE NAME OF SUCH HOLDER. COPIES OF SUCH AGREEMENT MAY
BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE A CONSULTING
TEAM, INC."
(iii) The holder of any Warrant Shares by acceptance thereof
agrees, prior to any transfer of any Warrant Shares, to give written notice to
the Company of such holder's intention to effect such transfer and to comply in
all other respects with the provisions of this Section and Section 7 of the
Stock Purchase Agreement. The holder delivering such notice concurrently shall
deliver a written opinion, addressed to the Company, of counsel for such holder,
stating that in the opinion of such counsel (which opinion and counsel shall be
reasonably satisfactory to the Company) such proposed transfer does not involve
a transaction requiring registration or qualification of such Warrant Shares
under the Securities Act or the securities or "blue sky" laws of any state of
the United States, whereupon, subject to Section 7 of the Stock Purchase
Agreement, such holder of Warrant Shares shall be entitled to transfer such
Warrant Shares in accordance with the terms of the notice delivered to the
Company, so long as the Company does not reasonably object to such opinion
within three business days after delivery thereof. Each certificate or other
instrument evidencing the securities issued upon the transfer of any Warrant
Shares (and each certificate or other instrument evidencing any untransferred
balance of such Warrant Shares) shall bear the legend set forth in paragraph (b)
above unless (i) in the opinion of counsel to the Company registration of any
future transfer is not required by the applicable provisions of the Securities
Act or (ii) the Company shall have waived the requirement of such legends or a
legend is no longer required by applicable provisions of the Securities Act.
(iv) Notwithstanding the foregoing provisions of this Section,
the restrictions imposed by this Section upon the transferability of the Warrant
Shares shall cease and terminate when (i) any such Warrant Shares are sold or
otherwise disposed of (A) pursuant to an effective registration statement under
the Securities Act or (B) in a transaction contemplated by paragraph (c) above
which does not require that the Warrant Shares so transferred bear the legend
set forth in paragraph (b) hereof, or (ii) the holder of such Warrant Shares has
met the requirements for transfer of such Warrant Shares under Rule 144(k) under
the Securities Act. Whenever the restrictions imposed by this Section shall
terminate, the holder of any Warrant Shares as to which such restrictions have
terminated shall be entitled to receive from the Company, without expense, a new
certificate not bearing the restrictive legend set forth
A-4
in paragraph (b) above and not containing any other reference to the
restrictions imposed by this Section.
7. Amendment.
The terms and provisions of this Warrant may not be modified or
amended, except with the written consent of the Company and the holders of a
majority of Warrant Shares issuable upon exercise hereof.
8. Reorganizations, Etc.
In case, at any time on or prior to the end of the Exercise Period,
of any capital reorganization, of any reclassification of the stock of the
Company (other than a change in par value or from par value to no par value or
from no par value to par value or as a result of a stock dividend or
subdivision, split-up or combination of shares), or the consolidation or merger
of the Company with or into another corporation (other than a consolidation or
merger in which the Company is the continuing operation and which does not
result in any change in the Warrant Shares or in any distribution of any
securities, evidences of indebtedness, rights, cash or other property to
security holders of the Company) or of the sale of all or substantially all the
properties and assets of the Company to any other corporation, this Warrant
shall, after such reorganization, reclassification, consolidation, merger or
sale, be exercisable for the kind and number of shares of stock or other
securities or property of the Company or of the corporation resulting from such
consolidation or surviving such merger or to which such properties and assets
shall have been sold to which such holder would have been entitled if he had
held the Warrant Shares issuable upon the exercise hereof immediately prior to
such reorganization, reclassification, consolidation, merger or sale. In any
such case, the Company shall, as condition precedent to such transaction,
execute a new Warrant or cause such successor or purchasing corporation, as the
case may be, to execute a new Warrant, providing that the holder of this Warrant
shall have the right to exercise such new Warrant during the remainder of the
Exercise Period and upon such exercise to receive, in lieu of each share of
Common Stock theretofore issuable upon exercise of this Warrant, the kind and
amount of shares of stock, other securities, money and property issuable or
payable, as the case may be, upon such merger, consolidation, sale of assets or
other change to a holder of one share of Common Stock. Such new Warrant shall
provide for adjustments that shall be as nearly equivalent as may be practicable
to the adjustments provided for in this Warrant. The provisions of this Section
8 shall similarly apply to successive mergers, consolidations, sale of assets
and other changes and transfers.
9. Lost, Stolen, Mutilated or Destroyed Warrant.
If this Warrant is lost, stolen, mutilated or destroyed, the Company
shall, on such terms as to indemnity or otherwise as it may reasonably impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
A-5
10. Notice of Adjustments.
The Company shall promptly give written notice of each change,
adjustment or readjustment of the Warrant Price or the number of shares of
Common Stock or other securities issuable upon exercise of this Warrant, by
first class mail, postage prepaid, to the registered holder of this Warrant at
the holder's address for notices in the Stock Purchase Agreement. This notice
shall state that change, adjustment or readjustment and show in reasonable
detail the facts on which that adjustment or readjustment is based.
If at any time (a) the Company shall take a record of the holders of
any class of capital stock of the Company for the purpose of entitling them to
receive a dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any class or
any other securities or property, or to receive any other right, or (b) there
shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with, or any sale, transfer or other disposition of all or
substantially all the property, assets or business of the Company to, another
entity or person, or (c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in any one or more of such
cases, the Company shall give to the holder of this Warrant (i) at least thirty
(30) days' prior written notice of the record date for such dividend,
distribution or right or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, and (ii) in the case of any
such reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least thirty (30) days'
prior written notice of the date when the same shall take place. Such notice
shall also specify all material terms of such dividend, distribution, right,
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up. The Company shall not by
any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but shall at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of the holder hereof against impairment.
11. Governmental Filings and Approvals. Notwithstanding any provision herein to
the contrary, the Company shall not be obligated to issue any Common Stock under
this Warrant until all required governmental filings and approvals relating to
such Common Stock or the issuance thereof, if any, have been made and obtained
by the Company and the holder of this Warrant under or in respect of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976. The Company and the holder
of this Warrant will cooperate with each other in connection with the making of
any such filing in a prompt manner, and the Company will pay all filing fees and
reasonable expenses (including, the reasonable fees of holder's counsel) in
connection therewith.
12. Transfer and Assignment.
Subject to the restrictions and conditions set forth herein and in the
Stock Purchase Agreement, this Warrant and all rights hereunder are
transferable, in whole or in part, on the
A-6
books of the Company to be maintained
for such purposes, upon surrender of this Warrant at the office of the Company,
accompanied by a written assignment duly executed by the Holder hereof and each
transferee in substantially the form attached hereto, indicating the number of
Warrants being transferred, the name, address and tax identification number of
each transferee and containing investment representations and warranties by the
transferee substantially identical to those set forth in the Stock Purchase
Agreement. Upon any such delivery, the Company shall execute and deliver to the
Holder or the transferee(s) or both (as the case may be) new warrants (in
substantially the form of this Warrant) in the appropriate denominations, and
this Warrant shall thereupon be canceled.
13. Miscellaneous.
The provisions of this Warrant shall be construed and shall be given
effect in all respects as if it had been issued and delivered by the Company on
the date of this Warrant. This Warrant shall be binding upon any successors or
assigns of the Company and shall inure to the benefit of all transferees and
assigns of the holder. This Warrant shall constitute a contract under the laws
of the State of New York and for all purposes shall be construed in accordance
with and governed by the laws of said state, without regard to New York
conflicts of law.
[Remainder of page intentionally left blank]
A-7
IN WITNESS WHEREOF, the undersigned has caused this Warrant to be
executed by its duly authorized officer on the date first above written.
THE A CONSULTING TEAM, INC.
By: ______________________________
Name:
Title:
A-8
Form of Exercise
------------------------------------------------------------------------------
[To be signed upon exercise of Warrant]
The undersigned, the holder of the within Warrants, hereby irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _________ shares of Common Stock of THE A CONSULTING TEAM, INC., and
herewith makes payment of $_________ therefor, and requests that the
certificates for such shares be issued in the name of and delivered to,
_________________________________, whose address is
_____________________________.
Dated:
[Name of Holder]
By:
------------------------------
Name:
Title:
---------------------------------
(Address)
A-9
Form of Assignment
------------------------------------------------------------------------------
[To be signed only upon transfer of Warrant]
For value received, ____________________ (the "Transferor") hereby
sells, assigns and transfers unto _________________ (the "Transferee") the right
represented by the within Warrant to purchase _______ shares of Common Stock of
THE A CONSULTING TEAM, INC., to which the within Warrant relates, and appoints
_______________ Attorney to transfer such right on the books of THE A CONSULTING
TEAM, INC., with full power of substitution in the premises. The Transferee
hereby confirms and agrees to, for the benefit of the Transferor and The A
Consulting Team, Inc., the accuracy of the representations set forth on Exhibit
A hereto.
Dated: [Name of Transferor]
By:____________________________
Name:
Title:
[Name of Transferee]
By:____________________________
Name:
Title:
A-10
EXHIBIT A
Investment Representations and Warranties.
The Transferee hereby confirms and agrees to, for the benefit of the
Transferor and The A Consulting Team, Inc., the accuracy of the following
representations and warranties.
1. The Warrant and any shares of common stock of The A Consulting Team,
Inc. issuable upon exercise thereof (the "Warrant Shares") which are acquired by
the Transferee will be acquired by it for its own account, for investment and
not with a view to the distribution thereof, nor with any present intention of
distributing the same. The Transferee further understands and agrees to the
transfer restrictions on the Warrant and the Warrant Shares set forth in the
Stock Purchase Agreement dated as of June 14, 2000 between The A Consulting
Team, Inc. and the Transferor (the "Stock Purchase Agreement") in the event the
Transferee desires to transfer the Warrant or any Warrant Shares.
2. The Transferee understands that, except as provided in Section 5 of the
Stock Purchase Agreement, the Warrant acquired by it has not been, and the
Warrant Shares will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act") or registered or qualified under any state
securities or "blue-sky" laws, by reason of their issuance in a transaction
exempt from the registration and/or qualification requirements thereof, and that
they must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or registered or qualified under any
applicable state securities or "blue-sky" laws or is exempt from registration
and/or qualification.
3. The Transferee understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to the Transferee)
promulgated under the Securities Act depends on the satisfaction of various
conditions and that, if applicable, Rule 144 may only afford the basis for sales
under certain circumstances and only in limited amounts.
4. The Transferee acknowledges that it has met with representatives of The
A Consulting Team, Inc. and has had the opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of the Warrant and
the Warrant Shares, and to obtain any additional information which The A
Consulting Team, Inc. possessed or could acquire without unreasonable effort or
expense, and has generally such knowledge and experience in business and
financial matters and with respect to such investments as to enable the
Transferee to understand and evaluate the risks of such investment and form an
investment decision with respect thereto.
5. The Transferee has no need for liquidity in its investment in The
A Consulting Team, Inc., and is able to bear the economic risk of such
investment for an indefinite period and to afford a complete loss thereof.
6. The Transferee is an "accredited investor" as such term is defined in
Rule 501 (the provisions of which are known to the Transferee) promulgated under
the Securities Act.
7. The Transferee has not been formed solely for the purpose of
effecting its investment hereunder.
8. The Transferee acknowledges that the securities laws and state
fiduciary laws impose certain obligations on persons who trade on or divulge
material non-public information of publicly traded companies.
A-11
EXHIBIT B
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT. ADDITIONALLY, UNTIL JUNE
14, 2002, THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE CONDITIONS,
INCLUDING A RIGHT OF FIRST OFFER, SPECIFIED IN THE STOCK PURCHASE AGREEMENT
DATED AS OF JUNE 14, 2000, BETWEEN THE A CONSULTING TEAM, INC. AND THE OTHER
PARTIES THERETO, AND NO TRANSFER OF THESE SECURITIES SHALL BE VALID OR EFFECTIVE
UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. UPON THE FULFILLMENT OF CERTAIN OF
SUCH CONDITIONS, THE A CONSULTING TEAM, INC. HAS AGREED TO DELIVER TO THE HOLDER
HEREOF A NEW CERTIFICATE, NOT BEARING THIS LEGEND, FOR THE SECURITIES
REPRESENTED HEREBY REGISTERED IN THE NAME OF SUCH HOLDER. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE A CONSULTING TEAM, INC."
