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Exhibit 4.4
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW
AND MAY NOT BE TRANSFERRED EXCEPT (i) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR (ii) UPON FIRST FURNISHING TO THE COMPANY AN OPINION
OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER IS NOT IN VIOLATION OF THE
REGISTRATION REQUIREMENTS OF THE ACT OR ANY STATE SECURITIES LAW.
THE SHARES OF STOCK THAT WOULD BE ISSUED UPON EXERCISE OR CONVERSION OF THIS
WARRANT ARE SUBJECT TO A CERTAIN REGISTRATION RIGHTS AGREEMENT, AS AMENDED FROM
TIME TO TIME, AMONG THE COMPANY, THE REGISTERED OWNER OF THIS WARRANT (OR ITS
PREDECESSOR IN INTEREST) AND OTHERS, AND SUCH AGREEMENT IS AVAILABLE FOR
INSPECTION WITHOUT CHARGE AT THE OFFICES OF THE COMPANY.
AZTEC TECHNOLOGY PARTNERS, INC.
FORM OF WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, ___________________ ("Bank")
is entitled to subscribe for and purchase _______________ shares (subject to
adjustment from time to time pursuant to the provisions of Section 5 hereof) of
Common Stock, $0.001 par value per share (the "Company Common Stock"), of AZTEC
TECHNOLOGY PARTNERS, INC., a Delaware corporation (the "COMPANY"), at the
Warrant Price (as defined in Section 2 hereof), subject to the provisions and
upon the terms and conditions hereinafter set forth. The shares of Common Stock
issuable upon exercise or conversion of this Warrant are referred to herein as
"WARRANT SHARES."
As used herein, the term "COMMON STOCK" shall mean the Company Common
Stock purchasable upon exercise of this Warrant, together with any other equity
securities that may be issued by the Company in substitution, conversion or
exchange therefor.
This Warrant to purchase Common Stock (this "WARRANT") is issued
pursuant to that certain Fourth Amendment to Revolving Credit Agreement dated as
of September __, 2000 (the "FOURTH AMENDMENT"), among Fleet National Bank, as
agent (the "AGENT"), Bank and the other banks party thereto (together with the
Bank, collectively called the "BANKS"), the Company and its Subsidiaries.
1. TERM OF WARRANT. This Warrant may be exercised or converted, in
whole or in part, at any time during the period beginning on the date hereof
(the "ISSUE DATE") and ending at 5:00 p.m. Boston time on the third anniversary
of the Issue Date (the "EXPIRATION DATE").
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2. WARRANT PRICE. The price per share of Common Stock payable upon
exercise of this Warrant is $.01, subject to adjustment from time to time
pursuant to the provisions of Section 5 hereof (the "WARRANT PRICE").
3. METHOD OF EXERCISE OR CONVERSION; PAYMENT; ISSUANCE OF NEW WARRANT.
(a) EXERCISE. Subject to Section 1 hereof, this Warrant may be
exercised by the holder hereof, in whole or in part, by the surrender of this
Warrant (with the notice of exercise form attached hereto as EXHIBIT A duly
executed) at the principal office of the Company and by the payment to the
Company, by check or wire transfer, of an amount equal to the then applicable
Warrant Price per share multiplied by the number of shares then being purchased.
(b) CONVERSION. In lieu of paying the Warrant Price in cash, the
holder may convert this Warrant, in whole or in part, into the number of Warrant
Shares calculated pursuant to the following formula by surrendering this Warrant
(with the notice of exercise form attached hereto as EXHIBIT A duly executed) at
the principal office of the Company, specifying the number of shares of Common
Stock of the Company subject to this Warrant that the holder desires to convert:
X = Y (A - B)
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A
where X = the number of shares of Common Stock to be
issued to the holder;
Y = the number of shares of Common Stock
subject to this Warrant being surrendered
for conversion;
A = the fair market value of one share of Common
Stock; and
B = the Warrant Price
As used herein, the "fair market value" of a share of Common Stock
shall mean the closing price per share of the Company's Common Stock on the
principal national securities exchange on which the Common Stock is then listed
or admitted to trading or, if not then listed or admitted to trading on any such
exchange, on the Nasdaq National Market, or if not then listed or traded on any
such exchange or market, the bid price per share on the Nasdaq Small Cap Market
or, in the sole discretion of the Board of Directors of the Company, any other
over-the-counter market, including the OTC Bulletin Board, which reports bid and
asked or last sale prices and volume of sales, in each case averaged over the
last five consecutive trading days before the day on which notice of exercise
duly executed and this Warrant are duly delivered to the Company. If at any time
such quotations are not available, the current fair market value of a share of
Common Stock shall be the highest price per share which the Company could obtain
from a willing buyer (not a current employee or director) for shares of Common
Stock sold by the Company,
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from authorized but unissued shares, as determined in good faith by the Board of
Directors of the Company. Upon any exercise or conversion of this Warrant, the
Company shall deliver certificates for the Warrant Shares so acquired and,
unless this Warrant has been fully converted or exercised, or has expired, a new
Warrant representing the portion of the Warrant Shares, if any, remaining
unexercised.
4. STOCK FULLY PAID; RESERVATION OF SHARES. All Warrant Shares will,
upon issuance in accordance herewith, be fully paid and nonassessable and free
from all taxes, liens and charges with respect to the issue thereof. During the
term of this Warrant, the Company will at all times have authorized and reserved
for the purpose of the issuance upon exercise or conversion of this Warrant a
sufficient number of shares of its Common Stock to provide for the complete
exercise of the rights represented by this Warrant.
5. ADJUSTMENTS.
(a) STOCK DIVIDENDS AND STOCK SPLITS. If, at any time after the
date hereof and before the Expiration Date, (i) the Company shall fix a record
date for the issuance of any stock dividend payable in shares of Common Stock or
(ii) the number of shares of Common Stock outstanding shall have been increased
by a subdivision or split-up of shares of Common Stock, then, on the record date
fixed for the determination of holders of Common Stock entitled to receive such
dividend or immediately after the effective date of such subdivision or
split-up, as the case may be, the number of shares of Common Stock to be
delivered upon exercise of this Warrant will be appropriately increased so that
the holder thereafter will be entitled to receive the number of shares of Common
Stock that the holder would have owned immediately following such action had
this Warrant been fully exercised immediately prior thereto, and the Warrant
Price will be appropriately adjusted.
(b) COMBINATION OF STOCK. If, at any time after the date hereof
and before the Expiration Date, the number of shares of Common Stock outstanding
shall have been decreased by a reverse stock split or other combination of the
outstanding shares of Common Stock, then, immediately after the effective date
of such combination, the number of shares of Common Stock to be delivered upon
exercise of this Warrant will be appropriately decreased so that the holder
thereafter will be entitled to receive the number of shares of Common Stock that
the holder would have owned immediately following such action had such Warrant
been fully exercised immediately prior thereto, and the Warrant Price will be
appropriately adjusted.
(c) REORGANIZATION, ETC. If any capital reorganization of the
Company or any part thereof, or any reclassification of the Common Stock, or any
consolidation of the Company with or merger of the Company with or into any
other person or any sale, lease or other transfer of all or substantially all of
the assets of the Company to any other person (including any individual,
partnership, joint venture, corporation, trust or group thereof) shall be
effected in such a way
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that, following consummation of such transaction, the holders of Common Stock
shall be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, upon exercise or conversion of this Warrant in
accordance with Section 3 hereof, the holder shall have the right to receive the
kind and amount of stock, securities or assets receivable upon such
reorganization, reclassification, consolidation, merger or sale, lease or other
transfer by a holder of the number of shares of Common Stock that the holder
would have been entitled to receive upon exercise or conversion of this Warrant
pursuant to Section 3 hereof had such Warrant been exercised or converted
immediately before such reorganization, reclassification, consolidation, merger
or sale, lease or other transfer, subject to adjustments that shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Section
5.
(d) LIMITATIONS. Anything in this Section 5 to the contrary
notwithstanding, no adjustment in the Warrant Price in accordance with the
provisions of 5(a), 5(b), or 5(c) hereof need be made if such adjustment would
amount to a change in such Warrant Price of less than $0.01; PROVIDED, HOWEVER,
that the amount by which any adjustment is not made by reason of the provisions
of this Section 5(d) shall be carried forward and taken into account at the time
of any later adjustment in the Warrant Price.
(e) READJUSTMENTS. If an adjustment is made under Sections 5(a),
5(b), or 5(c) and the event to which the adjustment relates does not occur or is
rescinded, then any adjustments in the Warrant Price or the number of Warrant
Shares that were made in accordance with such sections shall be adjusted back to
the Warrant Price and the number of Warrant Shares that were in effect
immediately before the date of or record date for such event.
(f) NOTICE OF ADJUSTMENT UNDER THIS WARRANT. Upon any adjustment
of the Warrant Price or the number of Warrant Shares, then, and in each such
case, the Company shall give written notice thereof, in the form of an officer's
certificate, to the holder hereof, which notice shall state the Warrant Price
resulting from such adjustment and the increase or decrease, if any, in the
number of Warrant Shares at such price upon the exercise of this Warrant,
setting forth in reasonable detail the method of calculation and the facts upon
which such calculation is based. However, failure to give such notice, or any
defect therein, shall not affect the legality or validity of the subject
adjustments.
(g) CERTIFICATE OF INDEPENDENT PUBLIC ACCOUNTANTS. The Company
may, but is not obligated to, retain a firm of independent public accountants of
recognized national standing (who may be any such firm regularly employed by the
Company) to make any computation required under this Section 5, and a
certificate signed by such firm shall be conclusive evidence of the correctness
of the computation made under this Section 5.
6. FRACTIONAL SHARES. No fractional shares of Common Stock will be
issued in connection with any exercise hereunder, but in lieu of such fractional
shares the
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Company shall make a cash payment therefor upon the basis of the fair market
value of a share of Common Stock as of the date of exercise.
7. COMPLIANCE WITH THE ACT. The holder of this Warrant, by acceptance
hereof, represents and agrees that this Warrant and the shares of Common Stock
to be issued upon exercise hereof are being acquired for investment for such
holder's own account and not with a view toward distribution hereof or thereof,
and that it will not offer, sell, transfer or otherwise dispose of this Warrant
or any Shares unless such transaction has been registered under the Act and
applicable state securities laws or (i) such registration is not required and
(ii) an opinion of counsel satisfactory to the Company is furnished to the
Company to that effect.
8. MISCELLANEOUS.
(a) NO RIGHTS AS SHAREHOLDER. No holder of this Warrant, as such,
shall be entitled to vote or receive dividends or be deemed the holder of Common
Stock or any other securities of the Company which may at any time be issuable
on the exercise hereof for any purpose, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders 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 to receive dividends or
subscription rights or otherwise until this Warrant shall have been duly
exercised or converted and the shares purchasable upon the exercise or
conversion hereof shall have become deliverable, as provided herein, and then,
the holder of this Warrant shall only have such rights with respect to such
shares received pursuant to such exercise or conversion.
(b) REPLACEMENT. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this Warrant and,
in the case of loss, theft or destruction, on delivery of an indemnity
agreement, or bond reasonably satisfactory in form and amount to the Company or,
in the case of mutilation, on surrender and cancellation of this Warrant, the
Company will execute and deliver, in lieu of this Warrant, a new warrant of like
tenor.
(c) NOTICE. Any notice given to either party under this Warrant
shall be in writing, and any notice hereunder shall be deemed to have been given
upon the earlier of (i) delivery thereof by hand delivery, by courier, or by
standard form of telecommunication, and (ii) three (3) business days after the
mailing thereof if sent registered or certified mail with postage prepaid,
addressed to the Company at its principal executive offices or to the holder at
its address set forth in the Company's books and records or at such other
address as the holder may have provided to the Company in writing.
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(d) NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, 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 to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions in the
Warrant.
(e) GOVERNING LAW. This Warrant shall be governed by and construed
under the laws of the State of Delaware.
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IN WITNESS WHEREOF, this Warrant is executed as of this ____ day of
__________, 2000.
AZTEC TECHNOLOGY PARTNERS, INC.
By: _______________________________
Name:
Title:
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EXHIBIT A
NOTICE OF EXERCISE
TO: AZTEC TECHNOLOGY PARTNERS, INC.
1. Check Box that Applies:
/ / The undersigned hereby elects to purchase ______ shares of Common
Stock pursuant to the terms of the attached Warrant, and tenders herewith cash
payment of the purchase price of such shares in full.
/ / The undersigned hereby elects to convert ______ shares subject to
the attached Warrant into shares of shares of Common Stock pursuant to the terms
of the attached Warrant.
2. Please issue a certificate or certificates representing said shares
of Common Stock in the name of the undersigned or in such other name as is
specified below:
Name: ________________________________________
[Typed Name of Holder]
Address: _____________________________________
_____________________________________
_____________________________________
Signature: ___________________________________
Name:
Title:
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