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Exhibit 4.2
[EXECUTION COPY]
STOCK PURCHASE AGREEMENT
BETWEEN
THE A CONSULTING TEAM, INC.
AND
LEVEL 8 SYSTEMS, INC.
Dated as of September 29, 2000
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STOCK PURCHASE AGREEMENT dated as of September 29, 2000 (this
"Agreement") between (i) THE A CONSULTING TEAM, INC., a New York corporation
(the "Company"), and (ii) LEVEL 8 SYSTEMS, INC. (the "Investor").
The parties agree as follows:
1. Authorization. The Company has authorized the issuance and sale, upon the
terms and set forth in this Agreement, of (i) the shares of the Company's Common
Stock, $.01 par value (the "Common Stock"), referred to below, (ii) the Warrant
referred to below in the form attached hereto as Exhibit A (the "Warrant"), and
(iii) the shares of Common Stock issuable upon exercise of the Warrant (the
"Warrant Shares").
2. Purchase and Sale of the Shares and the Warrant.
2.1 The Investor hereby purchases from the Company, and the Company
hereby issues and sells to the Investor, 500,000 shares of Common Stock
(collectively, the "Shares") and a Warrant to purchase 500,000 shares of Common
Stock, subject to certain adjustments as provided for in the Warrant, for an
aggregate purchase price of four million dollars ($4,000,000) (the "Purchase
Price"). The Investor agrees that payment for the Purchase Price shall be made
pursuant to a wire transfer of immediately available funds in accordance with
the wire transfer instructions set forth in Schedule 2.1.2 hereto on the date
hereof (the "Closing Date').
2.2 Upon receipt of the Purchase Price, the Company shall send by
overnight courier on the Closing Date (i) certified copies of all requisite
corporate actions taken by the Board of Directors of the Company to authorize
the execution and delivery of this Agreement and the Warrant by the Company and
its consummation of the transactions contemplated thereby, (ii) such other
corporate documents and other papers as the Investor or its counsel may
reasonably request, (iii) the Warrant and (iv) the certificate for the Shares,
duly registered in the Investor's name, against payment in full by the Investor
of the Purchase Price.
2.3 Subject to and in accordance with the terms of the Warrant, the
Investor shall have the option, exercisable by notice from the Investor to the
Company at any time commencing 120 days after the date hereof but prior to the
second anniversary of the date hereof to purchase from the Company up to an
aggregate of 500,000 shares of Common Stock at a purchase price of $13.00 per
share, subject to certain adjustments as provided for in the Warrant.
3. Representations and Warranties of Company.
The Company hereby represents and warrants to the Investor as follows
except as set forth in the schedules hereto with respect to specific Sections
below:
3.1 Organization.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York and has all requisite
corporate power and authority to own, lease and operate the assets used in its
business, to carry on its business as presently conducted and as proposed to be
conducted, to enter into the Documents (as hereinafter defined), to perform its
obligations thereunder, and to consummate the transactions contemplated by the
Documents. "Documents" means (a) this Agreement and (b) the Warrant. The Company
has made available to the Investor upon request therefor copies of its
Certificate of Incorporation, as amended (the "Certificate of Incorporation")
and By-laws, as amended; said copies are true, correct and complete and contain
all amendments through the date hereof.
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3.2 Qualification; Good Standing.
The Company is duly qualified to do business and is in good standing as
a foreign corporation in the States of New Jersey, Georgia, Illinois and
Connecticut. The Company is not required to be qualified in any other
jurisdiction where the failure to qualify would have a material adverse effect
on the Company. The Company is not and, upon consummation of the transactions
contemplated by the Documents will not be, an "investment company" or a company
controlled by an investment company within the meaning of the Investment Company
Act of 1940, as amended.
3.3 Corporate Authorization; Enforceability, Etc.
The Company has taken all corporate action, including all action
required of its Board of Directors and stockholders, necessary to authorize its
execution and delivery of the Documents, its performance of its obligations
thereunder, and its consummation of the transactions contemplated thereby. The
Documents have been executed and delivered by an officer of the Company in
accordance with such authorization. Each Document constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium, and
similar laws affecting creditors' rights generally and to general principles of
equity. The Company has authorized and shall at all times hold in reserve for
issuance in accordance with this Agreement the Shares and the Warrant Shares.
Upon delivery, the Shares will be duly authorized and validly issued, and upon
payment of the Purchase Price will be fully paid and nonassessable and will be
free of any liens or encumbrances other than any liens or encumbrances created
by the Investor outside of this Agreement; provided, however, that the Shares
are subject to the restrictions on transfer under "blue-sky", state and/or
Federal securities laws and pursuant to this Agreement. The Warrant Shares have
been duly authorized and when issued in compliance with the provisions of the
Warrant, will be validly issued, fully paid and nonassessable, and will be free
of any liens or encumbrances other than any liens or encumbrances created by the
Investor outside of the Documents; provided, however, that the Warrant Shares
are subject to the restrictions on transfer under "blue-sky", state and/or
Federal securities laws and pursuant to this Agreement and the Warrant. The
Shares and the Warrant Shares shall not be subject to any preemptive rights or
rights of first offer or refusal except as set forth herein.
3.4 No Conflict.
The execution and delivery by the Company of the Documents, its
consummation of the transactions contemplated thereby, and its compliance with
the provisions thereof, will not in any material respect (a) violate or conflict
with its Certificate of Incorporation or By-laws, (b) violate, conflict with, or
give rise to any right of termination, cancellation, rescission or acceleration
under any agreement, lease, security, license, permit, or instrument to which
the Company is a party, or to which it or any of its assets is subject, (c)
result in the imposition of any Encumbrance (as hereinafter defined) on any
asset of the Company, (d) violate or conflict with any Laws (as hereinafter
defined), or (e) require any consent, approval or other action of, notice to, or
filing with any entity or person (governmental or private), except for those
that have been obtained or made or will be made in a timely manner.
"Encumbrance" means any security interest, mortgage, lien, pledge, charge,
easement, reservation, restriction, or similar right of any third party; and
"Laws" means all laws, rules, regulations, ordinances, orders, judgments,
injunctions, decrees and other legislative, administrative or judicial
restrictions.
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3.5 Capitalization.
The authorized capital stock of the Company consists of 10,000,000
shares of Common Stock, $.01 par value (the "Common Stock"), and 2,000,000
shares of Preferred Stock, $.01 par value (the "Preferred Stock"), of which (A)
no shares of Preferred Stock are outstanding and (B) 6,609,996 shares of Common
Stock are issued and outstanding. Except (i) for an aggregate of 900,000 shares
of Common Stock reserved for issuance under the Company's Stock Option Plan(s),
(ii) as set forth on Schedule 3.5, and (iii) for the shares of Common Stock
issued or issuable in accordance with this Agreement and the Warrant,
immediately after the date hereof there will be no outstanding (1) securities
convertible into or exchangeable for shares of capital stock or other securities
of the Company, (2) options, warrant, or other rights to purchase or otherwise
acquire from the Company shares of such capital stock, or securities convertible
into or exchangeable for shares of such capital stock, or (3) contracts,
agreements or commitments relating to the issuance by the Company of any shares
of such capital stock, any such convertible or exchangeable securities, or any
such options, warrant or other rights. There are no voting trusts, voting
agreements, proxies or other agreements, instruments or understandings with
respect to the voting of the capital stock of the Company. Except (i) as set
forth herein, and (ii) as set forth on Schedule 3.5, there are no agreements or
understandings granting to any person or entity any right to cause the Company
to effect the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of any shares of its capital stock.
3.6 Securities Laws.
Subject to and based in part upon the truth and accuracy of the
representations and warranties of the Investor contained herein, the offering
and sale of the Shares, the Warrant and the Warrant Shares contemplated hereby
are not subject to the registration requirements of the Securities Act pursuant
to an exemption thereunder and are, or following the date hereof will be, exempt
from registration or will be qualified as and when required under all applicable
state securities or "blue-sky" laws.
3.7 Financial Statements; SEC Documents.
3.7.1 Since June 30, 1999, the Company has filed with the Securities
and Exchange Commission (the "SEC") all forms, reports, schedules,
statements and other documents, and amendments thereto, required to
be filed by it through the date hereof, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (such forms,
reports, schedules, statements, amendments and other documents, to
the extent filed and publicly available prior to the date of this
Agreement, other than preliminary filings, are referred to as the
"SEC Reports").
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3.7.2 The Company is subject to Section 13 of the Exchange Act and is
in compliance with its reporting obligations thereunder, satisfies
the current public information requirement of Rule 144(c)(1) under
the Securities Act (and is current in such reporting obligations)
and is currently eligible to file a registration statement on Form
S-3 under the Securities Act.
3.7.3 On the date of filing of each of the SEC Reports, such Report,
(a) did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (b)
complied as to form in all material respects with the applicable
requirements of the Exchange Act.
3.7.4 The financial statements for the Company filed with the SEC in
its Form 10-K for the year ended December 31, 1999 present fairly
the financial condition and the results of operations of the
Company as of the dates and for the periods indicated, and have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis ("GAAP"). The unaudited
financial statements for the Company filed with the SEC in its Form
10-Q for the quarter ended June 30, 2000, present fairly the
financial condition and the results of operations of the Company as
of the date and for the period indicated, and have been prepared in
accordance with GAAP (subject to year-end audit adjustments not in
the aggregate material and except for the absence of footnotes
required by GAAP). The statement of income included in the
unaudited financial statements does not contain any items of
extraordinary or nonrecurring income except as expressly stated
therein, and the Company's balance sheet does not reflect any
write-up or revaluation increasing the book value of any assets.
3.7.5 Since June 30, 2000, except as disclosed in Schedule 3.7.5
hereto, (a) the Company has conducted its business only in the
ordinary course, and has not incurred any (i) liabilities or
obligations (except such as were incurred in the ordinary course of
the Company's business consistent with past practice and which do
not exceed $100,000 in the aggregate) and (ii) indebtedness for
money borrowed (whether absolute, accrued, contingent or
otherwise), (b) no event has occurred or circumstance or state of
facts exist, whether or not in the ordinary course of business,
which has had or could reasonably be expected to have a material
adverse effect on the business, operations, condition (financial or
otherwise) or properties of the Company and (c) the Company has not
set aside, declared or paid any dividend or other distribution to
any of its securityholders.
3.7.6 Except as disclosed in the SEC Reports or in Schedule 3.7.6
attached hereto, the Company is not subject to any actual or, to
the Company's knowledge, reasonably foreseeable potential material
claims or liabilities (whether absolute, accrued, contingent or
otherwise), including, without limitation, any tax, environmental,
ERISA or employment material claims or liabilities, or any other
material debts, liabilities, obligations, claims or potential
material claims.
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3.7.7 All taxes, including, without limitation, income, property,
sales, use, franchise, added value, employees' income withholding
and social security taxes, imposed by the United States or by any
foreign country or by any state, municipality, subdivision or
instrumentality of the United States or of any foreign country, or
by any other taxing authority, which are due or payable by the
Company, and all interest and penalties thereon, whether disputed
or not, have been paid in full, all tax returns required to be
filed in connection therewith have been accurately prepared and
duly and timely filed and all deposits required by law to be made
by the Company with respect to employees' withholding taxes have
been duly made. The Company has not been delinquent in the payment
of any foreign or domestic tax, assessment or governmental charge
or deposit and has no tax deficiency or claim outstanding, proposed
or assessed against it, and there is no basis for any such
deficiency or claim.
3.8 Subsidiaries; Real Property.
Except as set forth on Schedule 3.8, the Company does not own, directly
or indirectly, any capital stock or other proprietary interest in any other
corporation, partnership, or other entity. The Company does not own or hold,
directly or indirectly, any real property.
3.9 Compliance with Laws; Governmental Authorizations.
The Company is in compliance with all Laws, except for such
noncompliance as would not have a material adverse effect on its assets,
business condition (financial or otherwise), or property. The Company is not
required to hold or maintain any material governmental authorizations, licenses
or permits in the conduct of its business as presently conducted and as proposed
to be conducted (other than any thereof which it holds on the date hereof).
3.10 Litigation.
Except as set forth on Schedule 3.10 hereto, there are no (a) actions,
suits, claims, investigations or other proceedings by or before any governmental
authority or arbitrator pending or, to the knowledge of the Company, threatened
against the Company, or (b) judgments, decrees, injunctions or orders of any
governmental authority or arbitrator against the Company.
3.11 Brokers and Finders.
No person or entity acting on behalf or under the authority of the
Company is or will be entitled to any broker's, finder's, or similar fee or
commission in connection with the issuance of the Shares or the consummation of
any of the transactions contemplated by the Documents.
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3.12 Disclosure.
3.12.1 No representation or warranty of the Company contained in this
Agreement or the Schedules hereto, when read together, contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or
therein, in light of the circumstances under which they were made,
not misleading.
3.12.2 The representations and warranties contained in this Agreement
shall not be affected or deemed waived by reason of the fact that
Investor or its representatives knew or should have known that any
such representation or warranty is or might be inaccurate in any
respect.
3.12.3 Except as otherwise provided herein, the representations and
warranties in this Agreement shall survive for all claims made
prior to June 14, 2001.
4. Representations and Warranties of the Investor.
The Investor represents and warrants to the Company as follows:
4.1 Organization.
The Investor is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization and has all requisite
corporate or partnership power and authority to enter into this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby.
4.2 Authorization.
The Investor has taken all action necessary to authorize its execution
and delivery of this Agreement, its performance of its obligations hereunder,
and its consummation of the transactions contemplated hereby and this Agreement
has been executed and delivered by an officer or other authorized representative
of the Investor in accordance with such authorization. This Agreement
constitutes a valid and binding obligation of the Investor, enforceable in
accordance with its terms, subject to bankruptcy, reorganization, insolvency,
moratorium, and similar laws affecting creditors' rights generally and to
general principles of equity.
4.3 Investment Representations and Warranties.
4.3.1 The Shares, the Warrant and any Warrant Shares which are acquired
by the Investor hereunder will be acquired by it hereunder for its
own account, for investment and not with a view to the distribution
thereof, nor with any present intention of distributing the same.
The Investor further understands the transfer restrictions on the
Shares, the Warrant and the Warrant Shares hereof in the event the
Investor desires to transfer any of its Shares, the Warrant or any
Warrant Shares.
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4.3.2 The Investor understands that, except as provided in Section 5
hereof, any Shares and the Warrant acquired by it hereunder have
not been, and the Warrant Shares will not be, registered under the
Securities Act or registered or qualified under any state
securities or "blue-sky" laws, by reason of their issuance in a
transaction exempt from the registration and/or qualification
requirements thereof, and that they must be held indefinitely
unless a subsequent disposition thereof is registered under the
Securities Act or registered or qualified under any applicable
state securities or "blue-sky" laws or is exempt from registration
and/or qualification.
4.3.3 The Investor understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to the
Investor) promulgated under the Securities Act depends on the
satisfaction of various conditions and that, if applicable, Rule
144 may only afford the basis for sales under certain circumstances
and only in limited amounts.
4.3.4 The Investor acknowledges that it has met with representatives of
the Company and has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the offering
of the Shares, the Warrant and the Warrant Shares, and to obtain
any additional information which the Company possessed or could
acquire without unreasonable effort or expense, and has generally
such knowledge and experience in business and financial matters and
with respect to such investments as to enable the Investor to
understand and evaluate the risks of such investment and form an
investment decision with respect thereto.
4.3.5 The Investor has no need for liquidity in its investment in the
Company, and is able to bear the economic risk of such investment
for an indefinite period and to afford a complete loss thereof.
4.3.6 The Investor is an "accredited investor" as such term is defined
in Rule 501 (the provisions of which are known to the Investor)
promulgated under the Securities Act.
4.3.7 The Investor has not been formed solely for the purpose of
effecting its investment hereunder.
4.3.8 The Investor acknowledges that the securities laws and state
fiduciary laws impose certain obligations on persons who trade on
or divulge material non-public information of publicly traded
companies.
4.4 Brokers and Finders.
No person or entity acting on behalf or under the authority of the
Investor is or will be entitled to any broker's, finder's, or similar fee or
commission in connection with the transactions contemplated hereby.
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4.5 1934 Act Filings.
The Investor will make all filings (if any) required to be made by it
under Sections 13 and 16 of the Securities Exchange Act of 1934, as amended, and
all regulations thereunder, in connection with the transactions contemplated
hereby.
5. Registration Rights.
5.1 On or before December 1, 2000, the Company shall use its best
efforts to file a registration statement on Form S-3 (or on such
other form as may be available to the Company) (the "Registration
Statement") with the SEC for the public sale of the Shares and
the Warrant Shares. For the purpose of certainty, the Investor
shall not be obligated to exercise the Warrant in order for the
Registration Statement to cover the Warrant Shares.
5.2 The Company shall use its best efforts to cause such Registration
Statement to become effective not later than 90 days after the
date of filing, and to remain effective until the Warrant Shares
are eligible for sale under Rule 144(k) of the Securities Act.
The Investor acknowledges that the occurrence of material events
may require that the Registration Statement be amended before
further sales are permitted thereunder, in which case the Company
will promptly effect such amendment.
5.3 The Registration Statement shall be accompanied by blue sky
clearances in such states as the Investor may reasonably request,
provided, however, the Company shall not be required to execute
any general consent to service of process in order to obtain such
blue sky clearance, except in a jurisdiction where the Company is
already subject to such process.
5.4 The Company shall supply to the Investor a reasonable number of
copies of all registration materials and prospectuses relating to
the registration of the Shares and the Warrant Shares. The
Company and the Investor shall execute and deliver to each other
indemnity agreements that are conventional in transactions of
this type. The Investor shall cooperate with the Company in the
preparation and filing of the Registration Statement and
appropriate amendments thereto.
5.5 Notwithstanding the effectiveness of any Registration Statement,
the Investor will not sell any of the Company's stock covered by
the Registration Statement in a public offering or on any
exchange which such stock is traded, prior to 30 days after the
effectiveness of the Registration Statement.
5.6 The Company shall at all times file such public reports as shall
be required to satisfy the current public information
requirements contained in Rule 144 of the Securities Act, shall
not hinder or delay any sales under such Rule, or permit or
suffer its counsel to hinder or delay any such sales. The Company
shall pay the fees and expenses of its counsel in connection with
any such sales.
5.7 Time is of the essence for purposes of this Section 5.
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6. Legend.
The Shares and any Warrant Shares issued shall bear the legend set
forth on Exhibit B hereof (the "Legend"). The Company will promptly, upon
request and receipt from the Investor of reasonable and customary written
representations, opinions and brokers letters for sales under Rule 144, remove
the Legend (i) in connection with any transfer of securities that is registered
under the Securities Act or made in compliance with Rule 144 or (ii) when it is
otherwise no longer required by applicable provisions of the Securities Act.
7. Right of First Offer.
(a) If the Investor proposes to sell (which term shall include any
disposition) any Shares or any Warrant Shares (the "Securities") in a Covered
Sale (as hereinafter defined), the Investor will give written notice to the
Company (the "Transfer Notice") of the number of Securities the Investor
proposes to sell in Covered Sales during the 90-day period (the "Notice Period")
commencing on the date of the Investor's delivery of the Transfer Notice (the
"Delivery Date") and the price per share at which the Investor proposes to sell
such Securities. The Company shall have the right, during the 10-day period
commencing on the Delivery Date, to purchase all, but not less than all, of the
Securities described in the Transfer Notice at the price per share set forth in
the Transfer Notice by delivery to the Investor of (i) the Company's written
irrevocable agreement to purchase all of such Securities at such price per share
and (ii) payment in immediately available funds of the aggregate purchase price
for such Securities to such account or accounts as shall be designated by the
Investor. The right described in the preceding sentence shall terminate if the
agreement and purchase price described in the preceding sentence are not
received by the Investor prior to 4:00 p.m. New York City time on the 10th day
immediately following the Delivery Date. If the Company does not exercise its
right as hereinabove set forth within such 10-day period, the Investor may sell
all or any portion of the Securities described in the Transfer Notice to any
purchaser for a price per share equal to or in excess of the price set forth in
the Transfer Notice. If, at the end of the Notice Period, the Investor has not
completed such sales, the Investor shall no longer be permitted to sell such
Securities in a Covered Transaction without again complying with all of the
provisions of this Section. Notwithstanding the foregoing, the Investor may at
any time amend, supplement or revise any information set forth in any previously
delivered Transfer Notice by delivering an amended Transfer Notice to the
Company, in which event the 10- and 90- day periods described above shall
recommence from the date of Investor's delivery of such amended Transfer Notice
to the Company.
(b) As used in this Section, "Covered Sale" shall mean any sale of
Securities by the Investor other than (i) a sale to an Affiliate of the Investor
or (ii) a transfer that is registered under the Securities Act or effected
pursuant to Rule 144 under the Securities Act.
(c) Notwithstanding anything in the Documents, the provisions of this
Section shall terminate and be of no further effect on the second anniversary of
the date hereof.
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8. Indemnification.
8.1 The Company shall indemnify, defend and hold the Investor
harmless against all liability, loss or damage, together with all
reasonable costs and expenses related thereto (including
reasonable legal fees and expenses), relating to or arising from
the untruth, inaccuracy or breach of any of the representations,
warranties or agreements of the Company contained in the
Documents.
8.2 The Investor, severally and not jointly, shall indemnify and hold
the Company harmless against all liability, loss or damage,
together with all reasonable costs and expenses related thereto
(including reasonable legal fees and expenses), relating to or
arising from the untruth, inaccuracy or breach of any of the
representations, warranties or agreements of the Investor
contained in the Documents.
9. Fees and Expenses.
Each party hereto shall bear its own costs and expenses incurred on its
behalf in connection with the preparation, negotiation, execution, and delivery
of the Documents, and the preparation for and consummation of the transactions
contemplated thereby and therein, including any expenses incurred in connection
with the Registration Statement; provided, however, that the Company shall pay
the reasonable fees and expenses of one law firm representing the Investor up to
an amount not in excess of $25,000.
10. Publicity; Press Release.
Neither the Company nor Investor shall issue any press release or make
any public disclosure regarding the transactions contemplated unless such press
release or public disclosure is approved by the other party in advance, provided
that neither party hereto shall prevent the other from making any disclosures
required by law. Subject to the foregoing, the Company shall issue a press
release in form and substance acceptable to investor promptly following the
Closing.
11. Entire Agreement.
This Agreement (including the Exhibits and Schedules hereto) contain
the entire understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings among the parties
with respect to such subject matter, including, without limitation, any oral or
written communications made by an officer, employee, agent or affiliate of the
Company in connection therewith.
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12. Notices.
All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered or if sent by nationally-recognized overnight
courier, by telecopy, or by registered or certified mail, return receipt
requested and postage prepaid, addressed as follows:
if to the Company:
The A Consulting Team, Inc.
200 Park Avenue South
New York, New York 10003
Telephone: (212) 979-1010
Fax: (212) 979-7838
Attention: Shmuel BenTov, Chairman & Chief Executive Officer
if to the Investor:
Associate Corporate Counsel
Level 8 Systems, Inc.
8000 Regency Parkway
Cary, North Carolina 27511
Phone: 919-319-2440
Fax: 919-380-5090
Attention: James Andrew Saputo, Jr.
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of an
internationally-recognized overnight courier, on the next business day after the
date when sent, (c) in the case of telecopy transmission with confirmation of
its receipt, and (d) in the case of mailing, on the third business day following
that on which the piece of mail containing such communication is posted.
13. Amendments.
The terms and provisions of this Agreement may only be modified or
amended, or the performance thereof waived, pursuant to an instrument signed by
(a) the Company and the Investor or (b) the party against whom enforcement of
such modification, amendment or waiver is sought.
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14. Counterparts.
This Agreement may be executed in any number of counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
15. Headings.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. Governing Law.
This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of New York, without giving effect to any law or
rule that would cause the laws of any jurisdiction other than the State of New
York to be applied.
17. Successors and Assigns.
Except as otherwise provided herein, the provisions hereof shall inure
to the benefit of, and be binding upon, the successors and permitted assigns of
the parties hereto. No assignment of the Documents (or delegation of the
Company's obligations thereunder) may be made by the Company at any time,
whether or not by operation of law, without the Investor's prior written
consent; provided, however, that this sentence shall not be interpreted to
require a separate consent of the holders of the Warrant in connection with any
acquisition, business combination, or similar transaction where all or
substantially all of the assets or securities of the Company are acquired by a
third party. The Investor may not assign its rights or delegate its duties
hereunder without the Company's prior consent, except that the Investor may
assign any or all of its rights under this Agreement to an Affiliate of the
Investor without the Company's consent provided that such Affiliate delivers to
the Company an agreement reasonably satisfactory to the Company in which such
Affiliate assumes all of the Investor's payment and other obligations under this
Agreement and makes the representations made by the Investor hereunder.
18. Delays or Omissions.
Except as expressly provided herein, no delay or omission to exercise
any right, power or remedy accruing to the Company or the Investor upon any
breach or default of any party under any Document shall impair any such right,
power or remedy of the Company or the Investor nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of the Company or the Investor of any breach
or default under any Document, or any waiver on the part of any such party of
any provisions or conditions of any Document, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under the Documents or by law or otherwise afforded to the
Company or the Investor, shall be cumulative and not alternative.
12
<PAGE>
19. Stock Certificates.
Upon surrender of any certificate representing Securities for exchange
at the office of the Company, the Company at its expense will cause to be issued
in exchange therefor new certificates in such denomination or denominations as
may be requested for the same aggregate number of Securities represented by the
certificate so surrendered and registered as such holder may request. Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of any certificate evidencing any of the
Securities and (in case of loss, theft or destruction) of indemnity reasonably
satisfactory to it, and upon reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender and cancellation of such
certificate, if mutilated, the Company will make and deliver in lieu of such
certificate a new certificate of like tenor and for the number of Securities
evidenced by such certificate which remain outstanding.
20. Specific Enforcement.
The Company acknowledges and agrees that irreparable damage would be
suffered by the Investor in the event that any of the Company's covenants
contained in the Documents were not performed in accordance with their specific
terms or were otherwise breached, and that money damages are an inadequate
remedy for breach thereof because of the difficulty of ascertaining and
quantifying the amount of damage that will be suffered by the Investor in the
event that such covenants are not performed in accordance with their terms or
are otherwise breached. It is accordingly agreed that the Investor shall be
entitled to an injunction or injunctions to prevent breaches of the covenants
referred to in the immediately preceding sentence and to enforce specifically
the terms and provisions of the Documents in any court having jurisdiction, this
being in addition to any other rights and remedies to which the Investor may be
entitled at law or equity.
[Remainder of page intentionally left blank]
13
<PAGE>
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date first above written.
THE A CONSULTING TEAM, INC.
By: /s/ Frank T. Thoelen
--------------------------
Name: Frank T. Thoelen
Title: CFO
LEVEL 8 SYSTEMS, INC.
By: /s/ Dennis McKinnie
--------------------------
Name: Dennis McKinnie
Title: SVP
<PAGE>
Schedule 2.1.2
--------------
The A Consulting Team, Inc.
Citibank N.A.
Branch #52
330 Madison Avenue
New York, NY 10017
ABA#021000089
Account #46913374
<PAGE>
Schedule 3.5
------------
----------------------------------------------------------------------
Outstanding Warrants
--------------------
----------------------------------------------------------------------
Investor Shares
-------- ------
----------------------------------------------------------------------
Yossi Vardi 271,428
----------------------------------------------------------------------
Rita Folger 14,286
----------------------------------------------------------------------
DS Polaris Group 168,068
----------------------------------------------------------------------
SFK Group 168,068
----------------------------------------------------------------------
Koonras Technologies, Ltd. 142,857
----------------------------------------------------------------------
Arison Investments Ltd. 378,150
----------------------------------------------------------------------
Eurocom Communications, Ltd. 178,570
----------------------------------------------------------------------
Poalim Capital Markets Technologies, Ltd. 142,857
----------------------------------------------------------------------
Michael G. Jesselson 4/8/71 Trust 87,500
----------------------------------------------------------------------
Michael G. Jesselson 12/18/80 Trust 37,500
---------
----------------------------------------------------------------------
Total 1,589,284
----- =========
----------------------------------------------------------------------
----------------------------------------------------------------------
Shares with Registration Rights
-------------------------------
----------------------------------------------------------------------
Investor Shares
-------- ------
----------------------------------------------------------------------
Yossi Vardi 542,856
----------------------------------------------------------------------
Rita Folger 28,571
----------------------------------------------------------------------
DS Polaris Group 203,782
----------------------------------------------------------------------
SFK Group 203,782
----------------------------------------------------------------------
Koonras Technologies, Ltd. 285,714
----------------------------------------------------------------------
Arison Investments Ltd. 556,721
----------------------------------------------------------------------
Eurocom Communications, Ltd. 357,140
----------------------------------------------------------------------
Poalim Capital Markets Technologies, Ltd. 285,714
----------------------------------------------------------------------
Michael G. Jesselson 4/8/71 Trust 175,000
----------------------------------------------------------------------
Michael G. Jesselson 12/18/80 Trust 75,000
---------
----------------------------------------------------------------------
Total 2,714,280
----- =========
----------------------------------------------------------------------
<PAGE>
Schedule 3.7.5
--------------
The Company has a credit line from Citibank N.A., of which $2,000,000 was
outstanding on the date hereof.
<PAGE>
Schedule 3.7.6
--------------
None
<PAGE>
Schedule 3.8
------------
T3 Media, Inc.
Always-On, Inc.
<PAGE>
Schedule 3.10
-------------
Litigation
----------
None
<PAGE>
EXHIBIT A
---------
Warrant
<PAGE>
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SUCH ACT.
September 29, 2000
THE A CONSULTING TEAM, INC.
WARRANT
THIS CERTIFIES that, for value received, LEVEL 8 SYSTEMS, INC, or
assigns, is entitled to subscribe for and purchase from THE A CONSULTING TEAM,
INC., a New York corporation (the "Company"), up to 500,000 shares (the "Warrant
Shares") of Common Stock, $.01 par value (the "Common Stock") of the Company at
a purchase price of $13.00 per share (the "Warrant Price") at any time or times
commencing 120 days after the date hereof and ending on the second anniversary
of the date of this Warrant (the "Exercise Period"). The shares of capital stock
of the Company issuable upon exercise or exchange of this Warrant are sometimes
hereinafter referred to as the "Warrant Shares," and, in connection therewith,
all references herein to Warrant Shares shall mean Common Stock.
1. Exercise of Warrant.
The rights represented by this Warrant may be exercised by the holder
hereof, in whole or in part, at any time and from time to time during the
Exercise Period, by the surrender of this Warrant (together with the Form of
Exercise attached hereto duly executed) at the office of the Company, or at such
other agency or office of the Company in the United States of America as the
Company may designate by notice in writing to the holder hereof at the address
of such holder appearing on the books of the Company, and by payment to the
Company of the Warrant Price in cash, by certified check, by wire transfer or by
bank draft payable to the order of the Company for each share being purchased.
In the event of the exercise of the rights represented by this Warrant, a
certificate or certificates for the Warrant Shares so purchased, registered in
the name of the holder, and if such Warrant Exercise shall not have been for all
Warrant Shares, a new Warrant, registered in the name of the holder hereof, of
like tenor to this Warrant, shall be delivered to the holder hereof within a
reasonable time, not exceeding ten days, after the rights represented by this
Warrant shall have been so exercised. The person in whose name any certificate
for Warrant Shares is issued upon exercise of this Warrant shall for all
purposes be deemed to have become the holder of record of such shares on the
date on which the Warrant was surrendered and payment of the Warrant Price was
made, irrespective of the date of delivery of such certificate, except that, if
the date of such surrender and payment is a date when the stock transfer books
of the Company are closed, such person shall be deemed to have become the holder
of such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
<PAGE>
2. Adjustment of Warrant Price.
If, at any time during the Exercise Period, the number of outstanding
shares of Common Stock is (i) increased by a stock dividend payable in shares of
such class of capital stock or by a subdivision or split-up of shares of such
class of capital stock, or (ii) decreased by a combination of shares of such
class of capital stock, then, following the record date fixed for the
determination of holders of such class of capital stock entitled to receive the
benefits of such stock dividend, subdivision, split-up, or combination, the
Warrant Price shall be adjusted to a new amount equal to the product of (A) the
Warrant Price in effect on such record date and (B) the quotient obtained by
dividing (x) the number of shares of such class of capital stock outstanding on
such record date (without giving effect to the event referred to in the
foregoing clause (i) or (ii)), by (y) the number of shares of such class of
capital stock which would be outstanding immediately after the event referred to
in the foregoing clause (i) or (ii), if such event had occurred immediately
following such record date.
3. Adjustment of Warrant Shares.
Upon each adjustment of the Warrant Price as provided in Section 2, the
holder hereof shall thereafter be entitled to subscribe for and purchase, at the
Warrant Price resulting from such adjustment, the number of Warrant Shares equal
to the product of (i) the number of Warrant Shares purchaseable prior to such
adjustment and (ii) the quotient obtained by dividing (A) the Warrant Price
existing prior to such adjustment by (B) the new Warrant Price resulting from
such adjustment. No fractional shares of capital stock of the Company shall be
issued as a result of any exercise or conversion of the Warrant. If a fractional
share interest arises upon any exercise or conversion of the Warrant, the
Company shall eliminate such fractional share interest by paying the holder an
amount computed by multiplying the fractional interest by the Fair Market Value
of a full share. For purposes of this Section 3, "Fair Market Value" of the
Warrant Shares shall mean:
(i) the closing price of shares of the Company's
Common Stock quoted on the Nasdaq National Market or the
closing price quoted on any exchange on which such shares are
listed, whichever is applicable, on the trading day
immediately preceding the date of delivery of the notice
pursuant to Section 1, or
(ii) if the Common Stock is not listed on the Nasdaq
National Market or on an exchange, the fair market value of
one share of Common Stock as determined in good faith by the
Company's Board of Directors.
4. Covenants as to Stock.
The Company covenants and agrees that all shares of Common Stock which
may be issued upon the exercise of the rights represented by this Warrant will,
upon receipt by the Company of the Warrant Price therefor and upon issuance, be
duly authorized, validly issued, fully paid and non-assessable and free from all
taxes, liens and charges with respect to the issue thereof. The Company shall
pay all taxes and any and all United States federal, state and local taxes and
other charges that may be payable in connection with the preparation, issuance
and delivery of the certificates representing Warrant Shares hereunder. The
Company further covenants and agrees that the Company will from time to time
take all such action as may be requisite to assure that the
2
<PAGE>
stated or par value per share of the Common Stock is at all times equal to or
less than the then effective Warrant Price per share of the Common Stock
issuable upon exercise of this Warrant. The Company further covenants and agrees
that the Company will at all times have authorized and reserved, free from
preemptive rights, a sufficient number of shares of its Common Stock to provide
for the exercise of the rights represented by this Warrant. The Company further
covenants and agrees that if any shares of capital stock to be reserved for the
purpose of the issuance of shares of capital stock upon the exercise of this
Warrant require registration with or approval of any governmental authority
under any Federal or state law before such shares may be validly issued or
delivered upon exercise, then the Company will in good faith and expeditiously
as possible endeavor to secure such registration or approval, as the case may
be. If and so long as any capital stock of the Company is listed on any national
securities or the NASDAQ Stock Market, the Company will, if permitted by the
rules of such exchange, list and keep listed on such exchange, upon official
notice of issuance, all shares of such capital stock issuable upon exercise of
this Warrant.
5. No Shareholder Rights.
This Warrant shall not entitle the holder hereof to any voting rights
or other rights as a shareholder of the Company.
6. Restrictions on Transfer; Etc.
(a) The Company may deem and treat the person in whose name this
Warrant is registered as the holder and owner hereof for all
purposes and shall not be affected by any notice to the
contrary. The holder of this Warrant by acceptance hereof
agrees that the transfer of the Warrant Shares is subject to
the provisions set forth in this Section 6 and the conditions,
including a right of first offer, specified in the Stock
Purchase Agreement (as defined herein). The Warrant Shares
issuable upon exercise of this Warrant shall be entitled to
all rights and benefits accorded thereto in the Stock Purchase
Agreement between the Company and the other parties thereto of
even date herewith (the "Stock Purchase Agreement"), and the
applicable provisions of the Stock Purchase Agreement are
hereby incorporated herein by reference.
(b) Each certificate representing Warrant Shares shall (unless
otherwise permitted by the provisions of paragraph (c) and (d)
below) be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THESE SECURITIES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN EXEMPTION THEREFROM UNDER SUCH ACT. ADDITIONALLY, UNTIL
SEPTEMBER 29, 2002, THE TRANSFER OF THESE SECURITIES IS
SUBJECT TO THE CONDITIONS, INCLUDING A RIGHT OF FIRST OFFER,
SPECIFIED IN THE STOCK PURCHASE AGREEMENT DATED AS OF
SEPTEMBER 29, 2000, BETWEEN THE A CONSULTING TEAM, INC. AND
THE OTHER PARTY THERETO, AND NO TRANSFER OF THESE SECURITIES
SHALL BE VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED. UPON THE FULFILLMENT OF CERTAIN OF SUCH CONDITIONS,
THE A CONSULTING TEAM, INC. HAS AGREED TO DELIVER TO THE
HOLDER HEREOF A NEW CERTIFICATE, NOT BEARING THIS LEGEND, FOR
THE SECURITIES REPRESENTED HEREBY REGISTERED IN THE NAME OF
SUCH HOLDER. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO
COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF THE A CONSULTING TEAM, INC."
3
<PAGE>
(c) The holder of any Warrant Shares by acceptance thereof agrees,
prior to any transfer of any Warrant Shares, to give written
notice to the Company of such holder's intention to effect
such transfer and to comply in all other respects with the
provisions of this Section and Section 7 of the Stock Purchase
Agreement. The holder delivering such notice concurrently
shall deliver a written opinion, addressed to the Company, of
counsel for such holder, stating that in the opinion of such
counsel (which opinion and counsel shall be reasonably
satisfactory to the Company) such proposed transfer does not
involve a transaction requiring registration or qualification
of such Warrant Shares under the Securities Act or the
securities or "blue sky" laws of any state of the United
States, whereupon, subject to Section 7 of the Stock Purchase
Agreement, such holder of Warrant Shares shall be entitled to
transfer such Warrant Shares in accordance with the terms of
the notice delivered to the Company, so long as the Company
does not reasonably object to such opinion within three
business days after delivery thereof. Each certificate or
other instrument evidencing the securities issued upon the
transfer of any Warrant Shares (and each certificate or other
instrument evidencing any untransferred balance of such
Warrant Shares) shall bear the legend set forth in paragraph
(b) above unless (i) in the opinion of counsel to the Company
registration of any future transfer is not required by the
applicable provisions of the Securities Act or (ii) the
Company shall have waived the requirement of such legends or a
legend is no longer required by applicable provisions of the
Securities Act.
(d) Notwithstanding the foregoing provisions of this Section, the
restrictions imposed by this Section upon the transferability
of the Warrant Shares shall cease and terminate when (i) any
such Warrant Shares are sold or otherwise disposed of (A)
pursuant to an effective registration statement under the
Securities Act or (B) in a transaction contemplated by
paragraph (c) above which does not require that the Warrant
Shares so transferred bear the legend set forth in paragraph
(b) hereof, or (ii) the holder of such Warrant Shares has met
the requirements for transfer of such Warrant Shares under
Rule 144(k) under the Securities Act. Whenever the
restrictions imposed by this Section shall terminate, the
holder of any Warrant Shares as to which such restrictions
have terminated shall be entitled to receive from the Company,
without expense, a new certificate not bearing the restrictive
legend set forth in paragraph (b) above and not containing any
other reference to the restrictions imposed by this Section.
4
<PAGE>
7. Amendment.
The terms and provisions of this Warrant may not be modified or
amended, except with the written consent of the Company and the holders of a
majority of Warrant Shares issuable upon exercise hereof.
8. Reorganizations, Etc.
In case, at any time on or prior to the end of the Exercise Period, of
any capital reorganization, of any reclassification of the stock of the Company
(other than a change in par value or from par value to no par value or from no
par value to par value or as a result of a stock dividend or subdivision,
split-up or combination of shares), or the consolidation or merger of the
Company with or into another corporation (other than a consolidation or merger
in which the Company is the continuing operation and which does not result in
any change in the Warrant Shares or in any distribution of any securities,
evidences of indebtedness, rights, cash or other property to security holders of
the Company) or of the sale of all or substantially all the properties and
assets of the Company to any other corporation, this Warrant shall, after such
reorganization, reclassification, consolidation, merger or sale, be exercisable
for the kind and number of shares of stock or other securities or property of
the Company or of the corporation resulting from such consolidation or surviving
such merger or to which such properties and assets shall have been sold to which
such holder would have been entitled if he had held the Warrant Shares issuable
upon the exercise hereof immediately prior to such reorganization,
reclassification, consolidation, merger or sale. In any such case, the Company
shall, as condition precedent to such transaction, execute a new Warrant or
cause such successor or purchasing corporation, as the case may be, to execute a
new Warrant, providing that the holder of this Warrant shall have the right to
exercise such new Warrant during the remainder of the Exercise Period and upon
such exercise to receive, in lieu of each share of Common Stock theretofore
issuable upon exercise of this Warrant, the kind and amount of shares of stock,
other securities, money and property issuable or payable, as the case may be,
upon such merger, consolidation, sale of assets or other change to a holder of
one share of Common Stock. Such new Warrant shall provide for adjustments that
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Warrant. The provisions of this Section 8 shall similarly apply to
successive mergers, consolidations, sale of assets and other changes and
transfers.
9. Lost, Stolen, Mutilated or Destroyed Warrant.
If this Warrant is lost, stolen, mutilated or destroyed, the Company
shall, on such terms as to indemnity or otherwise as it may reasonably impose
(which shall, in the case of a mutilated Warrant, include the surrender
thereof), issue a new Warrant of like denomination and tenor as the Warrant so
lost, stolen, mutilated or destroyed. Any such new Warrant shall constitute an
original contractual obligation of the Company, whether or not the allegedly
lost, stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
5
<PAGE>
10. Notice of Adjustments.
The Company shall promptly give written notice of each change,
adjustment or readjustment of the Warrant Price or the number of shares of
Common Stock or other securities issuable upon exercise of this Warrant, by
first class mail, postage prepaid, to the registered holder of this Warrant at
the holder's address for notices in the Stock Purchase Agreement. This notice
shall state that change, adjustment or readjustment and show in reasonable
detail the facts on which that adjustment or readjustment is based.
If at any time (a) the Company shall take a record of the holders of
any class of capital stock of the Company for the purpose of entitling them to
receive a dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any class or
any other securities or property, or to receive any other right, or (b) there
shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or
merger of the Company with, or any sale, transfer or other disposition of all or
substantially all the property, assets or business of the Company to, another
entity or person, or (c) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company; then, in any one or more of such
cases, the Company shall give to the holder of this Warrant (i) at least thirty
(30) days' prior written notice of the record date for such dividend,
distribution or right or for determining rights to vote in respect of any such
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, and (ii) in the case of any
such reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up, at least thirty (30) days'
prior written notice of the date when the same shall take place. Such notice
shall also specify all material terms of such dividend, distribution, right,
reorganization, reclassification, merger, consolidation, sale, transfer,
disposition, dissolution, liquidation or winding up. The Company shall not by
any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but shall at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate to protect the rights of the holder hereof against impairment.
11. Governmental Filings and Approvals.
Notwithstanding any provision herein to the contrary, the Company shall
not be obligated to issue any Common Stock under this Warrant until all required
governmental filings and approvals relating to such Common Stock or the issuance
thereof, if any, have been made and obtained by the Company and the holder of
this Warrant under or in respect of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976. The Company and the holder of this Warrant will cooperate with each
other in connection with the making of any such filing in a prompt manner, and
the Company will pay all filing fees and reasonable expenses (including, the
reasonable fees of holder's counsel) in connection therewith.
12. Transfer and Assignment.
Subject to the restrictions and conditions set forth herein and in the
Stock Purchase Agreement, this Warrant and all rights hereunder are
transferable, in whole or in part, on the books of the Company to be maintained
for such purposes, upon surrender of this Warrant at the office of the Company,
accompanied by a written assignment duly executed by the Holder hereof and each
transferee in substantially the form attached hereto, indicating the number of
Warrants being transferred, the name, address and tax identification number of
each transferee and containing investment representations and warranties by the
transferee substantially identical to those set forth in the Stock Purchase
Agreement. Upon any such delivery, the Company shall execute and deliver to the
Holder or the transferee(s) or both (as the case may be) new warrants (in
substantially the form of this Warrant) in the appropriate denominations, and
this Warrant shall thereupon be canceled.
6
<PAGE>
13. Miscellaneous.
The provisions of this Warrant shall be construed and shall be
given effect in all respects as if it had been issued and delivered by the
Company on the date of this Warrant. This Warrant shall be binding upon any
successors or assigns of the Company and shall inure to the benefit of all
transferees and assigns of the holder. This Warrant shall constitute a contract
under the laws of the State of New York and for all purposes shall be construed
in accordance with and governed by the laws of said state, without regard to New
York conflicts of law.
[Remainder of page intentionally left blank]
7
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Warrant to
be executed by its duly authorized officer on the date first above written.
THE A CONSULTING TEAM, INC.
By: _________________________
Name:
Title:
<PAGE>
Form of Exercise
-------------------------------------------------------------------------------
[To be signed upon exercise of Warrant]
The undersigned, the holder of the within Warrants, hereby irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _________ shares of Common Stock of THE A CONSULTING TEAM, INC., and
herewith makes payment of $_________ therefor, and requests that the
certificates for such shares be issued in the name of and delivered to,
_________________________________, whose address is ___________________________
___________________________________________.
Dated:
[Name of Holder]
By: _____________________________
Name:
Title:
_________________________________
(Address)
<PAGE>
Form of Assignment
-------------------------------------------------------------------------------
[To be signed only upon transfer of Warrant]
For value received, ____________________ (the "Transferor")
hereby sells, assigns and transfers unto _________________ (the "Transferee")
the right represented by the within Warrant to purchase _______ shares of Common
Stock of THE A CONSULTING TEAM, INC., to which the within Warrant relates, and
appoints _______________ Attorney to transfer such right on the books of THE A
CONSULTING TEAM, INC., with full power of substitution in the premises. The
Transferee hereby confirms and agrees to, for the benefit of the Transferor and
The A Consulting Team, Inc., the accuracy of the representations set forth on
Exhibit A hereto.
Dated: [Name of Transferor]
By:____________________________
Name:
Title:
[Name of Transferee]
By:____________________________
Name:
Title:
<PAGE>
EXHIBIT A
---------
Investment Representations and Warranties.
------------------------------------------
The Transferee hereby confirms and agrees to, for the benefit of the
Transferor and The A Consulting Team, Inc., the accuracy of the following
representations and warranties.
1. The Warrant and any shares of common stock of The A Consulting Team,
Inc. issuable upon exercise thereof (the "Warrant Shares") which are acquired by
the Transferee will be acquired by it for its own account, for investment and
not with a view to the distribution thereof, nor with any present intention of
distributing the same. The Transferee further understands and agrees to the
transfer restrictions on the Warrant and the Warrant Shares set forth in the
Stock Purchase Agreement dated as of September 29, 2000 between The A Consulting
Team, Inc. and the Transferor (the "Stock Purchase Agreement") in the event the
Transferee desires to transfer the Warrant or any Warrant Shares.
2. The Transferee understands that, except as provided in Section 5 of
the Stock Purchase Agreement, the Warrant acquired by it has not been, and the
Warrant Shares will not be, registered under the Securities Act of 1933, as
amended (the "Securities Act") or registered or qualified under any state
securities or "blue-sky" laws, by reason of their issuance in a transaction
exempt from the registration and/or qualification requirements thereof, and that
they must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or registered or qualified under any
applicable state securities or "blue-sky" laws or is exempt from registration
and/or qualification.
3. The Transferee understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to the Transferee)
promulgated under the Securities Act depends on the satisfaction of various
conditions and that, if applicable, Rule 144 may only afford the basis for sales
under certain circumstances and only in limited amounts.
4. The Transferee acknowledges that it has met with representatives of
The A Consulting Team, Inc. and has had the opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of the
Warrant and the Warrant Shares, and to obtain any additional information which
The A Consulting Team, Inc. possessed or could acquire without unreasonable
effort or expense, and has generally such knowledge and experience in business
and financial matters and with respect to such investments as to enable the
Transferee to understand and evaluate the risks of such investment and form an
investment decision with respect thereto.
5. The Transferee has no need for liquidity in its investment in The A
Consulting Team, Inc., and is able to bear the economic risk of such investment
for an indefinite period and to afford a complete loss thereof.
6. The Transferee is an "accredited investor" as such term is defined
in Rule 501 (the provisions of which are known to the Transferee) promulgated
under the Securities Act.
7. The Transferee has not been formed solely for the purpose of
effecting its investment hereunder.
8. The Transferee acknowledges that the securities laws and state
fiduciary laws impose certain obligations on persons who trade on or divulge
material non-public information of publicly traded companies.
<PAGE>
EXHIBIT B
---------
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SUCH ACT. ADDITIONALLY, UNTIL
SEPTEMBER 29, 2002, THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE
CONDITIONS, INCLUDING A RIGHT OF FIRST OFFER, SPECIFIED IN THE STOCK PURCHASE
AGREEMENT DATED AS OF SEPTEMBER 29, 2000, BETWEEN THE A CONSULTING TEAM, INC.
AND THE OTHER PARTY THERETO, AND NO TRANSFER OF THESE SECURITIES SHALL BE VALID
OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. UPON THE FULFILLMENT OF
CERTAIN OF SUCH CONDITIONS, THE A CONSULTING TEAM, INC. HAS AGREED TO DELIVER TO
THE HOLDER HEREOF A NEW CERTIFICATE, NOT BEARING THIS LEGEND, FOR THE SECURITIES
REPRESENTED HEREBY REGISTERED IN THE NAME OF SUCH HOLDER. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF
RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE A CONSULTING TEAM, INC."
