PCMT CORPORATION REGULATION S SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION SECTION 1
To:Β Β Β Β PCMT
CORPORATION
PCMT
CORPORATION
REGULATION
S SUBSCRIPTION AGREEMENT AND INVESTMENT REPRESENTATION
SECTION
1
1.1Β Subscription.
(a)
The
undersigned, intending to be legally bound, hereby irrevocably subscribes for
and agrees to purchase ____________ Units (hereafter defined) to be issued
by
PCMT Corporation, a Delaware corporation (the "Company") in an offshore
transaction negotiated outside the U.S. and to be consummated and closed outside
the U.S. The Company is directly offering for sale 16,666,666 Units for an
aggregate gross proceeds of $2,500,000. A βUnitβ shall consist of the following:
Β |
(1)
|
one
share of Common Stock (a βPurchased
Shareβ);
|
Β |
(2)
|
one
warrant, as further described in the Class A Warrant Agreement attached
hereto as Exhibit A, entitling the undersigned to purchase one share
of
Common Stock at an exercise price of $0.25 per share, expiring on
one year
from the date of this Subscription Agreement (a βClass A Warrantβ); and
|
Β |
(3)
|
one
Class B Warrant, as further described in the Class B Warrant Agreement
attached hereto as Exhibit B, entitling the undersigned to purchase
one
share of Common Stock at an exercise price of $0.375 per share, expiring
three years from the date of this Subscription Agreement (a βClass B
Warrant, and together with the Class A Warrant, the βWarrantsβ).
|
Β |
(4)
|
The
undersigned understands that the Company is implementing a 1 to 10
forward
stock split of its issued and outstanding shares of common stock,
which
will be effective on November 26, 2007, and agrees that in the event
the
sale of the Units subscribed for by the undersigned is consummated
prior
to the effective date of forward stock split, the securities underlying
the Units will not be issued until after November 26, 2007. Accordingly,
the undersigned agreed and acknowledged that the amount of Purchased
Shares and Warrant Shares being purchased by the undersigned are
post
split amounts.
|
Β
(b)
For
purposes of this Subscription Agreement:
Β |
(1)
|
βCommon
Stockβ means the common stock of the Company, par value $0.0001 per share.
|
Β |
(2)
|
βSecuritiesβ
means the Purchased Shares, the Warrants and the Warrant Shares.
|
Β
Β
Β
Β
Β
Β |
(3)
|
βWarrant
Sharesβ means the shares of Common Stock issuable upon due exercise of the
Warrants.
|
1.2Β Purchase
of Units.
The
undersigned understands and acknowledges that the purchase price to be remitted
to the Company in exchange for the Units shall be ____________ dollars ($______)
or $0.15 per Unit. Simultaneous with the execution and delivery of this
Agreement, including the Investor Questionnaire annexed hereto, the undersigned
shall deliver to the Company the aforementioned purchase price by wire transfer
of immediately available funds. Wire instructions are attached hereto as
Appendix A.
1.3Β Acceptance
or Rejection.
(a)Β The
undersigned understands and agrees that the Company reserves the right to reject
this subscription for the Units if, in its reasonable judgment, it deems such
action in the best interest of the Company, at any time prior to the Closing,
notwithstanding prior receipt by the undersigned of notice of acceptance of
the
undersigned's subscription.
(b)Β The
undersigned understands and agrees that its subscription for the Units is
irrevocable.
(c)Β In
the
event the sale of the Units subscribed for by the undersigned is not consummated
by the Company for any reason (in which event this Subscription Agreement shall
be deemed to be rejected), this Subscription Agreement and any other agreement
entered into between the undersigned and the Company relating to this
subscription shall thereafter have no force or effect and the Company shall
promptly return or cause to be returned to the undersigned the purchase price
remitted to the Company by the undersigned, without interest thereon or
deduction therefrom, in exchange for the Units.
SECTION
2
2.1Β Closing
The
closing (the "Closing") of the purchase and sale of the Units, shall occur
simultaneously with the acceptance by the Company of the undersigned's
subscription, as evidenced by the Company's execution of this Subscription
Agreement.
SECTION
3
3.1Β Investor
Representations and Warranties.
The
undersigned hereby acknowledges, represents and warrants to, and agrees with,
the Company and its affiliates as follows:
(a)Β The
undersigned is acquiring the Securities for his own account as principal, not
as
a nominee or agent, for investment purposes only, and not with a view to, or
for, resale, distribution or fractionalization thereof in whole or in part
and
no other person has a direct or indirect beneficial interest in such Securities
or any portion thereof. Further, the undersigned does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or
grant
participations to such person or to any third person, with respect to the
Securities for which the undersigned is subscribing or any part of the
Securities.
Β
Β
-2-
Β
(b)Β The
undersigned has full power and authority to enter into this Agreement, the
execution and delivery of this Agreement has been duly authorized, if
applicable, and this Agreement constitutes a valid and legally binding
obligation of the undersigned.
(c)Β The
undersigned is not subscribing for the Securities as a result of or subsequent
to any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio,
or
presented at any seminar or meeting, or any solicitation of a subscription
by
person previously not known to the undersigned in connection with investment
securities generally.
(d)Β The
undersigned understands that the Company is under no obligation to register
the
Securities under the Securities Act of 1933, as amended (the βSecurities Actβ),
or to assist the undersigned in complying with the Securities Act or the
securities laws of any state of the United States or of any foreign
jurisdiction.
(e)Β The
undersigned is (i) experienced in making investments of the kind described
in
this Agreement and the related documents, (ii) able, by reason of the business
and financial experience of its officers (if an entity) and professional
advisors (who are not affiliated with or compensated in any way by the Company
or any of its affiliates or selling agents), to protect its own interests in
connection with the transactions described in this Agreement, and the related
documents, and (iii) able to afford the entire loss of its investment in the
Securities. The undersigned further understands that the Company currently
has
no business or operations and although it is contemplating entering the field
of
clean energy technologies, the Company currently has no agreements or
arrangements with any persons in connection therewith.
(f)Β The
undersigned acknowledges his understanding that the offering and sale of the
Purchased Shares, Warrants and the issuance of the Warrant Shares upon due
exercise of the Warrants is intended to be exempt from registration under the
Securities Act. In furtherance thereof, in addition to the other representations
and warranties of the undersigned made herein, the undersigned further
represents and warrants to and agrees with the Company and its affiliates as
follows:
Β |
(i)
|
The
undersigned realizes that the basis for the exemption may not be
present
if, notwithstanding such representations, the undersigned has in mind
merely acquiring the Securities for a fixed or determinable period
in the
future, or for a market rise, or for sale if the market does not
rise. The
undersigned does not have any such
intention;
|
Β |
(ii)
|
The
undersigned has the financial ability to bear the economic risk of
his
investment, has adequate means for providing for his current needs
and
personal contingencies and has no need for liquidity with respect
to his
investment in the Company;
|
Β
Β
-3-
Β
Β
Β |
(iii)
|
The
undersigned has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of the
prospective investment in the Securities. The undersigned also represents
it has not been organized for the purpose of acquiring the Securities;
|
Β |
(iv)
|
The
undersigned has been provided an opportunity for a reasonable period
of
time prior to the date hereof to obtain additional information concerning
the offering of the Securities, the Company and all other information
to
the extent the Company possesses such information or can acquire
it
without unreasonable effort or expense;
and
|
Β |
(v)
|
The
undersigned has carefully reviewed all of the Companyβs filings under the
Securities Exchange Act of 1934, as amended (the βExchange
Actβ).
|
(g)Β The
undersigned is not relying on the Company, or its affiliates or agents with
respect to economic considerations involved in this investment. The undersigned
has relied solely on its own advisors.
(h)Β No
representations or warranties have been made to the undersigned by the Company,
or any officer, employee, agent, affiliate or subsidiary of the Company, other
than the representations of the Company contained herein, and in subscribing
for
Units the undersigned is not relying upon any representations other than those
contained herein.
(i)Β Any
resale of the Securities during the βdistribution compliance periodβ as defined
in Rule 902(f) to Regulation S shall only be made in compliance with exemptions
from registration afforded by Regulation S. Further, any such sale of the
Securities in any jurisdiction outside of the United States will be made in
compliance with the securities laws of such jurisdiction. The Investor will
not
offer to sell or sell the Securities in any jurisdiction unless the Investor
obtains all required consents, if any.
(j)
The
undersigned understands that the Securities are being offered and sold in
reliance on an exemption from the registration requirements of United States
federal and state securities laws under Regulation S promulgated under the
Securities Act and that the Company is relying upon the truth and accuracy
of
the representations, warranties, agreements, acknowledgments and understandings
of the Investor set forth herein in order to determine the applicability of
such
exemptions and the suitability of the Investor to acquire the Securities. In
this regard, the undersigned represents, warrants and agrees that:
Β
Β |
1.
|
The
undersigned is an U.S. Person (as defined below) and is not an affiliate
(as defined in Rule 501(b) under the Securities Act) of the Company
and is
not acquiring the Securities for the account or benefit of a U.S.
Person.
A U.S. Person means any one of the
following:
|
Β
Β |
Β·
|
any
natural person resident in the United States of
America;
|
Β
Β |
Β·
|
any
partnership or corporation organized or incorporated under the laws
of the
United States of America;
|
Β
Β
-4-
Β
Β
Β |
Β·
|
any
estate of which any executor or administrator is a U.S.
person;
|
Β
Β |
Β·
|
any
trust of which any trustee is a U.S.
person;
|
Β
Β |
Β·
|
any
agency or branch of a foreign entity located in the United States
of
America;
|
Β
Β |
Β·
|
any
non-discretionary account or similar account (other than an estate
or
trust) held by a dealer or other fiduciary for the benefit or account
of a
U.S. person;
|
Β
Β |
Β·
|
any
discretionary account or similar account (other than an estate or
trust)
held by a dealer or other fiduciary organized, incorporated or (if
an
individual) resident in the United States of America;
and
|
Β
Β |
Β·
|
any
partnership or corporation if:
|
Β
(A)
organized or incorporated under the laws of any foreign jurisdiction;
and
Β
(B)
formed by a U.S. person principally for the purpose of investing in securities
not registered under the Securities Act, unless it is organized or incorporated,
and owned, by accredited investorsΒ (as
defined in Rule 501(a) under the Securities Act) who are not natural persons,
estates or trusts.
Β
Β |
2.
|
At
the time of the origination of contact concerning this Agreement
and the
date of the execution and delivery of this Agreement, the undersigned
was
outside of the United States.
|
Β
Β |
3.
|
The
undersigned will not, during the period commencing on the date of
issuance
of the Purchased Shares or Warrants and ending on the first anniversary
of
such date, or such shorter period as may be permitted by Regulation
S or
other applicable securities law (the βRestricted Periodβ), offer, sell,
pledge or otherwise transfer the Purchased Shares or the Warrants
in the
United States, or to a U.S. Person for the account or for the benefit
of a
U.S. Person, or otherwise in a manner that is not in compliance with
Regulation S.
|
Β
Β |
4.
|
The
undersigned will, after expiration of the Restricted Period, offer,
sell,
pledge or otherwise transfer the Purchased Shares or Warrants only
pursuant to registration under the Securities Act or an available
exemption therefrom and, in accordance with all applicable state
and
foreign securities laws.
|
Β
Β |
5.
|
The
undersigned was not in the United States, engaged in, and prior to
the
expiration of the Restricted Period will not engage in, any short
selling
of or any hedging transaction with respect to the Securities, including
without limitation, any put, call or other option transaction, option
writing or equity swap.
|
Β
Β
-5-
Β
Β
Β |
6.
|
Neither
the undersigned nor or any person acting on his behalf has engaged,
nor
will engage, in any directed selling efforts to a U.S. Person with
respect
to the Securities and the Investor and any person acting on his behalf
have complied and will comply with the βoffering restrictionsβ
requirements of Regulation S under the Securities
Act.
|
Β
Β |
7.
|
The
transactions contemplated by this Agreement have not been pre-arranged
with a buyer located in the United States or with a U.S. Person,
and are
not part of a plan or scheme to evade the registration requirements
of the
Securities Act.
|
Β
Β |
8.
|
Neither
the undersigned nor any person acting on his behalf has undertaken
or
carried out any activity for the purpose of, or that could reasonably
be
expected to have the effect of, conditioning the market in the United
States, its territories or possessions, for any of the Securities.
The
undersigned agrees not to cause any advertisement of the Securities
to be
published in any newspaper or periodical or posted in any public
place and
not to issue any circular relating to the Securities, except such
advertisements that include the statements required by Regulation
S under
the Securities Act, and only offshore and not in the U.S. or its
territories, and only in compliance with any local applicable securities
laws.
|
Β
Β |
9.
|
Each
certificate representing the Securities shall be endorsed with the
following legends, in addition to any other legend required to be
placed
thereon by applicable federal or state securities
laws:
|
Β
(A)Β βTHE
SECURITIESARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS DEFINED
IN
REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (βTHE SECURITIES
ACTβ)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.β
Β
(B)Β βTRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT
TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.β
Β
Β
-6-
Β
Β
Β |
10.
|
The
undersigned consents to the Company making a notation on its records
or
giving instructions to any transfer agent of the Company in order
to
implement the restrictions on transfer of the Securities set forth
in this
Section 2.
|
(k)Β The
undersigned is an βaccredited investorβ as that term is defined in Rule 501 of
the General Rules and Regulations under the Securities Act by reason of Rule
501(a)(3).
(l)Β The
undersigned understands that an investment in the Securities is a speculative
investment which involves a high degree of risk and the potential loss of his
entire investment.
(m)Β The
undersigned's overall commitment to investments which are not readily marketable
is not disproportionate to the undersigned's net worth, and an investment in
the
Securities will not cause such overall commitment to become
excessive.
(n)Β The
undersigned has received all documents, records, books and other information
pertaining to the undersignedβs investment in the Company that has been
requested by the undersigned. The undersigned has reviewed all reports and
other
documents filed by the Company with the Securities and Exchange Commission
(the
βSEC Documentsβ).
(o)Β The
undersigned represents and warrants to the Company that all information that
the
undersigned has provided to the Company, including, without limitation, the
information in the Investor Questionnaire attached hereto or previously provided
to the Company (the βInvestor Questionnaireβ), is correct and complete as of the
date hereof.
(p)Β Other
than as set forth herein, the undersigned is not relying upon any other
information, representation or warranty by the Company or any officer, director,
stockholder, agent or representative of the Company in determining to invest
in
the Securities. The undersigned has consulted, to the extent deemed appropriate
by the undersigned, with the undersignedβs own advisers as to the financial,
tax, legal and related matters concerning an investment in the Securities and
on
that basis believes that his or its investment in the Securities is suitable
and
appropriate for the undersigned.
(q)Β The
undersigned is aware that no federal or state agency has (i) made any finding
or
determination as to the fairness of this investment, (ii) made any
recommendation or endorsement of the Securities or the Company, or (iii)
guaranteed or insured any investment in the Securities or any investment made
by
the Company.
(p)Β The
undersigned understands that the price of the Securities offered hereby bear
no
relation to the assets, book value or net worth of the Company and were
determined arbitrarily by the Company. The undersigned further understands
that
there is a substantial risk of further dilution on his or its investment in
the
Company.
Β
Β
-7-
Β
Β
SECTION
4
The
Company represents and warrants to the undersigned as follows:
4.1Β Β Organization
of the Company.
The
Company is a corporation duly organized and validly existing and in good
standing under the laws of the State of Delaware, and has all requisite power
and authority to own, lease and operate its properties and to carry on its
business as now being conducted.
4.2Β Authority.
(a) The
Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and to issue the Securities; (b)
the execution and delivery of this Agreement by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action and no further consent or
authorization of the Company or its Board of Directors is required; and (c)
this
Agreement has been duly executed and delivered by the Company and constitutes
a
valid and binding obligation of the Company enforceable against the Company
in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors' rights and remedies or by other
equitable principles of general application.
4.3Β Capitalization.
As of
the date hereof, the authorized capital stock of the Company consists of
100,000,000 shares of Common Stock, of which 6,140,000 are issued and
outstanding prior to the share dividend or forward stock split. On the effective
date of the share dividend or forward stock split, 61,140,000 shares of common
stock will be issued and outstanding. All the outstanding shares have been,
or
upon issuance will be, validly issued and are fully paid and nonassessable.
4.4Β SEC
Documents.
To the
best of Company's knowledge, the Company has not provided to the undersigned
any
information that, according to applicable law, rule or regulation, should have
been disclosed publicly prior to the date hereof by the Company, but which
has
not been so disclosed. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Securities Act or the
Exchange Act, as the case may be, and other federal, state and local laws,
rules
and regulations applicable to such SEC Documents, and none of the SEC Documents
contained any untrue statement of a material fact or omitted 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. The financial statements of the Company included in the SEC
Documents comply as to form and substance in all material respects with
applicable accounting requirements and the published rules and regulations
of
the Securities and Exchange Commission (the βSECβ) or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto or (b) in the case
of unaudited interim statements, to the extent they may not include footnotes
or
may be condensed or summary statements) and fairly present in all material
respects the financial position of the Company as of the dates thereof and
the
results of operations and cash flows for the periods then ended (subject, in
the
case of unaudited statements, to normal year-end audit
adjustments).
4.5Β Exemption
from Registration; Valid Issuances.
The
sale and issuance of the Securities, in accordance with the terms and on the
bases of the representations and warranties of the undersigned set forth herein,
may and shall be properly issued by the Company to the undersigned pursuant
to
Section 4(2), Regulation S and/or any applicable U.S state law. When issued
and
paid for as herein provided, the Securities shall be duly and validly issued,
fully paid, and nonassessable. Neither the sales of the Securities pursuant
to,
nor the Company's performance of its obligations under, this Agreement shall
(a)
result in the creation or imposition of any liens, charges, claims or other
encumbrances upon the Securities or any of the assets of the Company, or (b)
entitle the other holders of the Common Stock of the Company to preemptive
or
other rights to subscribe to or acquire the Common Stock or other securities
of
the Company. The Securities shall not subject the undersigned to personal
liability by reason of the ownership thereof.
Β
Β
-8-
Β
4.6Β No
General Solicitation or Advertising in Regard to this
Transaction.
Neither
the Company nor any of its affiliates nor any person acting on its or their
behalf (a) has conducted or will conduct any general solicitation (as that
term
is used in Rule 502(c) of Regulation D) or general advertising with respect
to
any of the Securities, or (b) made any offers or sales of any security or
solicited any offers to buy any security under any circumstances that would
require registration of the Common Stock under the Securities Act.
4.7Β No
Conflicts.Β The
execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby, including
without limitation the issuance of the Securities, do not and will not (a)
result in a violation of the Certificate or By-Laws of the Company or (b)
conflict with, or constitute a material default (or an event that with notice
or
lapse of time or both would become a material default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
material agreement, indenture, instrument or any "lock-up" or similar provision
of any underwriting or similar agreement to which the Company is a party, or
(c)
result in a violation of any federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations)applicable to the Company or by which any property or
asset
of the Company is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a material adverse effect on the
business, operations, properties, prospects or condition (financial or
otherwise) of the Company) nor is the Company otherwise in violation of,
conflict with or in default under any of the foregoing. The Company is not
required under U.S. federal, state or local law, rule or regulation to obtain
any consent, authorization or order of, or make any filing or registration
with,
any court or governmental agency in order for it to execute, deliver or perform
any of its obligations under this Agreement or issue and sell the Common Stock
in accordance with the terms hereof (other than any SEC, NASD or state
securities filings that may be required to be made by the Company subsequent
to
the Closing); provided that, for purposes of the representation made in this
sentence, the Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the undersigned herein.
4.8Β No
Undisclosed Liabilities.
The
Company has no liabilities or obligations that are material, individually or
in
the aggregate, and that are not disclosed in the SEC Documents or otherwise
publicly announced, other than those incurred in the ordinary course of the
Company's businesses and which, individually or in the aggregate, do not or
would not have a material adverse effect on the Company.
Β
4.9Β No
Undisclosed Events or Circumstances.
No
event or circumstance has occurred or exists with respect to the Company or its
businesses, properties, prospects, operations or financial condition, that,
under applicable law, rule or regulation, requires public disclosure or
announcement prior to the date hereof by the Company but which has not been
so
publicly announced or disclosed in the SEC Documents.
Β
Β
-9-
Β
4.10Β No
Integrated Offering.
Neither
the Company, nor any of its affiliates, nor any person acting on its or their
behalf has, directly or indirectly, made any offers or sales of any security
or
solicited any offers to buy any security, other than pursuant to this
Agreement.
4.11Β No
Misleading or Untrue Communication.
The
Company, any person representing the Company, and, to the knowledge of the
Company, any other person selling or offering to sell the Securities, if any,
in
connection with the transactions contemplated by this Agreement, have not made,
at any time, any written or oral communication in connection with the offer
or
sale of the same which contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements,
in
the light of the circumstances under which they were made, not
misleading.
SECTION
5
5.1Β Β Indemnity.
The
undersigned agrees to indemnify and hold harmless the Company, its officers
and
directors, employees and its affiliates and their respective successors and
assigns and each other person, if any, who controls any thereof, against any
loss, liability, claim, damage and expense whatsoever (including, but not
limited to, any and all expenses whatsoever reasonably incurred in
investigating, preparing or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty or breach or failure by the undersigned to comply
with any covenant or agreement made by the undersigned herein or in any other
document furnished by the undersigned to any of the foregoing in connection
with
this transaction.
5.2Β Modification.
Neither
this Agreement nor any provisions hereof shall be modified, discharged or
terminated except by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
5.3Β Notices.
Any
notice, demand or other communication which any party hereto may be required,
or
may elect, to give to anyone interested hereunder shall be sufficiently given
if
(a) deposited, postage prepaid, in a United States mail letter box, registered
or certified mail, return receipt requested, addressed to such address as may
be
given herein, or (b) delivered personally at such address.
5.4Β Counterparts.
This
Agreement may be executed through the use of separate signature pages or in
any
number of counterparts and by facsimile, and each of such counterparts shall,
for all purposes, constitute one agreement binding on all parties,
notwithstanding that all parties are not signatories to the same counterpart.
Signatures may be facsimiles.
5.5Β Binding
Effect.
Except
as otherwise provided herein, this Agreement shall be binding upon and inure
to
the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives and assigns. If the undersigned is more than
one person, the obligation of the undersigned shall be joint and several and
the
agreements, representations, warranties and acknowledgments herein contained
shall be deemed to be made by and be binding upon each such person and his
heirs, executors, administrators and successors.
5.6Β Entire
Agreement.
This
Agreement and the documents referenced herein contain the entire agreement
of
the parties and there are no representations, covenants or other agreements
except as stated or referred to herein and therein.
5.7Β Assignability.
This
Agreement is not transferable or assignable by the undersigned.
5.8Β Applicable
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without giving effect to conflicts of law
principles.
5.9Β Pronouns.
The use
herein of the masculine pronouns "him" or "his" or similar terms shall be deemed
to include the feminine and neuter genders as well and the use herein of the
singular pronoun shall be deemed to include the plural as well.
Β
Β
-10-
Β
IN
WITNESS WHEREOF, the undersigned has executed this Agreement on the Β
day of
November, 2007.
Amount
of
Investment:
$_____________________
INDIVIDUAL
INVESTOR:
______________________
Name:
PARTNERSHIP,
CORPORATION, TRUST,
CUSTODIAL
ACCOUNT, OTHER INVESTOR
___________________________
(Print
Name of Entity)
By:Β __________________
Name:
Title:
Address:
Β
Taxpayer
Identification Number:_____________
Β
Β
-11-
Β
Β
ACCEPTANCE
OF SUBSCRIPTION
(to
be
filed out only
by the
Company)
The
Company hereby accepts the above application for subscription for Units on
behalf of the Company.
PCMT
CORPORATIONΒ Β Β Dated:
______ ___, 2007
By:______________________________
Name:
Title:
Β
Β
-12-
Β
Appendix
A
Β
Wiring
Instructions
Β
For
Payment of Purchase Price
Β
The
following are the wire instructions for the account into which the payment
of
the purchase price for the Units subscribed for should be wired.
Account
#: 9429354769
Routing
#: 000000000
Reference
Sub-Account # 11645
Account
Name: Xxxxx Xxxxx & Associates Master Escrow Account
Bank
of
America
000
Xxxxxxx Xxxxxx
Xxxxxxxx,
Xxx Xxxx 00000
In
case
the entity on behalf of which the transfer is taking place is different from
the
transferor, please make sure that the wire includes in the comments the name
of
the entity.
Β
Β
-13-
Β
Β
PCMT
CORPORATION
INVESTOR
QUESTIONNAIRE
A.
|
General
Information
|
Β |
Β | Β | Β |
1.
|
Print
Full Name of Investor:
|
Individual:
|
Β | Β |
____________________________________
|
Β | Β |
First,
Middle, Last
|
Β | Β | Β |
Β | Β |
Partnership,
Corporation, Trust, Custodial Account, Other:
|
Β | Β | Β |
Β | Β |
____________________________________
|
Β | Β |
Name
of Entity
|
Β | Β | Β |
2.
|
Address
for Notices:
|
____________________________________
|
Β | Β |
____________________________________
|
Β | Β |
____________________________________
|
Β | Β | Β |
3.
|
Name
of Primary Contact Person:
Title:
|
____________________________________
|
Β | Β | Β |
4.
|
Telephone
Number:
|
____________________________________
|
Β | Β | Β |
5.
|
E-Mail
Address:
|
____________________________________
|
Β | Β | Β |
6.
|
Facsimile
Number:
|
____________________________________
|
Β | Β | Β |
7.
|
Permanent
Address:
(if
different from Address for Notices above)
|
____________________________________
|
Β
Β
-14-
Β
Β
8.
|
Authorized
Signatory:
Title:
|
____________________________________
____________________________________
|
Β |
Telephone
Number:
|
____________________________________
|
Β |
Facsimile
Number:
|
____________________________________
|
9.
Β
|
U.S.
Investors Only:
Β
U.S.
Taxpayer Identification or Social
Security
Number:
|
Β
Β
____________________________________
|
B.Β Accredited
Investor Status
The
Investor represents and warrants that the Investor is an βaccredited investorβ
within the meaning of Rule 501 of Regulation D under the Securities Act of
1933,
as amended (the βSecurities Actβ), and has checked the box or boxes below which
are next to the categories under which the Investor qualifies as an accredited
investor:
FOR
INDIVIDUALS:
Β
o
|
A
natural person with individual net worth (or joint net worth with
spouse)
in excess of $1 million. For purposes of this item, βnet worthβ means the
excess of total assets at fair market value, including home, home
furnishings and automobiles (and including property owned by a spouse),
over total liabilities.
|
|
Β | Β | |
o
|
A
natural person with individual income (without including any income
of the
Investorβs spouse) in excess of $200,000, or joint income with spouse of
$300,000, in each of the two most recent years and who reasonably
expects
to reach the same income level in the current
year.
|
Β
FOR
ENTITIES:
Β
o
|
A
bank as defined in Section 3(a)(2) of the Securities Act or any savings
and loan association or other institution as defined in Section 3(a)(5)(A)
of the Securities Act, whether acting in its individual or fiduciary
capacity.
|
|
Β | Β | |
o
|
An
insurance company as defined in Section 2(13) of the Securities
Act.
|
|
Β | Β | |
o
|
A
broker-dealer registered pursuant to Section 15 of the Securities
Exchange
Act of 1934.
|
|
Β | Β | |
o
|
An
investment company registered under the Investment Company Act of
1940, as
amended (the βInvestment Company Actβ). If an Investor has checked this
box, please contact _______ for additional information that will
be
required.
|
Β
Β
-15-
Β
Β
o
|
A
business development company as defined in Section 2(a)(48) of the
Investment Company Act.
|
|
Β | Β | |
o
|
A
small business investment company licensed by the Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
|
|
Β | Β | |
o
|
A
private business development company as defined in Section 202(a)(22)
of
the Investment Advisers Act of 1940. If an Investor has checked this
box,
please contact ______ for additional information that will be
required.
|
|
Β | Β | |
o
|
An
organization described in Section 501(c)(3) of the Internal Revenue
Code,
a corporation, Massachusetts or similar business trust, or partnership,
not formed for the specific purpose of acquiring the Units, with
total
assets in excess of $5 million.
|
|
Β | Β | |
o
|
A
trust with total assets in excess of $5 million not formed for the
specific purpose of acquiring the Units, whose purchase is directed
by a
person with such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Company and the purchase of the
Units.
|
|
Β | Β | |
o
|
An
employee benefit plan within the meaning of ERISA if the decision
to
invest in the Units is made by a plan fiduciary, as defined in Section
3(21) of ERISA, which is either a bank, savings and loan association,
insurance company, or registered investment adviser, or if the employee
benefit plan has total assets in excess of $5 million or, if a
self-directed plan, with investment decisions made solely by persons
that
are accredited investors.
|
|
Β | Β | |
o
|
A
plan established and maintained by a state, its political subdivisions,
or
any agency or instrumentality of a state or its political subdivisions,
for the benefit of its employees, if the plan has total assets in
excess
of $5 million.
|
|
Β | Β | |
o
|
An
entity, including a grantor trust, in which all of the equity owners
are
accredited investors as determined under any of the foregoing paragraphs
(for this purpose, a beneficiary of a trust is not an equity owner,
but
the grantor of a grantor trust is an equity
owner).
|
Β
C.Β Β Supplemental
Data for Entities
1.Β If
the
Investor is not a natural person, furnish the following supplemental data
(natural persons may skip this Section C of the Investor
Questionnaire):
Legal
form of entity (trust, corporation, partnership, etc.):
_________________________
Jurisdiction
of organization: ________________________________________________
Β
Β
-16-
Β
2.
Β Was
the
Investor organized for the specific purpose of acquiring the Units?
o
Yes
|
o
No
|
If
the
answer to the above question is βYes,β please contact _______, ________, at
_______ or ________ for additional information that will be
required.
3.
Β Are
shareholders, partners or other holders of equity or beneficial interest in
the
Investor able to decide individually whether to participate, or the extent
of
their participation, in the Investorβs investment in the Company (i.e., can
shareholders, partners or other holders of equity or beneficial interest in
the
Investor determine whether their capital will form part of the capital invested
by the Investor in the Company)?
o
Yes
|
o
No
|
If
the
answer to the above question is βYes,β please contact Xxxxx Xxxxx &
Associates, PLLC (xxxxx@xxxxxxxxxxxxxxxx.xxx
or
516-887-8200) for additional information that will be required.
4(a).
Β Please
indicate whether or not the Investor is, or is acting on behalf of, (i) an
employee benefit plan within the meaning of Section 3(3) of ERISA, whether
or not such plan is subject to ERISA,
or (ii)
an entity which is deemed to hold the assets of any such employee benefit plan
pursuant to 29 C.F.R. Β§ 2510.3-101. For example, a plan which is maintained by a
foreign corporation, governmental entity or church, a Xxxxx plan covering no
common-law employees and an individual retirement account are employee benefit
plans within the meaning of Section 3(3) of ERISA but generally are not subject
to ERISA (collectively, βNon-ERISA
Plansβ).
In
general, a foreign or US entity which is not an operating company and which
is
not publicly traded or registered as an investment company under the Investment
Company Act of 1940, as amended, and in which 25% or more of the value of any
class of equity interest is held by employee pension or welfare plans (including
an entity which is deemed to hold the assets of any such plan), would be deemed
to hold the assets of one or more employee benefit plans pursuant to 29 C.F.R.
Β§
2510.3-101. However, if only Non-ERISA Plans were invested in such an entity,
the entity generally would not be subject to ERISA. For purposes of determining
whether this 25% threshold has been met or exceeded, the value of any equity
interest held by a person (other than such a plan or entity) who has
discretionary authority or control with respect to the assets of the entity,
or
any person who provides investment advice for a fee (direct or indirect) with
respect to such assets, or any affiliate of such a person, is
disregarded.
o
Yes
|
o
No
|
4(b).
Β If
the
Investor is, or is acting on behalf of, such an employee benefit plan, or is
an
entity deemed to hold the assets of any such plan or plans, please indicate
whether or not the Investor is subject to ERISA.
o
Yes
|
o
No
|
4(c.)Β If
the
Investor answered βYesβ to question 4.(b) and the Investor is investing the
assets of an insurance company general account, please indicate what percentage
of the Investorβs assets the purchase of the Units is subject to ERISA.
___________%.
Β
Β
-17-
Β
5.
Β Does
the
amount of the Investorβs subscription for the Units in the Company exceed 40% of
the total assets (on a consolidated basis with its subsidiaries) of the
Investor?
o
Yes
|
o
No
|
If
the
question above was answered βYes,β please contact Xxxxx Xxxxx & Associates
for additional information that will be required.
6(a).Β Is
the
Investor a private investment company which is not registered under the
Investment Company Act, in reliance on Section 3(c)(1) or Section 3(c)(7)
thereof?
o
Yes
|
o
No
|
6(b).
Β If
the
question above was answered βYes,β was the Investor formed prior to April 30,
1996?
o
Yes
|
o
No
|
If
the
questions set forth in (a) and (b) above were both answered βYes,β please
contact Xxxxx Xxxxx & Associates for additional information that will be
required.
7(a).
Β Is
the
Investor a grantor trust, a partnership or an S-Corporation for US federal
income tax purposes?
o
Yes
|
o
No
|
7(b).
Β If
the
question above was answered βYes,β please indicate whether or not:
(i)
more
than 50 percent of the value of the ownership interest of any beneficial owner
in the Investor is (or may at any time during the term of the Company be)
attributable to the Investorβs (direct or indirect) interest in the Company;
or
o
Yes
|
o
No
|
(ii)
it
is a principal purpose of the Investorβs participation in the Company to permit
the Partnership to satisfy the 100 partner limitation contained in US Treasury
Regulation Section 1.7704-1(h)(3).
o
Yes
|
o
No
|
If
either
question above was answered βYes,β please contact Xxxxx Xxxxx & Associates
for additional information that will be required.
8.Β If
the
Investorβs tax year ends on a date other than December 31, please indicate such
date below:
Β | Β |
Β |
(Date)
|
Β
Β
-18-
Β
D.Β Β Related
Parties
1.Β To
the
best of the Investorβs knowledge, does the Investor control, or is the Investor
controlled by or under common control with, any other investor in the
Company?
o
Yes
|
o
No
|
If
the
answer above was answered βYesβ, please identify such related investor(s)
below.
Name(s)
of related investor(s): _______________________________-
2.
Will
any
other person or persons have a beneficial interest in the Units to be acquired
hereunder (other than as a shareholder, partner, or other beneficial owner
of
equity interest in the Investor)?
o
Yes
|
o
No
|
If
either
question above was answered βYesβ, please contact Xxxxx Xxxxx & Associates
for additional information that will be required.
The
Investor understands that the foregoing information will be relied upon by
the
Company for the purpose of determining the eligibility of the Investor to
purchase the Units. The Investor agrees to notify the Company immediately if
any
representation or warranty contained in this Subscription Agreement, including
this Investor Questionnaire, becomes untrue at any time. The Investor agrees
to
provide, if requested, any additional information that may reasonably be
required to substantiate the Investorβs status as an accredited investor or to
otherwise determine the eligibility of the Investor to purchase the Units.
The
Investor agrees to indemnify and hold harmless the Company and each officer,
director, shareholder, agent and representative of the Company and their
respective affiliates and successors and assigns from and against any loss,
damage or liability due to or arising out of a breach of any representation,
warranty or agreement of the Investor contained herein.
Β |
INDIVIDUAL:
|
Β | Β |
Β |
____________________________________
|
Β |
(Signature)
|
Β | Β |
Β |
____________________________________
|
Β |
(Print
Name)
|
Β | Β |
Β |
PARTNERSHIP,
CORPORATION, TRUST, CUSTODIAL ACCOUNT, OTHER:
|
Β | Β |
Β |
___________________________________
|
Β |
(Name
of Entity)
|
Β | Β |
Β |
By:
________________________________
|
Β |
(Signature)
|
Β | Β |
Β |
________________________________
|
Β |
(Print
Name and Title)
|
Β
-19-
Β
Β
Annex
1
Β
DEFINITION
OF βINVESTMENTSβ
The
term
βinvestmentsβ means:
1)
|
Securities,
other than securities of an issuer that controls, is controlled by,
or is
under common control with, the Investor that owns such securities,
unless
the issuer of such securities is:
|
Β |
(i)
|
An
investment company or a company that would be an investment company
but
for the exclusions or exemptions provided by the Investment Company
Act,
or a commodity pool; or
|
Β |
(ii)
|
a
Public Company (as defined below);
|
Β |
(iii)
|
A
company with shareholdersβ equity of not less than $50 million (determined
in accordance with generally accepted accounting principles) as reflected
on the companyβs most recent financial statements, provided that such
financial statements present the information as of a date within
16 months
preceding the date on which the Investor acquires
Units;
|
2)
|
Real
estate held for investment
purposes;
|
3)
|
Commodity
Shares (as defined below) held for investment
purposes;
|
4)
|
Physical
Commodities (as defined below) held for investment
purposes;
|
5)
|
To
the extent not securities, Financial Contracts (as defined below)
entered
into for investment purposes;
|
6)
|
In
the case of an Investor that is a company that would be an investment
company but for the exclusions provided by Section 3(c)(1) or 3(c)(7)
of
the Investment Company Act, or a commodity pool, any amounts payable
to
such Investor pursuant to a firm agreement or similar binding commitment
pursuant to which a person has agreed to acquire an interest in,
or make
capital contributions to, the Investor upon the demand of the Investor;
and
|
7)
|
Cash
and cash equivalents held for investment
purposes.
|
Real
Estate that is used by the owner or a Related Person (as defined below) of
the
owner for personal purposes, or as a place of business, or in connection with
the conduct of the trade or business of such owner or a Related Person of the
owner, will NOT be considered Real Estate held for investment purposes, provided
that real estate owned by an Investor who is engaged primarily in the business
of investing, trading or developing real estate in connection with such business
may be deemed to be held for investment purposes. However, residential real
estate will not be deemed to be used for personal purposes if deductions with
respect to such real estate are not disallowed by section 280A of the Internal
Revenue Code of 1986, as amended.
Β
Β
Β
Β
A
Commodity Interest or Physical Commodity owned, or a Financial Contract entered
into, by the Investor who is engaged primarily in the business of investing,
reinvesting, or trading in Commodity Shares, Physical Commodities or Financial
Contracts in connection with such business may be deemed to be held for
investment purposes.
βCommodity
Sharesβ means commodity futures contracts, options on commodity futures
contracts, and options on physical commodities traded on or subject to the
rules
of:
Β |
(i)
|
Any
contract market designated for trading such transactions under the
Commodity Exchange Act and the rules thereunder;
or
|
Β |
(ii)
|
Any
board of trade or exchange outside the United States, as contemplated
in
Part 30 of the rules under the Commodity Exchange
Act.
|
βPublic
Companyβ means a company that:
Β |
(i)
|
files
reports pursuant to Section 13 or 15(d) of the Securities Exchange
Act of
1934, as amended; or
|
Β |
(ii)
|
has
a class of securities that are listed on a Designated Offshore Securities
Market, as defined by Regulation S of the Securities
Act.
|
βFinancial
Contractβ means any arrangement that:
Β |
(i)
|
takes
the form of an individually negotiated contract, agreement, or option
to
buy, sell, lend, swap, or repurchase, or other similar individually
negotiated transaction commonly entered into by participants in the
financial markets;
|
Β |
(ii)
|
is
in respect of securities, commodities, currencies, interest or other
rates, other measures of value, or any other financial or economic
interest similar in purpose or function to any of the foregoing;
and
|
Β |
(iii)
|
is
entered into in response to a request from a counter party for a
quotation, or is otherwise entered into and structured to accommodate
the
objectives of the counterparty to such
arrangement.
|
βPhysical
Commoditiesβ means any physical commodity with respect to which a Commodity
Interest is traded on a market specified in the definition of Commodity Shares
above.
βRelated
Personβ means a person who is related to the Investor as a sibling, spouse or
former spouse, or is a direct lineal descendant or ancestor by birth or adoption
of the Investor, or is a spouse of such descendant or ancestor, provided that,
in the case of a Family Company, a Related Person includes any owner of the
Family Company and any person who is a Related Person of such an owner. βFamily
Companyβ means a company that is owned directly or indirectly by or for two or
more natural persons who are related as siblings or spouse (including former
spouses), or direct lineal descendants by birth or adoption, spouses of such
persons, the estates of such persons, or foundations, charitable organizations
or trusts established for the benefit of such persons.
For
purposes of determining the amount of investments owned by a company, there
may
be included investments owned by majority-owned subsidiaries of the company
and
investments owned by a company (βParent Companyβ) of which the company is a
majority-owned subsidiary, or by a majority-owned subsidiary of the company
and
other majority-owned subsidiaries of the Parent Company.
In
determining whether a natural person is a qualified purchaser, there may be
included in the amount of such personβs investments any investment held jointly
with such personβs spouse, or investments in which such person shares with such
personβs spouse a community property or similar shared ownership interest. In
determining whether spouses who are making a joint investment in the Partnership
are qualified purchasers, there may be included in the amount of each spouseβs
investments any investments owned by the other spouse (whether or not such
investments are held jointly). There shall be deducted from the amount of any
such investments any amounts specified by paragraph 2(a) of Annex 2 incurred
by
such spouse.
In
determining whether a natural person is a qualified purchaser, there may be
included in the amount of such personβs investments any investments held in an
individual retirement account or similar account the investments of which are
directed by and held for the benefit of such person.
Β
Β
ii
Β
Annex
2
Β
VALUATIONS
OF INVESTMENTS
The
general rule for determining the value of investments in order to ascertain
whether a person is a qualified purchaser is that the value of the aggregate
amount of investments owned and invested on a discretionary basis by such person
shall be their fair market value on the most recent practicable date or their
cost. This general rule is subject to the following provisos:
1)
|
In
the case of Commodity Shares, the amount of investments shall be
the value
of the initial margin or option premium deposited in connection with
such
Commodity Shares; and
|
2)
|
In
each case, there shall be deducted from the amount of investments
owned by
such person the following amounts:
|
Β |
(i)
|
The
amount of any outstanding indebtedness incurred to acquire the investments
owned by such person.
|
Β |
(ii)
|
A
Family Company, in addition to the amounts specified in paragraph
(a)
above, shall have deducted from the value of such Family Companyβs
investments any outstanding indebtedness incurred by an owner of
the
Family Company to acquire such
investments.
|
Β
iii
Β
Β
CLASS
A
WARRANT AGREEMENT (βAgreementβ),
dated
as of November __, 2007, by and between PCMT Corporation, a Delaware corporation
(the βCompanyβ),
and
____________________ (βWarrantholderβ).
Certain capitalized terms used herein are defined in Section 15
hereof.
Β
In
consideration of the mutual terms, conditions, representations, warranties
and
agreements herein set forth, and for other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
Β
Section
1. Issuance
of Warrants.
Β
The
Company hereby issues and grants to Warrantholder ________ (_______)
stock
purchase warrants, which are hereby designated and shall be known as
βClass
A
Warrantsβ (hereinafter referred to as βWarrantsβ).
Each
Warrant shall grant to the holder thereof the right to purchase one (1)
share of
common stock of the Company (the βCommon
Stockβ).
Commencing on _____________ (the βWarrant
Commencement Dateβ),
and
terminating one year from the date of such issuance (the βWarrant
Expiration Dateβ),
the
holder shall have the right, subject to the satisfaction of the conditions
to
exercise set forth in Section 7 of this Agreement, to purchase one (1)
share of
Common Stock per each Warrant (the shares of Common Stock issuable upon
exercise
of the Warrants being collectively referred to herein as the βWarrant
Sharesβ)
at an
exercise price of $0.25 per Warrant Share (the βExercise
Priceβ).
The
number of Warrant Shares issuable on exercise of each Warrant and the Exercise
Price are all subject to adjustment pursuant to Section 8 of this Agreement.
Β
Section
2. Form
of Warrant Certificates.
Β
Promptly
after the execution and delivery of this Agreement by the parties hereto,
the
Company may, in its sole and absolute discretion, cause to be executed
and
delivered to Warrantholder one or more certificates evidencing the Warrants
(the
βWarrant
Certificatesβ).
Each
Warrant Certificate delivered hereunder shall be substantially in the form
set
forth in Exhibit
1 - Warrant Form
attached
hereto and may have such letters, numbers or other identification marks
and
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and that are not inconsistent with the terms of this Agreement
or as
may be required by applicable law, rule or regulation. Each Warrant Certificate
shall be dated the date of execution by the Company.
Β
Section
3. Execution
of Warrant Certificates.
Β
Each
Warrant Certificate delivered hereunder shall be signed on behalf of the
Company
by at least one of the following: its Chief Executive Officer, President,
Vice
President, Secretary or Assistant Secretary. Each such signature may be
in the
form of a facsimile thereof and may be imprinted or otherwise reproduced
on the
Warrant Certificates.
Β
If
any
officer of the Company who signed any Warrant Certificate ceases to be
an
officer of the Company before the Warrant Certificate so signed shall have
been
delivered by the Company, such Warrant Certificate nevertheless may be
delivered
as though such person had not ceased to be such officer of the
Company.
Β
Β
Β
Β
Β
Section
4. Registration
of Ownership and Transfer.
Β
Warrant
Certificates shall be issued in registered form only. The Company will
keep or
cause to be kept books for registration of ownership and transfer of each
Warrant Certificate issued pursuant to this Agreement. Each Warrant Certificate
issued pursuant to this Agreement shall be numbered by the Company and
shall be
registered by the Company in the name of the holder thereof (initially
the
Warrantholder). The Company may deem and treat the registered holder of
any
Warrant Certificate as the absolute owner thereof (notwithstanding any
notation
of ownership or other writing thereon made by anyone) for the purpose of
any
exercise thereof and for all other purposes, and the Company shall not
be
affected by any notice to the contrary.
Β
Section
5. No
Transfers.
Β
No
Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred
or
otherwise disposed of without the agreement of the Company, which will
not be
unreasonably withheld.
Β
Section
6.Β Mutilated
or Missing Warrant Certificates.
Β
If
any
Warrant Certificate is mutilated, lost, stolen or destroyed, the Company
shall
issue, upon surrender and cancellation of any mutilated Warrant Certificate,
or
in lieu of and substitution for any lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of like tenor and representing an
equal
number of Warrants. In the case of a lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate shall be issued by the Company only
upon
the Companyβs receipt of reasonably satisfactory evidence of such loss, theft or
destruction and, if requested, an indemnity or bond reasonably satisfactory
to
the Company.
Β
Section
7.Β Exercise
of Warrants.
Β
A.Β Exercise.
Subject
to the terms and conditions set forth in this Section 7, Warrants may be
exercised, in whole or in part (but not as to any fractional part of a
Warrant),
at any time or from time to time on and after the Warrant Commencement
Date and
on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration
Date.
Β
In
order
to exercise any Warrant, Warrantholder shall deliver to the Company at
its
office referred to in SectionΒ 16 the following: (i)Β a written notice
in the form of the Election to Purchase appearing at the end of the form
of
Warrant Certificate attached as Exhibit
2 - Form of Election to Purchase hereto
of
such Warrantholderβs election to exercise the Warrants, which notice shall
specify the number of such Warrantholderβs Warrants being exercised;
(ii)Β the Warrant Certificate or Warrant Certificates, if any, evidencing
the Warrants being exercised; and (iii) payment of the aggregate Exercise
Price.
Β
All
rights of Warrantholder with respect to any Warrant that has not been exercised,
on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date
shall
immediately cease and such Warrants shall be automatically cancelled and
void.
Β
B.Β Payment
of Exercise Price.
Payment
of the Exercise Price with respect to Warrants being exercised hereunder
shall
be made by the payment to the Company, in cash, by check or wire transfer,
of an
amount equal to the Exercise Price multiplied by the number of Warrants
then
being exercised.
Β
C.Β Payment
of Taxes.
The
Company shall be responsible for paying any and all issue, documentary,
stamp or
other taxes that may be payable in respect of any issuance or delivery
of
Warrant Shares on exercise of a Warrant. Notwithstanding anything contained
herein to the contrary, the Warrantholder shall be responsible for all
taxes
that may be due and payable by the Warrantholder as a result of the issuance
of
this Warrant to the Warrantholder or as a result of the issuance of the
Warrant
Shares upon due exercise hereof.
Β
Β
-2-
Β
Β
D.Β Delivery
of Warrant Shares.
Upon
receipt of the items referred to in Section 7A, the Company shall, as promptly
as practicable, execute and deliver or cause to be executed and delivered,
to or
upon the written order of Warrantholder, and in the name of Warrantholder
or
Warrantholderβs designee, a stock certificate or stock certificates representing
the number of Warrant Shares to be issued on exercise of the Warrant(s).
If the
Warrant Shares shall in accordance with the terms thereof have become
automatically convertible into shares of the Companyβs Common Stock prior to the
time a Warrant is exercised, the Company shall in lieu of issuing shares
of
Common Stock, issue to the Warrantholder or its designee on exercise of
such
Warrant, a stock certificate or stock certificates representing the number
of
shares of Common Stock into which the Warrant Shares issuable on exercise
of
such Warrant are convertible. The certificates issued to Warrantholder
or its
designee shall bear any restrictive legend required under applicable law,
rule
or regulation. The stock certificate or certificates so delivered shall
be
registered in the name of Warrantholder or such other name as shall be
designated in said notice. A Warrant shall be deemed to have been exercised
and
such stock certificate or stock certificates shall be deemed to have been
issued, and such holder or any other Person so designated to be named therein
shall be deemed to have become a holder of record of such shares for all
purposes, as of the date that such notice, together with payment of the
aggregate Exercise Price and the Warrant Certificate or Warrant Certificates
evidencing the Warrants to be exercised, is received by the Company as
aforesaid. If the Warrants evidenced by any Warrant Certificate are exercised
in
part, the Company shall, at the time of delivery of the stock certificates,
deliver to the holder thereof a new Warrant Certificate evidencing the
Warrants
that were not exercised or surrendered, which shall in all respects (other
than
as to the number of Warrants evidenced thereby) be identical to the Warrant
Certificate being exercised. Any Warrant Certificates surrendered upon
exercise
of Warrants shall be canceled by the Company.
Β
Section
8. Adjustment
of Number of Warrant Shares Issuable Upon Exercise of a Warrant and Adjustment
of Exercise Price.
Β
A.Β Adjustment
for Stock Splits, Stock Dividends, Recapitalizations.
The
number of Warrant Shares issuable upon exercise of each Warrant and the
Exercise
Price shall each be proportionately adjusted to reflect any stock dividend,
stock split, reverse stock split, recapitalization or the like affecting
the
number of outstanding shares of Common Stock that occurs after the date
hereof.
Β
B.Β Adjustments
for Reorganization, Consolidation, Merger.
If
after the date hereof, the Company (or any other entity, the stock or other
securities of which are at the time receivable on the exercise of the Warrants),
consolidates with or merges into another entity or conveys all or substantially
all of its assets to another entity, then, in each such case, Warrantholder,
upon any permitted exercise of a Warrant (as provided in Section 7), at
any time
after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, inΒ lieu
of
the stock or other securities and property receivable upon the exercise
of the
Warrant prior to such consummation, the stock or other securities or property
to
which such Warrantholder would have been entitled upon the consummation
of such
reorganization, consolidation, merger or conveyance if such Warrantholder
had
exercised the Warrant immediately prior thereto, all subject to further
adjustment as provided in this Section 8. The successor or purchasing entity
in
any such reorganization, consolidation, merger or conveyance (if other
than the
Company) shall duly execute and deliver to Warrantholder a written
acknowledgment of such entityβs obligations under the Warrants and this
Agreement.
Β
Β
-3-
Β
Β
C.Β Notice
of Certain Events.
Β
Upon
the
occurrence of any event resulting in an adjustment in the number of Warrant
Shares (or other stock or securities or property) receivable upon the exercise
of the Warrants or the Exercise Price, the Company shall promptly thereafter
(i)
compute such adjustment in accordance with the terms of the Warrants, (ii)
prepare a certificate setting forth such adjustment and showing in detail
the
facts upon which such adjustment is based, and (iii) mail copies of such
certificate to Warrantholder.
Β
Section
9.Β Reservation
of Shares.
Β
The
Company shall at all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued Common Stock,
or its
authorized and issued Common Stock held in its treasury, the aggregate
number of
the Warrant Shares deliverable upon the exercise of all outstanding Warrants,
for the purpose of enabling it to satisfy any obligation to issue the Warrant
Shares upon the due and punctual exercise of the Warrants, through 5:00
p.m.,
Eastern time, on the Warrant Expiration Date.
Β
Section
10.Β No
Impairment.
Β
The
Company shall not, by amendment of its certificate of incorporation or
bylaws,
or through reorganization, consolidation, merger, dissolution, issuance
or sale
of securities, sale of assets or any other voluntary action, willfully
avoid or
seek to avoid the observance or performance of any of the terms of the
Warrants
or this Agreement, and 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 in order to protect the rights of Warrantholder under the
Warrants and this Agreement against wrongful impairment. Without limiting
the
generality of the foregoing, the Company: (i) shall not set or increase
the par
value of any Warrant Shares above the amount payable therefor upon exercise,
and
(ii) shall take all actions that are necessary or appropriate in order
that the
Company may validly and legally issue fully paid and nonassessable Warrant
Shares upon the exercise of the Warrants.
Β
Section
11.Β Representations
and Warranties of Warrantholder.
Β
Warrantholder
represents and warrants to the Company that, on the date hereof and on
the date
the Warrantholder exercises the Warrant pursuant to the terms of this
Agreement:
Β
A.
Β Warrantholder
understands that the Warrants and the Warrant Shares have not been registered
under the Securities Act and acknowledges that the Warrants and the Warrant
Shares must be held indefinitely unless they are subsequently registered
under
the Securities Act or an exemption from such registration becomes available.
Β
B.
Β Warrantholder
is acquiring the Warrants for Warrantholderβs own account for investment and not
with a view to, or for sale in connection with, any distribution
thereof.
Β
C.
Β Warrantholder
understands that the Warrants and the Warrant Shares are being offered
and sold
to him in reliance on an exemption from the registration requirements of
United
States federal and state securities laws under Regulation S promulgated
under
the Securities Act and that the Company is relying upon the truth and accuracy
of the representations, warranties, agreements, acknowledgments and
understandings of the Warrantholder set forth herein in order to determine
the
applicability of such exemptions and the suitability of the Warrantholder
to
acquire the Warrants and Warrant Shares. In this regard, Warrantholder
represents, warrants and agrees that:
Β
Β
-4-
Β
(1)
Warrantholder
is not a U.S. Person (as defined below) and is not an affiliate (as defined
in
Rule 501(b) under the Securities Act) of the Company and is not acquiring
the
Warrants and Warrant Shares for the account or benefit of a U.S. Person.
A U.S.
Person means any one of the following:
(A)
Β any
natural person resident in the United States of America;
(B)
Β any
partnership or corporation organized or incorporated under the laws of
the
United States of America;
(C)Β any
estate of which any executor or administrator is a U.S. person;
(D)Β any
trust
of which any trustee is a U.S. person;
(E)Β any
agency or branch of a foreign entity located in the United States of
America;
(F)Β any
non-discretionary account or similar account (other than an estate or trust)
held by a dealer or other fiduciary for the benefit or account of a U.S.
person;
(G)Β any
discretionary account or similar account (other than an estate or trust)
held by
a dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States of America; and
(H)Β any
partnership or corporation if:
(i)
organized or incorporated under the laws of any foreign jurisdiction;
and
(ii)
Β formed
by
a U.S. person principally for the purpose of investing in securities not
registered under the Securities Act, unless it is organized or incorporated,
and
owned, by accredited investorsΒ (as
defined in Rule 501(a) under the Securities Act) who are not natural persons,
estates or trusts.
(2)
Β At
the
time of the origination of contact concerning this Agreement and the date
of the
execution and delivery of this Agreement, Warrantholder was outside of
the
United States.
(3)Β Warrantholder
will not, during the period commencing on the date of issuance of the Warrants
and Warrant Shares and ending on the first anniversary of such date, or
such
shorter period as may be permitted by Regulation S or other applicable
securities law (the βRestricted Periodβ), offer, sell, pledge or otherwise
transfer the Warrants and Warrant Shares in the United States, or to a
U.S.
Person for the account or for the benefit of a U.S. Person, or otherwise
in a
manner that is not in compliance with Regulation S.
Β
Β
-5-
Β
(4)Β Warrantholder
will, after expiration of the Restricted Period, offer, sell, pledge or
otherwise transfer the Warrants and Warrant Shares only pursuant to registration
under the Securities Act or an available exemption therefrom and, in accordance
with all applicable state and foreign securities laws and this
Agreement.
(5)Β Warrantholder
was not in the United States, engaged in, and prior to the expiration of
the
Restricted Period will not engage in, any short selling of or any hedging
transaction with respect to the Warrants and Warrant Shares, including
without
limitation, any put, call or other option transaction, option writing or
equity
swap.
(6)Β Neither
Warrantholder nor or any person acting on Warrantholderβs behalf has engaged,
nor will engage, in any directed selling efforts to a U.S. Person with
respect
to the Warrants and Warrant Shares and the Warrantholder and any person
acting
on Warrantholderβs behalf have complied and will comply with the βoffering
restrictionsβ requirements of Regulation S under the Securities
Act.
(7)Β The
transactions contemplated by this Agreement have not been pre-arranged
with a
buyer located in the United States or with a U.S. Person, and are not part
of a
plan or scheme to evade the registration requirements of the Securities
Act.
(8)Β Neither
Warrantholder nor any person acting on Warrantholderβs behalf has undertaken or
carried out any activity for the purpose of, or that could reasonably be
expected to have the effect of, conditioning the market in the United States,
its territories or possessions, for any of the Warrants and Warrant Shares.
Warrantholder agrees not to cause any advertisement of the Warrants and
Warrant
Shares to be published in any newspaper or periodical or posted in any
public
place and not to issue any circular relating to the Warrants and Warrant
Shares,
except such advertisements that include the statements required by Regulation
S
under the Securities Act, and only offshore and not in the U.S. or its
territories, and only in compliance with any local applicable securities
laws.
(9)Β Each
certificate representing the Warrants and Warrant Shares shall be endorsed
with
the following legends, in addition to any other legend required to be placed
thereon by applicable federal or state securities laws:
(A)Β βTHE
SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS (AS
DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (βTHE SECURITIES
ACTβ)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.β
(B)Β βTRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR PURSUANT
TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT BE
CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.β
(10)
Β Warrantholder
consents to the Company making a notation on its records or giving instructions
to any transfer agent of the Company in order to implement the restrictions
on
transfer of the Warrants and Warrant Shares set forth in this Section
11.
Β
Β
-6-
Β
Section
12. No
Rights or Liabilities as Stockholder.
Β
No
holder, as such, of any Warrant Certificate shall be entitled to vote,
receive
dividends or be deemed the holder of Common Stock which may at any time
be
issuable on the exercise of the Warrants represented thereby for any purpose
whatever, nor shall anything contained herein or in any Warrant Certificate
be
construed to confer upon the holder of any Warrant Certificate, 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 other actions affecting
stockholders or to receive dividend or subscription rights, or otherwise,
until
such Warrant Certificate shall have been exercised in accordance with the
provisions hereof and the receipt and collection of the Exercise Price
and any
other amounts payable upon such exercise by the Company. No provision hereof,
in
the absence of affirmative action by Warrantholder to purchase Warrant
Shares
shall give rise to any liability of such holder for the Exercise Price
or as a
stockholder of the Company, whether such liability is asserted by the Company
or
by creditors of the Company.
Β
Section
13. Fractional
Interests.
Β
The
Company shall not be required to issue fractional shares of Common Stock
upon
exercise of the Warrants or to distribute certificates that evidence fractional
shares of Common Stock. If any fraction of a Warrant Share would, except
for the
provisions of this Section 13, be issuable on the exercise of a Warrant,
the
number of Warrant Shares to be issued by the Company shall be rounded to
the
nearest whole number, with one-half or greater being rounded up.
Β
Section
14.Β Definitions.
Β
Unless
the context otherwise requires, the terms defined in this SectionΒ 15,
whenever used in this Agreement shall have the respective meanings hereinafter
specified and words in the singular or in the plural shall each include
the
singular and the plural and the use of any gender shall include all
genders.
Β
βBusiness
Dayβ
shall
mean any day on which banking institutions are generally open for business
in
Delaware.
Β
βCommon
Stockβ
means
the common stock of the Company.
Β
βExercise
Priceβ
shall
be the price per Warrant Share at which Warrantholder is entitled to purchase
Warrant Shares upon exercise of any Warrant determined in accordance with
Section 7 and subject to adjustment as provided in Sections 8 and 17
hereof.
Β
βPersonβ
shall
mean any corporation, association, partnership, limited liability company,
joint
venture, trust, organization, business, individual, government or political
subdivision thereof or governmental body.
Β
βSecurities
Actβ
shall
mean the Securities Act of 1933, as amended, or any similar federal statute
as
at the time in effect, and any reference to a particular section of such
Act
shall include a reference to the comparable section, if any, of such successor
federal statute.
Β
Β
-7-
Β
Β
Section
15. Notices.
Β
All
notices, consents, requests, waivers or other communications required or
permitted under this Agreement (each a βNoticeβ)
shall
be in writing and shall be sufficiently given (a)Β if hand delivered,
(b)Β if sent by nationally recognized overnight courier, or (c)Β if sent
by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
Β
if
to the
Company:
PCMT
Corporation
0
Xxxxxx
Xxxxxx
Xxxxxxxxx
Xxxxxx 00000
if
to
Warrantholder:
or
such
other address as shall be furnished by any of the parties hereto in a Notice.
Any Notice shall be deemed given upon receipt.
Β
Section
16.Β Supplements,
Amendments and Waivers.
Β
This
Agreement may be supplemented or amended only by a subsequent writing signed
by
each of the parties hereto (or their successors or permitted assigns),
and any
provision hereof may be waived only by a written instrument signed by the
party
charged therewith.
Β
Section
17.Β Successors
and Assigns.
Β
Except
as
otherwise provided herein, the provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
permitted assigns of the parties hereto. Warrants issued under this Agreement
may be assigned by Warrantholder only to the extent such assignment satisfies
the restrictions on transfer set forth in this Agreement; any attempted
assignment of Warrants in violation of the terms hereof shall be void
ab
initio.
Β
Section
18.Β Termination.
Β
This
Agreement (other than SectionsΒ 7C, 11, and Sections 16 through 27,
inclusive, and all related definitions, all of which shall survive such
termination) shall terminate on the earlier of (i) the Warrant Expiration
Date
and (ii) the date on which all Warrants have been exercised by the Warrantholder
or redeemed by the Company.
Β
Section
19.Β Governing
Law; Jurisdiction.
Β
A.Β Governing
Law.
This
Agreement and each Warrant Certificate issued hereunder shall be governed
by and
construed in accordance with the laws of the state of Delaware and the
federal
laws of the United States applicable herein.
Β
B.Β Submission
to Jurisdiction.
Each
party to this Agreement hereby irrevocably and unconditionally submits,
for
itself and its property, to the jurisdiction of the state of Delaware,
and any
appellate court from any thereof, in respect of actions brought against
it as a
defendant, in any action, suit or proceeding arising out of or relating
to this
Agreement or the Warrant Certificates and Warrants to be issued pursuant
hereto,
or for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect
of any such action, suit or proceeding may be heard and determined in such
courts. Each of the parties hereto agrees that a final judgment in any
such
action, suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
Β
Β
-8-
Β
Β
C.Β Venue.
Each
party hereto irrevocably and unconditionally waives, to the fullest extent
it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any action, suit or proceeding arising out
of or
relating to this Agreement, or the Warrant Certificates and Warrants to
be
issued pursuant hereto, in any court referred to in this Subsection B.
Each of
the parties hereby irrevocably waives, to the fullest extent permitted
by law,
the defense of an inconvenient forum to the maintenance of such action,
suit
proceeding in any such court and waives any other right to which it may
be
entitled on account of its place of residence or domicile.
Β
Section
20.Β Third
Party Beneficiaries.
Β
Each
party intends that this Agreement shall not benefit or create any right
or cause
of action in or on behalf of any Person other than the parties hereto and
their
successors and permitted assigns.
Β
Section
21. Headings.
Β
The
headings in this Agreement are for convenience only and shall not affect
the
construction or interpretation of this Agreement.
Β
Section
22. Entire
Agreement.
Β
This
Agreement, together with the Warrant Certificates and Exhibits, and the
Subscription Agreement, dated of even date herewith, by and between the
Company
and the Warrantholder, constitute the entire agreement and understanding
between
the parties hereto with respect to the subject matter hereof and shall
supersede
any prior agreements and understandings between the parties hereto with
respect
to such subject matter.
Β
Section
23.Β Expenses.
Β
Each
of
the parties hereto shall pay its own expenses and costs incurred or to
be
incurred in negotiating, closing and carrying out this Agreement and in
consummating the transactions contemplated herein, except as otherwise
expressly
provided for herein.
Β
Section
24. Neutral
Construction.
Β
The
parties to this Agreement agree that this Agreement was negotiated fairly
between them at armβs length and that the final terms of this Agreement are the
product of the partiesβ negotiations. Each party represents and warrants that it
has sought and received legal counsel of its own choosing with regard to
the
contents of this Agreement and the rights and obligations affected hereby.
The
parties agree that this Agreement shall be deemed to have been jointly
and
equally drafting by them, and that the provisions of this Agreement therefore
should not be construed against a party or parties on the grounds that
such
party or parties drafted or was more responsible for the drafting of any
such
provision(s).
Β
Β
-9-
Β
Β
Section
25.Β Representations
and Warranties.
Β
The
Company hereby represents and warrants to the Warrantholder that:
Β
(a)Β the
Company has all requisite corporate power and authority to (i) execute
and
deliver this Agreement and (ii) issue and sell the Common Stock upon the
conversion thereof and carry out provisions of this Agreement. All corporate
action on the part of the Company, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Agreement,
the
performance of all obligations of the Company hereunder, and the authorization
(or reservation for issuance), sale and issuance of the Common Stock to
be sold
hereunder has been taken or will be taken prior to the date hereof;
Β
(b)Β this
Agreement constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to
application affecting enforcement of creditorβs rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief of other equitable remedies;
Β
(c)Β the
Common Stock issuable upon the conversion thereof that is being purchased
hereunder, when issued, sold and delivered in accordance with the terms
of this
Agreement for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable and will be free of restrictions on
transfer, other than restrictions on transfer under applicable state and
federal
securities laws;
Β
(d)Β subject
in part to the truth and accuracy of Warrantholderβs representations set forth
in Section 11 of this Agreement, the offer, sale and issuance of the Common
Stock issuable upon the conversion thereof as contemplated by this Agreement
are
exempt from the registration requirements of the Securities Act and the
qualification or registration requirements of any state securities or other
applicable blue sky laws; and
Β
(e)Β the
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby will not result in any such violation,
or
be in conflict with or constitute, with or without the passage of time
and
giving of notice, either a default under any such provision or an event
that
results in creation of any lien, charge or encumbrance upon any assets
of the
Company or the suspension, revocation, impairment, forfeiture or nonremoval
of
any material permit, license, authorization or approval applicable to the
Company, its business or operations or any of its assets or
properties.
Β
Section
26.Β Counterparts.
Β
This
Agreement may be executed in counterparts and by facsimile and each such
counterpart shall for all purposes be deemed to be an original, and all
such
counterparts shall together constitute but one and the same
instrument.
Β
Β
-10-
Β
Β
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
Β
Β | Β | Β |
Β | PCMT CORPORATION. | |
Β Β |
Β Β |
Β Β |
Β | By:Β Β | Β |
Β |
Name:
|
|
Β |
Title:
|
Β
Β | Β | Β |
Β | [WARRANTHOLDER] | |
Β Β |
Β Β |
Β Β |
Β | By:Β Β | Β |
Β |
Name:
|
|
Β |
Title:
|
Β
Β
-11-
Β
EXHIBITΒ 1
Β
WARRANT
FORM
Β
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE.
THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH ACT
AND
LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS
AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH, A CLASS
A
WARRANT AGREEMENT BETWEEN PCMT CORPORATION AND THE HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
UPON
WRITTEN REQUEST TO THE COMPANY.
Β
NO.Β Β Β Β Β Β |
_______
CLASS A
WARRANTS
|
Β
FORM
OF
Β
Class
A Warrant Certificate
Β
PCMT
CORPORATION.
Β
This
Warrant Certificate certifies that __________________ (the βWarrantholderβ),
is
the registered holder of _____________ Class A Warrants (the βWarrantsβ)
to
purchase shares (the βWarrant
Sharesβ)
of
Common Stock of PCMT Corporation (the βCompanyβ).
Each
Warrant entitles the holder, subject to the satisfaction of the conditions
to
exercise set forth in Section 7 of the Warrant Agreement referred to below,
to
purchase from the Company at any time or from time to time on and after
_________(the βWarrant
Commencement Dateβ)
and
terminate on or prior to 5:00 p.m., Eastern time, on _________________
(the
βWarrant
Expiration Dateβ)
one
fully paid and nonassessable Warrant Share at the Exercise Price set forth
in
the Warrant Agreement. The number of Warrant Shares for which each Warrant
is
exercisable and the Exercise Price are subject to adjustment as provided
in the
Warrant Agreement.
Β
The
Warrants evidenced by this Warrant Certificate areΒ part of a duly
authorized issue of Warrants to purchase Warrant Shares and are issued
pursuant
to a Class A Warrant Agreement, dated as of ________________ (the βWarrant
Agreementβ),
between the Company and the Warrantholder, which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is
hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Company and Warrantholder.
Β
Warrantholder
may exercise vested Warrants by surrendering this Warrant Certificate,
with the
Election to Purchase attached hereto properly completed and executed, together
with payment of the aggregate Exercise Price, at the offices of the Company
specified in Section 16 of the Warrant Agreement. If upon any exercise
of
Warrants evidenced hereby the number of Warrants exercised shall be less
than
the total number of Warrants evidenced hereby, there shall be issued to
the
holder hereof orΒ its assignee a new Warrant Certificate evidencing the
number of Warrants not exercised.
Β
Β
Β
Β
Β
This
Warrant Certificate, when surrendered at the offices of the Company specified
in
Section 16 of the Warrant Agreement, by the registered holder thereof in
person,
by legal representative or by attorney duly authorized in writing, may
be
exchanged, in the manner and subject to the limitations provided in the
Warrant
Agreement, for one or more other Warrant Certificates of like tenor evidencing
in the aggregate a like number of Warrants.
Β
The
Company may deem and treat the registered holder hereof as the absolute
owner of
this Warrant Certificate (notwithstanding any notation of ownership or
other
writing hereon made by anyone), for the purpose of any exercise hereof
and for
all other purposes, and the Company shall not be affected by any notice
to the
contrary.
Β
WITNESS
the signatures of the duly authorized officers of the Company.
Β
Dated:
_____________Β
Β
Β | Β | Β |
Β | PCMT CORPORATION | |
Β Β |
Β Β |
Β Β |
Β | By:Β Β | Β |
Β |
Name: |
|
Β | Title: |
Β
Β
1-ii
Β
Exhibit
2
Β
Form
of Election to Purchase
Β
The
undersigned hereby irrevocably elects to exercise _________ of the Class
A
Warrants evidenced by the attached Warrant Certificate to purchase Warrant
Shares, and herewith tenders (or is concurrently tendering) payment for
such
Warrant Shares in an amount determined in accordance with the terms of
the
Warrant Agreement. The undersigned requests that a certificate representing
such
Warrant Shares be registered in the name of _________________,
whose
address is _________________________and
that
such certificate be delivered to _______________,
whose
address is _______________.
If said
number of Warrants is less than the number of Warrants evidenced by the
Warrant
Certificate (as calculated pursuant to the Warrant Agreement), the undersigned
requests that a new Warrant Certificate evidencing the number of Warrants
evidenced by this Warrant Certificate that are not being exercised be registered
in the name of _______________,
whose
address is ________________and
that
such Warrant Certificate be delivered to ____________,
whose
address is _________________________.
Β
Β
Β
Β |
Dated:
Β Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ,
Β Β
Β Β
Name
of holder of Warrant Certificate:
_____________________________
Β
_____________________________
(Please
Print)
Address:______________________
Β
_____________________________
Federal
Tax ID No.:______________
Signature:_____________________
|
|
Β | Β | Β |
Β | Note: | The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed. |
Dated:
Β Β Β Β Β Β Β Β Β Β Β Β Β
Β ,
Β Β
Β
Β
Β
Β
Β
CLASS
B
WARRANT AGREEMENT
Β
CLASS
B
WARRANT AGREEMENT (βAgreementβ),
dated
as of November __, 2007, by and between PCMT Corporation, a Delaware
corporation
(the βCompanyβ),
and
____________________ (βWarrantholderβ).
Certain capitalized terms used herein are defined in Section 15
hereof.
Β
In
consideration of the mutual terms, conditions, representations, warranties
and
agreements herein set forth, and for other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, the parties
hereto
hereby agree as follows:
Β
Section
1.Β Issuance
of Warrants.
Β
The
Company hereby issues and grants to Warrantholder ________ (_______)
stock
purchase warrants, which are hereby designated and shall be known as
βClass
B
Warrantsβ (hereinafter referred to as βWarrantsβ).
Each
Warrant shall grant to the holder thereof the right to purchase one
(1) share of
common stock of the Company (the βCommon
Stockβ).
Commencing on ____________ date hereof (the βWarrant
Commencement Dateβ),
and
terminating three year from the date of such issuance (the βWarrant
Expiration Dateβ),
the
holder shall have the right, subject to the satisfaction of the conditions
to
exercise set forth in Section 7 of this Agreement, to purchase one
(1) share of
Common Stock per each Warrant (the shares of Common Stock issuable
upon exercise
of the Warrants being collectively referred to herein as the βWarrant
Sharesβ)
at an
exercise price of $0.375 per Warrant Share (the βExercise
Priceβ).
The
number of Warrant Shares issuable on exercise of each Warrant and the
Exercise
Price are all subject to adjustment pursuant to Section 8 of this Agreement.
Β
Section
2.Β Form
of Warrant Certificates.
Β
Promptly
after the execution and delivery of this Agreement by the parties hereto,
the
Company may, in its sole and absolute discretion, cause to be executed
and
delivered to Warrantholder one or more certificates evidencing the
Warrants (the
βWarrant
Certificatesβ).
Each
Warrant Certificate delivered hereunder shall be substantially in the
form set
forth in Exhibit
1 - Warrant FormΒ attached
hereto and may have such letters, numbers or other identification marks
and
legends, summaries or endorsements printed thereon as the Company may
deem
appropriate and that are not inconsistent with the terms of this Agreement
or as
may be required by applicable law, rule or regulation. Each Warrant
Certificate
shall be dated the date of execution by the Company.
Β
Section
3.Β Execution
of Warrant Certificates.
Β
Each
Warrant Certificate delivered hereunder shall be signed on behalf of
the Company
by at least one of the following: its Chief Executive Officer, President,
Vice
President, Secretary or Assistant Secretary. Each such signature may
be in the
form of a facsimile thereof and may be imprinted or otherwise reproduced
on the
Warrant Certificates.
Β
If
any
officer of the Company who signed any Warrant Certificate ceases to
be an
officer of the Company before the Warrant Certificate so signed shall
have been
delivered by the Company, such Warrant Certificate nevertheless may
be delivered
as though such person had not ceased to be such officer of the
Company.
Β
Β
Β
Β
Β
Section
4.Β Registration
of Ownership and Transfer.
Β
Warrant
Certificates shall be issued in registered form only. The Company will
keep or
cause to be kept books for registration of ownership and transfer of
each
Warrant Certificate issued pursuant to this Agreement. Each Warrant
Certificate
issued pursuant to this Agreement shall be numbered by the Company
and shall be
registered by the Company in the name of the holder thereof (initially
the
Warrantholder). The Company may deem and treat the registered holder
of any
Warrant Certificate as the absolute owner thereof (notwithstanding
any notation
of ownership or other writing thereon made by anyone) for the purpose
of any
exercise thereof and for all other purposes, and the Company shall
not be
affected by any notice to the contrary.
Β
Section
5.Β No
Transfers.
Β
No
Warrant may be sold, pledged, hypothecated, assigned, conveyed, transferred
or
otherwise disposed of without the agreement of the Company, which will
not be
unreasonably withheld.
Β
Section
6.Β Mutilated
or Missing Warrant Certificates.
Β
If
any
Warrant Certificate is mutilated, lost, stolen or destroyed, the Company
shall
issue, upon surrender and cancellation of any mutilated Warrant Certificate,
or
in lieu of and substitution for any lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of like tenor and representing
an equal
number of Warrants. In the case of a lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate shall be issued by the Company
only upon
the Companyβs receipt of reasonably satisfactory evidence of such loss, theft or
destruction and, if requested, an indemnity or bond reasonably satisfactory
to
the Company.
Β
Section
7. Exercise
of Warrants.
Β
A.Β Exercise.
Subject
to the terms and conditions set forth in this Section 7, Warrants may
be
exercised, in whole or in part (but not as to any fractional part of
a Warrant),
at any time or from time to time on and after the Warrant Commencement
Date and
on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration
Date.
Β
In
order
to exercise any Warrant, Warrantholder shall deliver to the Company
at its
office referred to in SectionΒ 16 the following: (i)Β a written notice
in the form of the Election to Purchase appearing at the end of the
form of
Warrant Certificate attached as Exhibit
2 - Form of Election to Purchase hereto
of
such Warrantholderβs election to exercise the Warrants, which notice shall
specify the number of such Warrantholderβs Warrants being exercised;
(ii)Β the Warrant Certificate or Warrant Certificates, if any, evidencing
the Warrants being exercised; and (iii) payment of the aggregate Exercise
Price.
Β
All
rights of Warrantholder with respect to any Warrant that has not been
exercised,
on or prior to 5:00 p.m., Eastern time, on the Warrant Expiration Date
shall
immediately cease and such Warrants shall be automatically cancelled
and
void.
Β
B.Β Payment
of Exercise Price.
Payment
of the Exercise Price with respect to Warrants being exercised hereunder
shall
be made by the payment to the Company, in cash, by check or wire transfer,
of an
amount equal to the Exercise Price multiplied by the number of Warrants
then
being exercised.
Β
C.Β Payment
of Taxes.
The
Company shall be responsible for paying any and all issue, documentary,
stamp or
other taxes that may be payable in respect of any issuance or delivery
of
Warrant Shares on exercise of a Warrant. Notwithstanding anything contained
herein to the contrary, the Warrantholder shall be responsible for
all taxes
that may be due and payable by the Warrantholder as a result of the
issuance of
this Warrant to the Warrantholder or as a result of the issuance of
the Warrant
Shares upon due exercise hereof.
Β
Β
-2-
Β
Β
D.Β Delivery
of Warrant Shares.
Upon
receipt of the items referred to in Section 7A, the Company shall,
as promptly
as practicable, execute and deliver or cause to be executed and delivered,
to or
upon the written order of Warrantholder, and in the name of Warrantholder
or
Warrantholderβs designee, a stock certificate or stock certificates representing
the number of Warrant Shares to be issued on exercise of the Warrant(s).
If the
Warrant Shares shall in accordance with the terms thereof have become
automatically convertible into shares of the Companyβs Common Stock prior to the
time a Warrant is exercised, the Company shall in lieu of issuing shares
of
Common Stock, issue to the Warrantholder or its designee on exercise
of such
Warrant, a stock certificate or stock certificates representing the
number of
shares of Common Stock into which the Warrant Shares issuable on exercise
of
such Warrant are convertible. The certificates issued to Warrantholder
or its
designee shall bear any restrictive legend required under applicable
law, rule
or regulation. The stock certificate or certificates so delivered shall
be
registered in the name of Warrantholder or such other name as shall
be
designated in said notice. A Warrant shall be deemed to have been exercised
and
such stock certificate or stock certificates shall be deemed to have
been
issued, and such holder or any other Person so designated to be named
therein
shall be deemed to have become a holder of record of such shares for
all
purposes, as of the date that such notice, together with payment of
the
aggregate Exercise Price and the Warrant Certificate or Warrant Certificates
evidencing the Warrants to be exercised, is received by the Company
as
aforesaid. If the Warrants evidenced by any Warrant Certificate are
exercised in
part, the Company shall, at the time of delivery of the stock certificates,
deliver to the holder thereof a new Warrant Certificate evidencing
the Warrants
that were not exercised or surrendered, which shall in all respects
(other than
as to the number of Warrants evidenced thereby) be identical to the
Warrant
Certificate being exercised. Any Warrant Certificates surrendered upon
exercise
of Warrants shall be canceled by the Company.
Β
Section
8. Adjustment
of Number of Warrant Shares Issuable Upon Exercise of a Warrant and
Adjustment
of Exercise Price.
Β
A.Β Adjustment
for Stock Splits, Stock Dividends, Recapitalizations.
The
number of Warrant Shares issuable upon exercise of each Warrant and
the Exercise
Price shall each be proportionately adjusted to reflect any stock dividend,
stock split, reverse stock split, recapitalization or the like affecting
the
number of outstanding shares of Common Stock that occurs after the
date hereof.
Β
B.Β Adjustments
for Reorganization, Consolidation, Merger.
If
after the date hereof, the Company (or any other entity, the stock
or other
securities of which are at the time receivable on the exercise of the
Warrants),
consolidates with or merges into another entity or conveys all or substantially
all of its assets to another entity, then, in each such case, Warrantholder,
upon any permitted exercise of a Warrant (as provided in Section 7),
at any time
after the consummation of such reorganization, consolidation, merger
or
conveyance, shall be entitled to receive, inΒ lieu
of
the stock or other securities and property receivable upon the exercise
of the
Warrant prior to such consummation, the stock or other securities or
property to
which such Warrantholder would have been entitled upon the consummation
of such
reorganization, consolidation, merger or conveyance if such Warrantholder
had
exercised the Warrant immediately prior thereto, all subject to further
adjustment as provided in this Section 8. The successor or purchasing
entity in
any such reorganization, consolidation, merger or conveyance (if other
than the
Company) shall duly execute and deliver to Warrantholder a written
acknowledgment of such entityβs obligations under the Warrants and this
Agreement.
Β
Β
-3-
Β
Β
C.Β Notice
of Certain Events.
Β
Upon
the
occurrence of any event resulting in an adjustment in the number of
Warrant
Shares (or other stock or securities or property) receivable upon the
exercise
of the Warrants or the Exercise Price, the Company shall promptly thereafter
(i)
compute such adjustment in accordance with the terms of the Warrants,
(ii)
prepare a certificate setting forth such adjustment and showing in
detail the
facts upon which such adjustment is based, and (iii) mail copies of
such
certificate to Warrantholder.
Β
Section
9. Reservation
of Shares.
Β
The
Company shall at all times reserve and keep available, free from preemptive
rights, out of the aggregate of its authorized but unissued Common
Stock, or its
authorized and issued Common Stock held in its treasury, the aggregate
number of
the Warrant Shares deliverable upon the exercise of all outstanding
Warrants,
for the purpose of enabling it to satisfy any obligation to issue the
Warrant
Shares upon the due and punctual exercise of the Warrants, through
5:00 p.m.,
Eastern time, on the Warrant Expiration Date.
Β
Section
10. No
Impairment.
Β
The
Company shall not, by amendment of its certificate of incorporation
or bylaws,
or through reorganization, consolidation, merger, dissolution, issuance
or sale
of securities, sale of assets or any other voluntary action, willfully
avoid or
seek to avoid the observance or performance of any of the terms of
the Warrants
or this Agreement, and 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 in order to protect the rights of Warrantholder under
the
Warrants and this Agreement against wrongful impairment. Without limiting
the
generality of the foregoing, the Company: (i) shall not set or increase
the par
value of any Warrant Shares above the amount payable therefor upon
exercise, and
(ii) shall take all actions that are necessary or appropriate in order
that the
Company may validly and legally issue fully paid and nonassessable
Warrant
Shares upon the exercise of the Warrants.
Β
Section
11. Representations
and Warranties of Warrantholder.
Β
Warrantholder
represents and warrants to the Company that, on the date hereof and
on the date
the Warrantholder exercises the Warrant pursuant to the terms of this
Agreement:
Β
A.
Β Warrantholder
understands that the Warrants and the Warrant Shares have not been
registered
under the Securities Act and acknowledges that the Warrants and the
Warrant
Shares must be held indefinitely unless they are subsequently registered
under
the Securities Act or an exemption from such registration becomes available.
Β
B.
Β Warrantholder
is acquiring the Warrants for Warrantholderβs own account for investment and not
with a view to, or for sale in connection with, any distribution
thereof.
Β
C.
Β Warrantholder
understands that the Warrants and the Warrant Shares are being offered
and sold
to him in reliance on an exemption from the registration requirements
of United
States federal and state securities laws under Regulation S promulgated
under
the Securities Act and that the Company is relying upon the truth and
accuracy
of the representations, warranties, agreements, acknowledgments and
understandings of the Warrantholder set forth herein in order to determine
the
applicability of such exemptions and the suitability of the Warrantholder
to
acquire the Warrants and Warrant Shares. In this regard, Warrantholder
represents, warrants and agrees that:
Β
Β
-4-
Β
(1)
Β Warrantholder
is not a U.S. Person (as defined below) and is not an affiliate (as
defined in
Rule 501(b) under the Securities Act) of the Company and is not acquiring
the
Warrants and Warrant Shares for the account or benefit of a U.S. Person.
A U.S.
Person means any one of the following:
(A)
Β any
natural person resident in the United States of America;
(B)
Β any
partnership or corporation organized or incorporated under the laws
of the
United States of America;
(C)Β any
estate of which any executor or administrator is a U.S. person;
(D)Β any
trust
of which any trustee is a U.S. person;
(E)Β any
agency or branch of a foreign entity located in the United States of
America;
(F)Β any
non-discretionary account or similar account (other than an estate
or trust)
held by a dealer or other fiduciary for the benefit or account of a
U.S.
person;
(G)Β any
discretionary account or similar account (other than an estate or trust)
held by
a dealer or other fiduciary organized, incorporated or (if an individual)
resident in the United States of America; and
(H)Β any
partnership or corporation if:
(i)
organized or incorporated under the laws of any foreign jurisdiction;
and
(ii)
Β formed
by
a U.S. person principally for the purpose of investing in securities
not
registered under the Securities Act, unless it is organized or incorporated,
and
owned, by accredited investorsΒ (as
defined in Rule 501(a) under the Securities Act) who are not natural
persons,
estates or trusts.
(2)
Β At
the
time of the origination of contact concerning this Agreement and the
date of the
execution and delivery of this Agreement, Warrantholder was outside
of the
United States.
(3)Β Warrantholder
will not, during the period commencing on the date of issuance of the
Warrants
and Warrant Shares and ending on the first anniversary of such date,
or such
shorter period as may be permitted by Regulation S or other applicable
securities law (the βRestricted Periodβ), offer, sell, pledge or otherwise
transfer the Warrants and Warrant Shares in the United States, or to
a U.S.
Person for the account or for the benefit of a U.S. Person, or otherwise
in a
manner that is not in compliance with Regulation S.
Β
Β
-5-
Β
(4)Β Warrantholder
will, after expiration of the Restricted Period, offer, sell, pledge
or
otherwise transfer the Warrants and Warrant Shares only pursuant to
registration
under the Securities Act or an available exemption therefrom and, in
accordance
with all applicable state and foreign securities laws and this
Agreement.
(5)Β Warrantholder
was not in the United States, engaged in, and prior to the expiration
of the
Restricted Period will not engage in, any short selling of or any hedging
transaction with respect to the Warrants and Warrant Shares, including
without
limitation, any put, call or other option transaction, option writing
or equity
swap.
(6)Β Neither
Warrantholder nor or any person acting on Warrantholderβs behalf has engaged,
nor will engage, in any directed selling efforts to a U.S. Person with
respect
to the Warrants and Warrant Shares and the Warrantholder and any person
acting
on Warrantholderβs behalf have complied and will comply with the βoffering
restrictionsβ requirements of Regulation S under the Securities
Act.
(7)Β The
transactions contemplated by this Agreement have not been pre-arranged
with a
buyer located in the United States or with a U.S. Person, and are not
part of a
plan or scheme to evade the registration requirements of the Securities
Act.
(8)Β Neither
Warrantholder nor any person acting on Warrantholderβs behalf has undertaken or
carried out any activity for the purpose of, or that could reasonably
be
expected to have the effect of, conditioning the market in the United
States,
its territories or possessions, for any of the Warrants and Warrant
Shares.
Warrantholder agrees not to cause any advertisement of the Warrants
and Warrant
Shares to be published in any newspaper or periodical or posted in
any public
place and not to issue any circular relating to the Warrants and Warrant
Shares,
except such advertisements that include the statements required by
Regulation S
under the Securities Act, and only offshore and not in the U.S. or
its
territories, and only in compliance with any local applicable securities
laws.
(9)Β Each
certificate representing the Warrants and Warrant Shares shall be endorsed
with
the following legends, in addition to any other legend required to
be placed
thereon by applicable federal or state securities laws:
(A)Β βTHE
SECURITIES ARE BEING OFFERED TO INVESTORS WHO ARE NOT U.S. PERSONS
(AS DEFINED
IN REGULATION S UNDER THE SECURITIES ACT OF 1933, AS AMENDED (βTHE SECURITIES
ACTβ)) AND WITHOUT REGISTRATION WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE SECURITIES ACT IN RELIANCE UPON REGULATION S PROMULGATED
UNDER THE SECURITIES ACT.β
(B)Β βTRANSFER
OF THESE SECURITIES IS PROHIBITED, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF
REGULATION S, PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT, OR
PURSUANT TO
AVAILABLE EXEMPTION FROM REGISTRATION. HEDGING TRANSACTIONS MAY NOT
BE CONDUCTED
UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.β
(10)
Β Warrantholder
consents to the Company making a notation on its records or giving
instructions
to any transfer agent of the Company in order to implement the restrictions
on
transfer of the Warrants and Warrant Shares set forth in this Section
11.
Β
Β
-6-
Β
Section
12. No
Rights or Liabilities as Stockholder.
Β
No
holder, as such, of any Warrant Certificate shall be entitled to vote,
receive
dividends or be deemed the holder of Common Stock which may at any
time be
issuable on the exercise of the Warrants represented thereby for any
purpose
whatever, nor shall anything contained herein or in any Warrant Certificate
be
construed to confer upon the holder of any Warrant Certificate, 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 other actions affecting
stockholders or to receive dividend or subscription rights, or otherwise,
until
such Warrant Certificate shall have been exercised in accordance with
the
provisions hereof and the receipt and collection of the Exercise Price
and any
other amounts payable upon such exercise by the Company. No provision
hereof, in
the absence of affirmative action by Warrantholder to purchase Warrant
Shares
shall give rise to any liability of such holder for the Exercise Price
or as a
stockholder of the Company, whether such liability is asserted by the
Company or
by creditors of the Company.
Β
Section
13. Fractional
Interests.
Β
The
Company shall not be required to issue fractional shares of Common
Stock upon
exercise of the Warrants or to distribute certificates that evidence
fractional
shares of Common Stock. If any fraction of a Warrant Share would, except
for the
provisions of this Section 13, be issuable on the exercise of a Warrant,
the
number of Warrant Shares to be issued by the Company shall be rounded
to the
nearest whole number, with one-half or greater being rounded up.
Β
Section
14. Definitions.
Β
Unless
the context otherwise requires, the terms defined in this SectionΒ 15,
whenever used in this Agreement shall have the respective meanings
hereinafter
specified and words in the singular or in the plural shall each include
the
singular and the plural and the use of any gender shall include all
genders.
Β
βBusiness
Dayβ
shall
mean any day on which banking institutions are generally open for business
in
Delaware.
Β
βCommon
Stockβ
means
the common stock of the Company.
Β
βExercise
Priceβ
shall
be the price per Warrant Share at which Warrantholder is entitled to
purchase
Warrant Shares upon exercise of any Warrant determined in accordance
with
Section 7 and subject to adjustment as provided in Sections 8 and 17
hereof.
Β
βPersonβ
shall
mean any corporation, association, partnership, limited liability company,
joint
venture, trust, organization, business, individual, government or political
subdivision thereof or governmental body.
Β
βSecurities
Actβ
shall
mean the Securities Act of 1933, as amended, or any similar federal
statute as
at the time in effect, and any reference to a particular section of
such Act
shall include a reference to the comparable section, if any, of such
successor
federal statute.
Β
Β
-7-
Β
Β
Section
15. Notices.
Β
All
notices, consents, requests, waivers or other communications required
or
permitted under this Agreement (each a βNoticeβ)
shall
be in writing and shall be sufficiently given (a)Β if hand delivered,
(b)Β if sent by nationally recognized overnight courier, or (c)Β if sent
by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
Β
if
to the
Company:
PCMT
Corporation
0
Xxxxxx
Xxxxxx
Xxxxxxxxx
Xxxxxx 00000
if
to
Warrantholder:
or
such
other address as shall be furnished by any of the parties hereto in
a Notice.
Any Notice shall be deemed given upon receipt.
Β
Section
16. Supplements,
Amendments and Waivers.
Β
This
Agreement may be supplemented or amended only by a subsequent writing
signed by
each of the parties hereto (or their successors or permitted assigns),
and any
provision hereof may be waived only by a written instrument signed
by the party
charged therewith.
Β
Section
17. Successors
and Assigns.
Β
Except
as
otherwise provided herein, the provisions of this Agreement shall be
binding
upon and inure to the benefit of and be enforceable by the successors
and
permitted assigns of the parties hereto. Warrants issued under this
Agreement
may be assigned by Warrantholder only to the extent such assignment
satisfies
the restrictions on transfer set forth in this Agreement; any attempted
assignment of Warrants in violation of the terms hereof shall be void
ab
initio.
Β
Section
18. Termination.
Β
This
Agreement (other than SectionsΒ 7C, 11, and Sections 16 through 27,
inclusive, and all related definitions, all of which shall survive
such
termination) shall terminate on the earlier of (i) the Warrant Expiration
Date
and (ii) the date on which all Warrants have been exercised by the
Warrantholder
or redeemed by the Company.
Β
Section
19. Governing
Law; Jurisdiction.
Β
A.Β Governing
Law.
This
Agreement and each Warrant Certificate issued hereunder shall be governed
by and
construed in accordance with the laws of the state of Delaware and
the federal
laws of the United States applicable herein.
Β
B.Β Submission
to Jurisdiction.
Each
party to this Agreement hereby irrevocably and unconditionally submits,
for
itself and its property, to the jurisdiction of the state of Delaware,
and any
appellate court from any thereof, in respect of actions brought against
it as a
defendant, in any action, suit or proceeding arising out of or relating
to this
Agreement or the Warrant Certificates and Warrants to be issued pursuant
hereto,
or for recognition or enforcement of any judgment, and each of the
parties
hereto hereby irrevocably and unconditionally agrees that all claims
in respect
of any such action, suit or proceeding may be heard and determined
in such
courts. Each of the parties hereto agrees that a final judgment in
any such
action, suit or proceeding shall be conclusive and may be enforced
in other
jurisdictions by suit on the judgment or in any other manner provided
by
law.
Β
Β
-8-
Β
Β
C.Β Venue.
Each
party hereto irrevocably and unconditionally waives, to the fullest
extent it
may legally and effectively do so, any objection which it may now or
hereafter
have to the laying of venue of any action, suit or proceeding arising
out of or
relating to this Agreement, or the Warrant Certificates and Warrants
to be
issued pursuant hereto, in any court referred to in this Subsection
B. Each of
the parties hereby irrevocably waives, to the fullest extent permitted
by law,
the defense of an inconvenient forum to the maintenance of such action,
suit
proceeding in any such court and waives any other right to which it
may be
entitled on account of its place of residence or domicile.
Β
Section
20. Third
Party Beneficiaries.
Β
Each
party intends that this Agreement shall not benefit or create any right
or cause
of action in or on behalf of any Person other than the parties hereto
and their
successors and permitted assigns.
Β
Section
21. Headings.
Β
The
headings in this Agreement are for convenience only and shall not affect
the
construction or interpretation of this Agreement.
Β
Section
22. Entire
Agreement.
Β
This
Agreement, together with the Warrant Certificates and Exhibits, and
the
Subscription Agreement, dated of even date herewith, by and between
the Company
and the Warrantholder, constitute the entire agreement and understanding
between
the parties hereto with respect to the subject matter hereof and shall
supersede
any prior agreements and understandings between the parties hereto
with respect
to such subject matter.
Β
Section
23. Expenses.
Β
Each
of
the parties hereto shall pay its own expenses and costs incurred or
to be
incurred in negotiating, closing and carrying out this Agreement and
in
consummating the transactions contemplated herein, except as otherwise
expressly
provided for herein.
Β
Section
24. Neutral
Construction.
Β
The
parties to this Agreement agree that this Agreement was negotiated
fairly
between them at armβs length and that the final terms of this Agreement are the
product of the partiesβ negotiations. Each party represents and warrants that it
has sought and received legal counsel of its own choosing with regard
to the
contents of this Agreement and the rights and obligations affected
hereby. The
parties agree that this Agreement shall be deemed to have been jointly
and
equally drafting by them, and that the provisions of this Agreement
therefore
should not be construed against a party or parties on the grounds that
such
party or parties drafted or was more responsible for the drafting of
any such
provision(s).
Β
Β
-9-
Β
Β
Section
25. Representations
and Warranties.
Β
The
Company hereby represents and warrants to the Warrantholder that:
Β
(a)Β the
Company has all requisite corporate power and authority to (i) execute
and
deliver this Agreement and (ii) issue and sell the Common Stock upon
the
conversion thereof and carry out provisions of this Agreement. All
corporate
action on the part of the Company, its officers, directors and stockholders
necessary for the authorization, execution and delivery of this Agreement,
the
performance of all obligations of the Company hereunder, and the authorization
(or reservation for issuance), sale and issuance of the Common Stock
to be sold
hereunder has been taken or will be taken prior to the date hereof;
Β
(b)Β this
Agreement constitutes a valid and legally binding obligation of the
Company,
enforceable in accordance with its terms, except (i) as limited by
applicable
bankruptcy, insolvency, reorganization, moratorium and other laws relating
to
application affecting enforcement of creditorβs rights generally and (ii) as
limited by laws relating to the availability of specific performance,
injunctive
relief of other equitable remedies;
Β
(c)Β the
Common Stock issuable upon the conversion thereof that is being purchased
hereunder, when issued, sold and delivered in accordance with the terms
of this
Agreement for the consideration expressed herein, will be duly and
validly
issued, fully paid and nonassessable and will be free of restrictions
on
transfer, other than restrictions on transfer under applicable state
and federal
securities laws;
Β
(d)Β subject
in part to the truth and accuracy of Warrantholderβs representations set forth
in Section 11 of this Agreement, the offer, sale and issuance of the
Common
Stock issuable upon the conversion thereof as contemplated by this
Agreement are
exempt from the registration requirements of the Securities Act and
the
qualification or registration requirements of any state securities
or other
applicable blue sky laws; and
Β
(e)Β the
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby will not result in any such violation,
or
be in conflict with or constitute, with or without the passage of time
and
giving of notice, either a default under any such provision or an event
that
results in creation of any lien, charge or encumbrance upon any assets
of the
Company or the suspension, revocation, impairment, forfeiture or nonremoval
of
any material permit, license, authorization or approval applicable
to the
Company, its business or operations or any of its assets or
properties.
Β
Section
26. Counterparts.
Β
This
Agreement may be executed in counterparts and by facsimile and each
such
counterpart shall for all purposes be deemed to be an original, and
all such
counterparts shall together constitute but one and the same
instrument.
Β
Β
-10-
Β
Β
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly
executed as of the day and year first above written.
Β
Β | Β | Β |
Β | PCMT CORPORATION. | |
Β Β |
Β Β |
Β Β |
Β | By:Β Β | Β |
Β |
Name:
|
|
Β |
Title:
|
Β
Β | Β | Β |
Β | [WARRANTHOLDER] | |
Β Β |
Β Β |
Β Β |
Β | By:Β Β | Β |
Β |
Name:
|
|
Β |
Title:
|
Β
Β
-11-
Β
EXHIBITΒ 1
Β
WARRANT
FORM
Β
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE.
THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, ASSIGNED,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH SUCH
ACT AND
LAWS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE TERMS
AND CONDITIONS OF, AND MAY ONLY BE TRANSFERRED IN ACCORDANCE WITH,
A CLASS B
WARRANT AGREEMENT BETWEEN PCMT CORPORATION AND THE HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE. COPIES OF SUCH AGREEMENT MAY BE OBTAINED
UPON
WRITTEN REQUEST TO THE COMPANY.
Β
NO.Β Β Β Β Β Β |
_______
CLASS B
WARRANTSΒ
|
Β
FORM
OF
Β
Class
B Warrant Certificate
Β
PCMT
CORPORATION.
Β
This
Warrant Certificate certifies that __________________ (the βWarrantholderβ),
is
the registered holder of _____________ Class B Warrants (the βWarrantsβ)
to
purchase shares (the βWarrant
Sharesβ)
of
Common Stock of PCMT Corporation (the βCompanyβ).
Each
Warrant entitles the holder, subject to the satisfaction of the conditions
to
exercise set forth in Section 7 of the Warrant Agreement referred to
below, to
purchase from the Company at any time or from time to time on and after
_________(the βWarrant
Commencement Dateβ)
and
terminate on or prior to 5:00 p.m., Eastern time, on _________________
(the
βWarrant
Expiration Dateβ)
one
fully paid and nonassessable Warrant Share at the Exercise Price set forth in
the Warrant Agreement. The number of Warrant Shares for which each
Warrant is
exercisable and the Exercise Price are subject to adjustment as provided
in the
Warrant Agreement.
Β
The
Warrants evidenced by this Warrant Certificate areΒ part of a duly
authorized issue of Warrants to purchase Warrant Shares and are issued
pursuant
to a Class B Warrant Agreement, dated as of ________________ (the βWarrant
Agreementβ),
between the Company and the Warrantholder, which Warrant Agreement
is hereby
incorporated by reference in and made a part of this instrument and
is hereby
referred to for a description of the rights, limitation of rights,
obligations,
duties and immunities thereunder of the Company and Warrantholder.
Β
Warrantholder
may exercise vested Warrants by surrendering this Warrant Certificate,
with the
Election to Purchase attached hereto properly completed and executed,
together
with payment of the aggregate Exercise Price, at the offices of the
Company
specified in Section 16 of the Warrant Agreement. If upon any exercise
of
Warrants evidenced hereby the number of Warrants exercised shall be
less than
the total number of Warrants evidenced hereby, there shall be issued
to the
holder hereof orΒ its assignee a new Warrant Certificate evidencing the
number of Warrants not exercised.
Β
Β
Β
Β
Β
This
Warrant Certificate, when surrendered at the offices of the Company
specified in
Section 16 of the Warrant Agreement, by the registered holder thereof
in person,
by legal representative or by attorney duly authorized in writing,
may be
exchanged, in the manner and subject to the limitations provided in
the Warrant
Agreement, for one or more other Warrant Certificates of like tenor
evidencing
in the aggregate a like number of Warrants.
Β
The
Company may deem and treat the registered holder hereof as the absolute
owner of
this Warrant Certificate (notwithstanding any notation of ownership
or other
writing hereon made by anyone), for the purpose of any exercise hereof
and for
all other purposes, and the Company shall not be affected by any notice
to the
contrary.
Β
WITNESS
the signatures of the duly authorized officers of the Company.
Β
Dated:
_____________
Β
Β | Β | Β |
Β | PCMT CORPORATION. | |
Β Β |
Β Β |
Β Β |
Β | By:Β Β | Β |
Β |
Name:
|
|
Β |
Title:
|
Β
Β
1-ii
Β
Exhibit
2
Β
Form
of Election to Purchase
Β
The
undersigned hereby irrevocably elects to exercise _________ of the
Class B
Warrants evidenced by the attached Warrant Certificate to purchase
Warrant
Shares, and herewith tenders (or is concurrently tendering) payment
for such
Warrant Shares in an amount determined in accordance with the terms
of the
Warrant Agreement. The undersigned requests that a certificate representing
such
Warrant Shares be registered in the name of _______________,
whose
address is _________________ and
that
such certificate be delivered toΒ _________________ ,
whose
address isΒ _________________ .
If said
number of Warrants is less than the number of Warrants evidenced by
the Warrant
Certificate (as calculated pursuant to the Warrant Agreement), the
undersigned
requests that a new Warrant Certificate evidencing the number of Warrants
evidenced by this Warrant Certificate that are not being exercised
be registered
in the name ofΒ _________________,
whose
address isΒ _________________ and
that
such Warrant Certificate be delivered toΒ _________________,
whose
address isΒ _________________.
Β
Β
Β |
Dated:
Β Β
Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β Β ,
Β Β
Β Β
Name
of holder of Warrant Certificate:
_____________________________
Β
_____________________________
(Please
Print)
Address:______________________
Β
_____________________________
Federal
Tax ID No.:______________
Signature:_____________________
|
|
Β | Β | Β |
Β | Note: | The above signature must correspond with the name as written in the first sentence of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and if the certificate evidencing the Warrant Shares or any Warrant Certificate representing Warrants not exercised is to be registered in a name other than that in which this Warrant Certificate is registered, the signature above must be guaranteed. |
Dated:
Β Β Β Β Β Β Β Β Β Β Β Β Β
Β ,
Β Β
Β
Β
Β
Β
Β