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Exhibit 4.2
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
March 19, 2000
THE A CONSULTING TEAM, INC.
WARRANT
THIS CERTIFIES that, for value received, ______________, or assigns,
is entitled to subscribe for and purchase from THE A CONSULTING TEAM, INC., a
New York corporation (the "Company"), up to [portion of 607,142] shares (the
"Warrant Shares") of Common Stock, $.01 par value (the "Common Stock") of the
Company at a purchase price of $7.00 per share (the "Warrant Price") at any time
during the sixty-day period commencing on the date hereof and ending on May 19,
2000 (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
Subscription 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.
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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 3,
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 existing 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 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
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hereunder. The Company further covenants and agrees that the Company will from
time to time take all such action as may be requisite to assure that the stated
or par value per share of the Common Stock is at all times equal to or less than
the then effective Warrant Price per share of the Common Stock issuable upon
exercise of this Warrant. The Company further covenants and agrees that the
Company will at all times have authorized and reserved, free from preemptive
rights, a sufficient number of shares of its Common Stock to provide for the
exercise of the rights represented by this Warrant. The Company further
covenants and agrees that if any shares of capital stock to be reserved for the
purpose of the issuance of shares of capital stock upon the exercise of this
Warrant require registration with or approval of any governmental authority
under any Federal or state law before such shares may be validly issued or
delivered upon exercise, then the Company will in good faith and expeditiously
as possible endeavor to secure such registration or approval, as the case may
be. If and so long as any capital stock of the Company is listed on any national
securities exchange or the NASDAQ stock market, the Company will, if permitted
by the rules of such exchange, list and keep listed on such exchange, upon
official notice of issuance, all shares of such capital stock issuable upon
exercise of this Warrant.
5. No Shareholder Rights.
This Warrant shall not entitle the holder hereof to any voting
rights or other rights as a shareholder of the Company.
6. Restrictions on Transfer; Etc.
(i) The Company may deem and treat the person in whose name this Warrant is
registered as the holder and owner hereof for all purposes and shall not
be affected by any notice to the contrary. The holder of this Warrant by
acceptance hereof agrees that the transfer of the Warrant Shares are
subject to the provisions set forth in this Section 6. 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 undersigned of even date herewith (the "Stock Purchase
Agreement"), and the applicable provisions of the Stock Purchase Agreement
are hereby incorporated herein by reference.
(ii) Each certificate representing Warrant Shares shall (unless otherwise
permitted by the provisions of paragraph (c) and (d) below) be stamped or
otherwise imprinted with a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
SUCH ACT. ADDITIONALLY, UNTIL MARCH 19, 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 MARCH
19, 2000, AMONG THE A CONSULTING TEAM, INC. AND THE OTHER PARTIES
THERETO, AND
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NO TRANSFER OF THESE SECURITIES SHALL BE VALID OR EFFECTIVE UNTIL
SUCH CONDITIONS HAVE BEEN FULFILLED. UPON THE FULFILLMENT OF CERTAIN
OF SUCH CONDITIONS, THE A CONSULTING TEAM, INC. HAS AGREED TO
DELIVER TO THE HOLDER HEREOF A NEW CERTIFICATE, NOT BEARING THIS
LEGEND, FOR THE SECURITIES REPRESENTED HEREBY REGISTERED IN THE NAME
OF SUCH HOLDER. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST
BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE
TO THE SECRETARY OF THE A CONSULTING TEAM, INC."
(iii) The holder of any Warrant Shares by acceptance thereof agrees, prior to
any transfer of any Warrant Shares, to give written notice to the Company
of such holder's intention to effect such transfer and to comply in all
other respects with the provisions of this Section and Section 8 of the
Stock Purchase Agreement. The holder delivering such notice concurrently
shall deliver a written opinion, addressed to the Company, of counsel for
the holder of the Warrant Shares, 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 8 of the Stock Purchase Agreement,
such holder of Warrant Shares shall be entitled to transfer such Warrant
Shares in accordance with the terms of the notice delivered to the
Company, so long as the Company does not reasonably object to such opinion
within three business days after delivery thereof. Each certificate or
other instrument evidencing the securities issued upon the transfer of any
Warrant Shares (and each certificate or other instrument evidencing any
untransferred balance of such Warrant Shares) shall bear the legend set
forth in paragraph (b) above unless (i) in the opinion of counsel to the
Company registration of any future transfer is not required by the
applicable provisions of the Securities Act or (ii) the Company shall have
waived the requirement of such legends or a legend is no longer required
by applicable provisions of the Securities Act.
(iv) Notwithstanding the foregoing provisions of this Section, the restrictions
imposed by this Section upon the transferability of the Warrants or any
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.
7. Amendment.
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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 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 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 Section 8. The provisions of this Section 9 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.
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. The Company
further agrees to notify the
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holder in writing of a reorganization, merger or sale in accordance with Section
9 hereof at least thirty (30) days prior to the effective date thereof.
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.
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.
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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:
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Form of Subscription
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[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:
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(Signature)
---------------------------------
(Address)
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Form of Assignment
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[To be signed only upon transfer of Warrant]
For value received, the undersigned hereby sells, assigns and
transfers unto ________ 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.
Dated:
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(Signature)
Signed in the presence of:
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