<PAGE>
As filed with the Securities and Exchange Commission on May 1, 2000
Registration Statement No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-3
-----------------
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------
AZTEC TECHNOLOGY PARTNERS, INC.
(Exact name of registrant as specified in its charter)
-----------------
Delaware 04-3408450
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
50 BRAINTREE HILL OFFICE PARK, SUITE 220
BRAINTREE, MASSACHUSETTS 02184
(781) 849-1702
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
IRA COHEN
PRESIDENT AND CHIEF OPERATING OFFICER
50 BRAINTREE HILL OFFICE PARK, SUITE 220
BRAINTREE, MASSACHUSETTS 02184
(781) 849-1702
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
-----------------
Copies to:
Alexander A. Bernhard, Esq. Stuart R. Nayman, Esq.
Hale and Dorr LLP Hale and Dorr LLP
60 State Street 405 Lexington Avenue
Boston, Massachusetts 02109 New York, New York 10174
Tel: (617) 526-6000 Tel: (212) 937-7200
Fax: (617) 526-5000 Fax: (212) 937-7300
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / 333-_______.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / / 333-__________.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------- -------------- -------------- ----------------- ----------------
Proposed Proposed
Amount Maximum Maximum
to be Offering Price Aggregate Amount of
Title of Shares to be Registered Registered Per Share(1) Offering Price(1) Registration Fee
- -------------------------------------------------- -------------- -------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share....... 1,135,501 $3.59 $4,080,707.70 $1,078.00
- -------------------------------------------------- -------------- -------------- ----------------- ---------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act and based upon the
average of the high and low prices on the Nasdaq National Market on
April 24, 2000.
-----------------
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
SHALL DETERMINE.
================================================================================
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND WE ARE NOT SOLICITING OFFERS TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MAY 1, 2000
PROSPECTUS
AZTEC TECHNOLOGY PARTNERS, INC.
1,135,501 SHARES OF COMMON STOCK
----------------------
In March 2000, we agreed to issue warrants to acquire shares of our
common stock to a group of banks if we did not satisfy various provisions of
our credit agreement. As of , we have issued warrants to
acquire shares of common stock. This prospectus relates to resales of
shares of common stock that warrant holders will receive upon conversion of
their warrants.
We will not receive any proceeds from the sale of the shares. However,
we will receive $0.01 for each warrant exercised, unless warrant holders make
"cashless" exercises of warrants.
The selling stockholders identified in this prospectus, or their
pledgees, donees, transferees or other successors-in-interest, may offer the
shares from time to time through public or private transactions at prevailing
market prices, at prices related to prevailing market prices or at privately
negotiated prices.
Our common stock is traded on the Nasdaq Small Cap Market under the
symbol "AZTC." On April 28, 2000, the closing sale price of the common stock on
Nasdaq was $3.81 per share.
----------------------
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD
CAREFULLY READ THE INFORMATION UNDER THE CAPTION "RISK FACTORS" ON PAGE 3.
----------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------------------
The date of this prospectus is , 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
THE COMPANY..................................................3
RISK FACTORS.................................................3
USE OF PROCEEDS..............................................3
SELLING STOCKHOLDERS.........................................3
PLAN OF DISTRIBUTION.........................................5
LEGAL MATTERS................................................6
EXPERTS......................................................6
WHERE YOU CAN FIND MORE INFORMATION..........................6
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............6
</TABLE>
We have not authorized anyone to provide you with information different
from that contained or incorporated by reference in this prospectus. The selling
stockholders are offering to sell, and seeking offers to buy, shares of our
common stock only in jurisdictions where offers and sales are permitted. The
information contained in this prospectus is accurate only as of the date of this
prospectus, regardless of the time of delivery of this prospectus or of any sale
of common stock.
-2-
<PAGE>
THE COMPANY
Aztec Technology Partners, Inc. is a provider of e-Solutions for
businesses, helping clients exploit Internet, intranet and extranet technologies
for a competitive advantage. We provide a broad range of services principally in
the Northeast region of the United States and, to a lesser extent, in other
regions of the United States. Our executive offices are located at 50 Braintree
Hill Office Park, Suite 220, Braintree, Massachusetts 02184, our telephone
number is (781) 849-1702 and our Internet address is www.aztectech.com. The
information on our Internet website is not incorporated by reference in this
prospectus. Unless the context otherwise requires, references in this prospectus
to "Aztec," "we," "us," and "our" refer to Aztec Technology Partners, Inc. and
its subsidiaries.
RISK FACTORS
Investing in our common stock involves a high degree of risk. Our
Annual Report on Form 10-K for the fiscal year ended December 31, 1999 that we
filed with the Securities and Exchange Commission contains a discussion of risk
factors in "Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations" under the caption "Factors That May Affect Future
Results." That discussion of risk factors, and any subsequent discussion of risk
factors contained in any future filings that we make with the SEC after the date
of this prospectus, is expressly incorporated by reference into this "Risk
Factors" section. You should carefully review that discussion before investing
in our common stock. See the information in this prospectus under the caption
"Incorporation of Certain Documents by Reference" for information on how to
obtain a copy of the information incorporated by reference into this prospectus.
USE OF PROCEEDS
We will not receive any proceeds from the sale of shares by the selling
stockholders. However, we will receive $0.01 for each warrant exercised, unless
warrant holders make "cashless" exercises of warrants.
The selling stockholders will pay any underwriting discounts and
commissions and expenses that they incur for brokerage, accounting, tax or legal
services or any other expenses incurred by them in disposing of the shares. We
will bear all other costs, fees and expenses incurred in effecting the
registration of the shares covered by this prospectus, including, without
limitation, all registration and filing fees, Nasdaq listing fees, and fees and
expenses of our counsel and our accountants.
SELLING STOCKHOLDERS
In connection with the amendment to various provisions of our credit
agreement with our bank lenders dated as of March 30, 2000, we agreed that our
inability to sufficiently reduce the amount of the loan commitment on a timely
basis would result in the obligation to grant our bank lenders warrants to
purchase up to 4% of our common stock at a purchase price of $0.01 per share.
The warrants would be immediately exercisable and have a term of three years
from their issue date.
The issuance of the warrants and the number of shares of common stock
underlying the warrants will be based on the satisfaction of loan commitment
reduction milestones during 2000. If we are unable to reduce our loan commitment
by approximately 25% by June 30, 2000, we will be required to issue to our bank
lenders warrants to purchase 2% of our then outstanding common stock on a fully
diluted basis; if we are unable to reduce the loan commitment by approximately
40% by September 30, 2000, we will be required to issue warrants to purchase 3%
of our then outstanding common stock on a fully diluted basis; and if we are
unable to reduce the loan commitment by approximately 65% by December 31, 2000,
we will be required to issue warrants to purchase 4% of our then outstanding
common stock on a fully diluted basis. In no event will we be required to issue
warrants to purchase in the aggregate more than 4% of our outstanding common
stock on a fully diluted basis as of December 31, 2000. Based on our outstanding
common stock on a fully diluted basis as of April 27, 2000, we may be required
to issue warrants to purchase up to 1,135,501 shares of common stock.
-3-
<PAGE>
The warrants would entitle holders to purchase shares of our common
stock at a purchase price of $0.01 per share. In lieu of the payment of the
purchase price in cash, the holders of warrants may make "cashless" exercises of
warrants by surrendering their warrants and converting them into common stock
according to the following formula: the product of the number of shares subject
to the holder's warrants and the difference between the fair market value of the
common stock underlying the warrants and the price of the warrants, all divided
by the fair market value of the common stock underlying the warrants.
The number of shares of common stock issuable upon the exercise of the
warrants granted on any one of the three distribution dates is subject to
adjustment depending upon the number of shares of our common stock outstanding
on the date of issuance. For example, should we become obligated to issue
warrants to purchase 2% of our common stock on June 30, 2000 and then become
obligated to issue warrants to purchase 3% of our common stock on September 30,
2000, an increase in the number of outstanding shares between June 30, 2000 and
September 30, 2000 would result in an upward adjustment in the number of shares
underlying the warrants to be granted to the lending banks on the later date. In
this example, we would grant on September 30, 2000 an amount equal to the
difference between 2% of the number of outstanding shares on June 30, 2000 and
3% of the larger number of shares outstanding on September 30, 2000.
This prospectus relates to resales of the shares of common stock that
warrant holders may receive upon conversion of the warrants that they may
receive on June 30, 2000, September 30, 2000 and/or December 31, 2000. However,
our registration of the shares underlying the warrants does not necessarily mean
that we will be required to issue any warrants. Nor does this registration mean
that any holders of the warrants will convert and sell any of the shares
underlying warrants.
The following table sets forth information, as of , 2000,
with respect to the selling stockholders and the shares of common stock
underlying the warrants held by the selling stockholders. No selling
stockholder named in the table below beneficially owns one percent or more of
our common stock, assuming the exercise of the selling stockholder's
warrants. None of the selling stockholders has held any position or office
with, or has otherwise had a material relationship with, us or any of our
subsidiaries within the past three years, other than as lender.
<TABLE>
<CAPTION>
Percentage
of Shares
Shares of Common Number of
Underlying Stock Number of Shares of
Warrants Beneficially Shares of Common Stock Percentage of Shares of
Beneficially Owned Common Stock Beneficially Common Stock
Selling Owned Prior Prior to Offered Owned After Beneficially Owned
Stockholder to Offering Offering Hereby Offering(1) After Offering(1)
----------- ----------- -------- ------ ----------- -----------------
<S> <C> <C> <C> <C> <C>
</TABLE>
- --------------------------
* Less than one percent.
(1) We do not know when or in what amounts the selling stockholders may
offer shares for sale. The selling stockholders might not sell any or
all of the shares offered by this prospectus. Because the selling
stockholders may offer all or some of the shares pursuant to this
offering, and because there are currently no agreements, arrangements
or understandings with respect to the sale of any of the shares, we
cannot estimate the number of the shares that will be held by the bank
lenders in the event we grant to them the warrants. However, for
purposes of this table, we have assumed that, after completion of the
offering, none of the shares covered by this prospectus will be held by
the selling stockholders.
-4-
<PAGE>
PLAN OF DISTRIBUTION
The shares covered by this prospectus may be offered and sold from time
to time by the selling stockholders. The term "selling stockholders" includes
donees, pledgees, transferees or other successors-in-interest selling shares
received after the date of this prospectus from a selling stockholder as a gift,
pledge, partnership distribution or other non-sale related transfer. The selling
stockholders will act independently of us in making decisions with respect to
the timing, manner and size of each sale. Such sales may be made on one or more
exchanges or in the over-the-counter market or otherwise, at prices and under
terms then prevailing or at prices related to the then current market price or
in negotiated transactions. The selling stockholders may sell their shares by
one or more of, or a combination of, the following methods:
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account pursuant to this prospectus;
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
- block trades in which the broker-dealer so engaged will
attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the
transaction;
- an over-the-counter distribution in accordance with the rules
of the Nasdaq National Market;
- in privately negotiated transactions; and
- in options transactions.
In addition, any shares that qualify for sale pursuant to Rule 144 may
be sold under Rule 144 rather than pursuant to this prospectus.
To the extent required, this prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In connection
with distributions of the shares or otherwise, the selling stockholders may
enter into hedging transactions with broker-dealers or other financial
institutions. In connection with such transactions, broker-dealers or other
financial institutions may engage in short sales of the common stock in the
course of hedging the positions they assume with selling stockholders. The
selling stockholders may also sell the common stock short and redeliver the
shares to close out such short positions. The selling stockholders may also
enter into option or other transactions with broker-dealers or other financial
institutions which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction). The selling
stockholders may also pledge shares to a broker-dealer or other financial
institution, and, upon a default, such broker-dealer or other financial
institution, may effect sales of the pledged shares pursuant to this prospectus
(as supplemented or amended to reflect such transaction).
In effecting sales, broker-dealers or agents engaged by the selling
stockholders may arrange for other broker-dealers to participate. Broker-dealers
or agents may receive commissions, discounts or concessions from the selling
stockholders in amounts to be negotiated immediately prior to the sale.
In offering the shares covered by this prospectus, the selling
stockholders and any broker-dealers who execute sales for the selling
stockholders may be deemed to be "underwriters" within the meaning of the
Securities Act in connection with such sales. Any profits realized by the
selling stockholders and the compensation of any broker-dealer may be deemed to
be underwriting discounts and commissions.
In order to comply with the securities laws of certain states, if
applicable, the shares must be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
-5-
<PAGE>
We have advised the selling stockholders that the anti-manipulation
rules of Regulation M under the Exchange Act may apply to sales of shares in the
market and to the activities of the selling stockholders and their affiliates.
In addition, we will make copies of this prospectus available to the selling
stockholders for the purpose of satisfying the prospectus delivery requirements
of the Securities Act. The selling stockholders may indemnify any broker-dealer
that participates in transactions involving the sale of the shares against
certain liabilities, including liabilities arising under the Securities Act.
At the time a particular offer of shares is made, if required, a
prospectus supplement will be distributed that will set forth the number of
shares being offered and the terms of the offering, including the name of any
underwriter, dealer or agent, the purchase price paid by any underwriter, any
discount, commission and other item constituting compensation, any discount,
commission or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
We have agreed to indemnify the selling stockholders against certain
liabilities, including certain liabilities under the Securities Act.
LEGAL MATTERS
The validity of the shares offered by this prospectus has been passed
upon by Hale and Dorr LLP.
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K/A for the year ended December 31,
1999, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the
Securities and Exchange Commission. You may read and copy any document we file
at the SEC's public reference room at Judiciary Plaza Building, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549. You should call 1-800-SEC-0330
for more information on the public reference room. Our SEC filings are also
available to you on the SEC's Internet site at http://www.sec.gov.
This prospectus is part of a registration statement that we filed with
the SEC. The registration statement contains more information than this
prospectus regarding us and our common stock, including certain exhibits and
schedules. You can obtain a copy of the registration statement from the SEC at
the address listed above or from the SEC's Internet site.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate into this prospectus information that
we file with the SEC in other documents. This means that we can disclose
important information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this prospectus. Information contained in this prospectus and information
that we file with the SEC in the future and incorporate by reference in this
prospectus automatically updates and supersedes previously filed information. We
incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, prior to the sale of all the shares covered by this
prospectus.
(1) Our Annual Report on Form 10-K for the year ended
December 31, 1999;
(2) Our Amended Annual Report on Form 10-K/A for the year
ended December 31, 1999;
-6-
<PAGE>
(3) The description of our common stock contained in our
Registration Statement on Form 8-A filed with the SEC
on June 9, 1998; and
(4) any future filings we make with the SEC under the
Exchange Act after the date of filing the initial
registration statement and prior to effectiveness of
the registration statement.
You may request a copy of these documents, which will be provided to
you at no cost, by contacting:
Aztec Technology Partners, Inc.
50 Braintree Hill Office Park
Braintree, Massachusetts 02184
Attention: T. Kenwood Mullare, Secretary
Telephone: (781) 849-1702
-7-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be incurred in
connection with the sale and distribution of the securities being registered
hereby, all of which will be borne by Aztec Technology Partners, Inc. (except
any underwriting discounts and commissions and expenses incurred by the selling
stockholders for brokerage, accounting, tax or legal services or any other
expenses incurred by the selling stockholders in disposing of the shares). All
amounts shown are estimates except the Securities and Exchange Commission
registration fee.
<TABLE>
<S> <C>
Filing Fee - Securities and Exchange Commission .................... $ 1,078
Legal fees and expenses............................................. $40,000
Accounting fees and expenses........................................ $25,000
Miscellaneous expenses.............................................. $ 2,500
-------
Total Expenses............................................. $68,578
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware corporate law or obtained an improper
personal benefit. Aztec Technology Partners, Inc. has included such a provision
in its Certificate of Incorporation.
Section 145 of the General Corporation Law of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
The Company's Amended and Restated Certificate of Incorporation
indemnifies its directors as provided in the following provisions:
EIGHTH. Except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the
Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability.
No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
II-1
<PAGE>
NINTH. 1. ACTIONS, SUITS AND PROCEEDINGS OTHER THAN BY OR IN THE RIGHT
OF THE CORPORATION. The Corporation shall indemnify each person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or
in the right of the Corporation), by reason of the fact that he is or
was, or has agreed to become, a director or officer of the Corporation,
or is or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture, trust
or other enterprise (including any employee benefit plan) (all such
persons being referred to hereafter as an "Indemnitee"), or by reason
of any action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. Notwithstanding anything to the contrary in this Article,
except as set forth in Section 7 below, the Corporation shall not
indemnify an Indemnitee seeking indemnification in connection with a
proceeding (or part thereof) initiated by the Indemnitee unless the
initiation thereof was approved by the Board of Directors of the
Corporation. Notwithstanding anything to the contrary in this Article,
the Corporation shall not indemnify an Indemnitee to the extent such
Indemnitee is reimbursed from the proceeds of insurance, and in the
event the Corporation makes any indemnification payments to an
Indemnitee and such Indemnitee is subsequently reimbursed from the
proceeds of insurance, such Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such
insurance reimbursement.
2. ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was, or has
agreed to become, a director or officer of the Corporation, or is or
was serving, or has agreed to serve, at the request of the Corporation,
as a director, officer or trustee of, or in a similar capacity with,
another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys' fees) and, to the extent permitted
by law, amounts paid in settlement actually and reasonably incurred by
him or on his behalf in connection with such action, suit or proceeding
and any appeal therefrom, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of
the Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of Delaware shall determine upon
application that, despite the adjudication of such liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including
attorneys' fees) which the Court of Chancery of Delaware shall deem
proper.
3. INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. Notwithstanding
the other provisions of this Article, to the extent that an Indemnitee
has been successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this
Article, or in defense of any claim, issue or matter therein, or on
appeal from any such action, suit or proceeding, he shall be
indemnified against all expenses (including attorneys' fees) actually
and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or
proceeding is disposed of, on the merits or otherwise (including a
disposition without prejudice), without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was
liable to the Corporation, (iii) a plea of guilty or NOLO CONTENDERE by
the Indemnitee, (iv) an adjudication that the Indemnitee did not act in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and (v) with respect
to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to
II-2
<PAGE>
believe his conduct was unlawful, the Indemnitee shall be considered
for the purposes hereof to have been wholly successful with respect
thereto.
4. NOTIFICATION AND DEFENSE OF CLAIM. As a condition precedent to his
right to be indemnified, the Indemnitee must notify the Corporation in
writing as soon as practicable of any action, suit, proceeding or
investigation involving him for which indemnity will or could be
sought. With respect to any action, suit, proceeding or investigation
of which the Corporation is so notified, the Corporation will be
entitled to participate therein at its own expense and/or to assume the
defense thereof at its own expense, with legal counsel reasonably
acceptable to the Indemnitee. After notice from the Corporation to the
Indemnitee of its election so to assume such defense, the Corporation
shall not be liable to the Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 4. The Indemnitee shall
have the right to employ his own counsel in connection with such claim,
but the fees and expenses of such counsel incurred after notice from
the Corporation of its assumption of the defense thereof shall be at
the expense of the Indemnitee unless (i) the employment of counsel by
the Indemnitee has been authorized by the Corporation, (ii) counsel to
the Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue between the
Corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the Corporation shall not in fact have employed counsel
to assume the defense of such action, in each of which cases the fees
and expenses of counsel for the Indemnitee shall be at the expense of
the Corporation, except as otherwise expressly provided by this
Article. The Corporation shall not be entitled, without the consent of
the Indemnitee, to assume the defense of any claim brought by or in the
right of the Corporation or as to which counsel for the Indemnitee
shall have reasonably made the conclusion provided for in clause (ii)
above.
5. ADVANCE OF EXPENSES. Subject to the provisions of Section 6 below,
in the event that the Corporation does not assume the defense pursuant
to Section 4 of this Article of any action, suit, proceeding or
investigation of which the Corporation receives notice under this
Article, any expenses (including attorneys' fees) incurred by an
Indemnitee in defending a civil or criminal action, suit, proceeding or
investigation or any appeal therefrom shall be paid by the Corporation
in advance of the final disposition of such matter; PROVIDED, HOWEVER,
that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt
of an undertaking by or on behalf of the Indemnitee to repay all
amounts so advanced in the event that it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified by the
Corporation as authorized in this Article. Such undertaking shall be
accepted without reference to the financial ability of the Indemnitee
to make such repayment.
6. PROCEDURE FOR INDEMNIFICATION. In order to obtain indemnification or
advancement of expenses pursuant to Section 1, 2, 3 or 5 of this
Article, the Indemnitee shall submit to the Corporation a written
request, including in such request such documentation and information
as is reasonably available to the Indemnitee and is reasonably
necessary to determine whether and to what extent the Indemnitee is
entitled to indemnification or advancement of expenses. Any such
indemnification or advancement of expenses shall be made promptly, and
in any event within 60 days after receipt by the Corporation of the
written request of the Indemnitee, unless with respect to requests
under Section 1, 2 or 5 the Corporation determines within such 60-day
period that the Indemnitee did not meet the applicable standard of
conduct set forth in Section 1 or 2, as the case may be. Such
determination shall be made in each instance by (a) a majority vote of
the directors of the Corporation consisting of persons who are not at
that time parties to the action, suit or proceeding in question
("disinterested directors"), whether or not a quorum, (b) a majority
vote of a quorum of the outstanding shares of stock of all classes
entitled to vote for directors, voting as a single class, which quorum
shall consist of stockholders who are not at that time parties to the
action, suit or proceeding in question, (c) independent legal counsel
(who may, to the extent permitted by law, be regular legal counsel to
the Corporation), or (d) a court of competent jurisdiction.
7. REMEDIES. The right to indemnification or advances as granted by
this Article shall be enforceable by the Indemnitee in any court of
competent jurisdiction if the Corporation denies such request, in whole
or in part, or if no disposition thereof is made within the 60-day
period referred to above in Section 6. Unless otherwise required by
law, the burden of proving that the Indemnitee is not entitled to
indemnification or
II-3
<PAGE>
advancement of expenses under this Article shall be on the Corporation.
Neither the failure of the Corporation to have made a determination
prior to the commencement of such action that indemnification is proper
in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Corporation
pursuant to Section 6 that the Indemnitee has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of
conduct. The Indemnitee's expenses (including attorneys' fees) incurred
in connection with successfully establishing his right to
indemnification, in whole or in part, in any such proceeding shall also
be indemnified by the Corporation.
8. SUBSEQUENT AMENDMENT. No amendment, termination or repeal of this
Article or of the relevant provisions of the General Corporation Law of
Delaware or any other applicable laws shall affect or diminish in any
way the rights of any Indemnitee to indemnification under the
provisions hereof with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions
or facts occurring prior to the final adoption of such amendment,
termination or repeal.
9. OTHER RIGHTS. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other
rights to which an Indemnitee seeking indemnification or advancement of
expenses may be entitled under any law (common or statutory), agreement
or vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in any other
capacity while holding office for the Corporation, and shall continue
as to an Indemnitee who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and
administrators of the Indemnitee. Nothing contained in this Article
shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors
providing indemnification rights and procedures different from those
set forth in this Article. In addition, the Corporation may, to the
extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the Corporation
or other persons serving the Corporation and such rights may be
equivalent to, or greater or less than, those set forth in this
Article.
10. PARTIAL INDEMNIFICATION. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for
some or a portion of the expenses (including attorneys' fees),
judgments, fines or amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with any action, suit,
proceeding or investigation and any appeal therefrom but not, however,
for the total amount thereof, the Corporation shall nevertheless
indemnify the Indemnitee for the portion of such expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
11. INSURANCE. The Corporation may purchase and maintain insurance, at
its expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit
plan) against any expense, liability or loss incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law of
Delaware.
12. MERGER OR CONSOLIDATION. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the
surviving corporation, the surviving corporation shall assume the
obligations of the Corporation under this Article with respect to any
action, suit, proceeding or investigation arising out of or relating to
any actions, transactions or facts occurring prior to the date of such
merger or consolidation.
13. SAVINGS CLAUSE. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Indemnitee as to any
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement in connection with any action, suit, proceeding or
investigation, whether civil, criminal or administrative, including an
action by or in the right of the Corporation, to the fullest extent
permitted by any applicable portion of this Article that shall not have
been invalidated and to the fullest extent permitted by applicable law.
II-4
<PAGE>
14. DEFINITIONS. Terms used herein and defined in Section 145(h) and
Section 145(i) of the General Corporation Law of Delaware shall have
the respective meanings assigned to such terms in such Section 145(h)
and Section 145(i).
15. SUBSEQUENT LEGISLATION. If the General Corporation Law of Delaware
is amended after adoption of this Article to expand further the
indemnification permitted to Indemnitees, then the Corporation shall
indemnify such persons to the fullest extent permitted by the General
Corporation Law of Delaware, as so amended.
Aztec additionally has purchased a Directors, Officers and Corporate
Liability Insurance Policy which indemnifies the Company's directors and
officers against damages arising out of certain kinds of claims which might be
made against them based on their "wrongful acts," defined as "any breach of
duty, neglect, error, misstatement, misleading statement, omission or act by the
Directors and Officers of the Company in their respective capacities as such, or
any matter claimed against them solely by reason of their status as Directors or
Officers of the Company, or any matter claimed against them arising out of their
serving as a director, officer, trustee or governor of an Outside Entity in such
capacities, but only if such service is at the specific written request or
direction of the Company."
Aztec also has in place agreements with certain officers and directors
which affirm Aztec's obligation to indemnify them to the fullest extent
permitted by law.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
----------- ---------------
4.1 Amended and Restated Certificate of Incorporation
(Incorporated herein by reference to the Company's Form
10-K filed on July 24, 1998).
4.2 Amended and Restated By-laws (Incorporated herein by
reference to the Company's Form 10-K/A filed on April 28,
1998).
4.3 Amendment to the Amended and Restated Bylaws (Incorporated
herein by reference to the Company's Form 10-K/A filed on
May 1, 2000).
4.4 Form of certificate representing shares of Common Stock
(Incorporated herein by reference to the Company's
Registration Statement on Form S-1 (File No. 333-46533)
filed on June 10, 1998).
4.5 Form of Warrant.
4.6 Amendment to the Revolving Credit Agreement By and Among
the Company and Fleet National Bank, as agent, dated March
30, 2000 (Incorporated herein by reference to the Company's
Form 10-K/A filed on May 1, 2000).
4.7 Registration Rights Agreement By and Among the Company and
the banks named therein, dated as of April 21, 2000
(Incorporated herein by reference to the Company's Form
10-K/A filed on May 1, 2000).
5.1* Opinion of Hale and Dorr LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Hale and Dorr LLP, included in Exhibit 5.1 filed
herewith.
24.1 Power of Attorney (See page II-4 of this Registration
Statement).
- --------------
* To be filed by amendment.
II-5
<PAGE>
ITEM 17. UNDERTAKINGS.
ITEM 512(a) OF REGULATION S-K. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included is a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall be deemed
to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
ITEM 512(b) OF REGULATION S-K. The Registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at the time shall be deemed to be the initial BONA
FIDE offering thereof.
ITEM 512(h) OF REGULATION S-K. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
indemnification provisions described herein, or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such
II-6
<PAGE>
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Braintree, Commonwealth of Massachusetts, on May
1, 2000.
AZTEC TECHNOLOGY PARTNERS, INC.
By: /s/ IRA COHEN
-------------------------------------
Ira Cohen
President and Chief Operating Officer
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Aztec Technology
Partners, Inc., hereby severally constitute and appoint Ira Cohen, Ross J.
Weintraub, and Alexander A. Bernhard and each of them singly, our true and
lawful attorneys with full power to any of them, and to each of them singly, to
sign for us and in our names in the capacities indicated below the Registration
Statement on Form S-3 filed herewith and any and all pre-effective and
post-effective amendments to said Registration Statement and any related
Registration Statement filed pursuant to Rule 462(b) under the Securities Act
and generally to do all such things in our name and behalf in our capacities as
officers and directors to enable Aztec Technology Partners, Inc. to comply with
the provisions of the Securities Act of 1933, as amended, and all requirements
of the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
II-8
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ CLIFFORD MITMAN, JR. Chairman of the Board of Directors May 1, 2000
- -----------------------------------------
Clifford Mitman, Jr.
/s/ IRA COHEN President, Chief Operating Officer (Principal May 1, 2000
- -----------------------------------------
Ira Cohen Executive Officer)
/s/ ROSS J. WEINTRAUB Vice President Finance and Chief Financial Officer May 1, 2000
- -----------------------------------------
Ross J. Weintraub (Principal Financial and Accounting Officer)
/s/ JAMES E. CLAYPOOLE Director May 1, 2000
- -----------------------------------------
James E. Claypoole
/s/ LAWRENCE M. HOWELL Director May 1, 2000
- -----------------------------------------
Lawrence M. Howell
/s/ LEON KOPYT Director May 1, 2000
- -----------------------------------------
Leon Kopyt
/s/ JONATHAN J. LEDECKY Director May 1, 2000
- -----------------------------------------
Jonathan J. Ledecky
/s/ BENJAMIN TANDOWSKI Director May 1, 2000
- -----------------------------------------
Benjamin Tandowski
</TABLE>
II-9
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
----------- ---------------
4.1 Amended and Restated Certificate of Incorporation
(Incorporated herein by reference to the Company's Form 10-K
filed on July 24, 1998).
4.2 Amended and Restated By-laws (Incorporated herein by reference
to the Company's Form 10-K/A filed on April 28, 1998).
4.3 Amendment to the Amended and Restated Bylaws (Incorporated
herein by reference to the Company's Form 10-K/A filed on May
1, 2000).
4.4 Form of certificate representing shares of Common Stock
(Incorporated herein by reference to the Company's
Registration Statement on Form S-1 (File No. 333-46533) filed
on June 10, 1998).
4.5 Form of Warrant.
4.6 Amendment to the Revolving Credit Agreement By and Among the
Company and Fleet National Bank, as agent, dated March 30,
2000 (Incorporated herein by reference to the Company's Form
10-K/A filed on May 1, 2000).
4.7 Registration Rights Agreement By and Among the Company and the
banks named therein, dated as of April 21, 2000 (Incorporated
herein by reference to the Company's Form 10-K/A filed on May
1, 2000).
5.1* Opinion of Hale and Dorr LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Hale and Dorr LLP, included in Exhibit 5.1 filed
herewith.
24.1 Power of Attorney (See page II-4 of this Registration
Statement).
- ----------------
* To be filed by amendment.
<PAGE>
Exhibit 4.5
FORM OF WARRANT
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.
WARRANT TO PURCHASE COMMON STOCK
This certifies that, for value received, ___________________ ("Bank")
is entitled to subscribe for and purchase _______________(1) 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 Third Amendment to Revolving Credit Agreement dated as
- -------------------
(1) The number of Warrant Shares will equal the Bank's PRO RATA share of the
Warrant Shares for which Warrants are required to be issued on the date hereof
pursuant to the Third Amendment.
<PAGE>
of March 30, 2000 (the "THIRD 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").
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)
---------
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
- 2 -
<PAGE>
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, 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
- 3 -
<PAGE>
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 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.
- 4 -
<PAGE>
(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 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.
- 5 -
<PAGE>
(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.
(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.
IN WITNESS WHEREOF, this Warrant is executed as of this ____ day of
__________, 2000.
AZTEC TECHNOLOGY PARTNERS, INC.
By:_______________________________
Name:
Title:
- 6 -
<PAGE>
EXHIBIT A
NOTICE OF EXERCISE
TO: AZTEC TECHNOLOGY PARTNERS, INC.
1. Check Box that Applies:
-TM- 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.
-TM- 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:
- 7 -
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 30, 2000 relating to the
financial statements and financial statement schedules, which appears in
Aztec Technology Partners, Inc.'s Annual Report on Form 10-K/A for the year
ended December 31, 1999. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
May 1, 2000
